A Treatise on Criminal Law as Applicable to the Dominion of Canada

ness of mind, amounting to lunacy, within 8 & 9 Vic., c. 100. (a)

It is the duty of the Government to assume the care and custody of persons acquitted of criminal charges on the ground of insanity, and this power is vested in the Government, independently of any statute. (b) The policy of the law in detaining insane persons in custody is to prevent them from committing the same offences again. (c)

The vice of drunkenness, which produces a perfect though temporary frenzy, or insanity, will not excuse the commission of any crime; and an offender under the influence of intoxication can derive no privilege from a madness voluntarily contracted, but is answerable to the law equally as if he had been in the full possession of his faculties at the time. (d) It has been said that, upon an indictment for murder, the intoxication of the defendant may be taken into consideration as a circumstance to shew that the act was not premeditated. (e) But if the primary cause of the frenzy be involuntary, or it has become habitual and confirmed, this species of insanity will excuse the offender equally as the other descriptions of this malady. (f)

Persons in Subjection to the Power of Others.-In general, a person committing a crime will not be answerable if he was not a free agent and was subject to actual force at the time the act was done. (g) This exemption also exists in the public and private relations of society; public as between subject and price, obedi

(a) Reg. v. Shaw, L. R. 1 C. C. R. 145, 37 L. J. (M. C.) 112.

(b) Re. v. Martin, 1 James, 322.

seq.
(d) Arch. Cr. Pldg. 18.

(e) key. v. Grindley, 1 Russ. 8.; Rej. v. Thomas, 7 C. & P. 817; Reg. v. Meakin, ib. 297; but see Reg. v. Carroll, ib. 145.

(ƒ) Árch. Cr. Pldg. 18.

(g) Russ. Cr. 32.

ence to existing laws being a sufficient extenuation of civil guilt before a municipal tribunal; and private, proceeding from the matrimonial subjection of the wife to the husband, from which the law presumes a coercion which, in many cases, excuses the wife from the consequences of criminal misconduct. The private relations which exist between parent and child, and master and servant, will not, however, excuse or extenuate the commission of any crime of whatever denomination; for the command is void in law and can protect neither the commander nor the instrument. (a) In general, if a crime be committed by a feme covert in the presence of her husband, the law presumes that she acted under his immediate coercion, and excuses her from punishment. (b) But if she commit an offence in the absence of her husband, even by his order or procurement, her coverture will be no defence (c); even though he appear at the very moment after the commission of the offence; and no subsequent act of his, though it may render him accessory to the felony of his wife, can be referred to what was done in his absence. (d) This presumption, however, may be rebutted by evidence; and if it appear that the wife was principally instrumental in the commission of the crime, acting voluntarily and not by restraint of her husband, although he was present and concurred, she will be guilty and liable to punishment. (e)

The protection does not extend to crimes which are mala in se, and prohibited by the law of nature, nor in such as are heinous in their character, or dangerous in their consequences; and, therefore, if a married woman be guilty

(a) Arch. Cr. Pldg. 22.

(b; Ib. 22; and see Reg. v. Smith, Dears. & B. C. C. 553.

(d) Keg. v. Hughes, 1 Russ 21.

(e) Reg. v. Cohen, 11 Cox 99; Reg. v. Dicks, 1 Russ. 19; Reg. v. Hammond, Leach, 447 Arch. Cr. Pldg. 22.

of treason, murder, or offences of the like description, in company with, or by coercion of, her husband, she is punishable equally as if she were sole. (a) So a married woman may be indicted jointly with her husband for keeping a bawdy house, (b) or gaming house, (c) for these are offences connected with the government of the house in which the wife has a principal share. (d) According to the prevailing opinion, it seems the wife may be indicted with her husband in all misdemeanors. (e) If a married woman incite her husband to the commission of a felony, she is accessory before the fact. (f) But she cannot be treated as an accessory for receiving her husband, knowing that he has committed a felony, nor for concealing a felony jointly with her husband, (g) nor for receiving from her husband goods stolen by him. (h) And she will not be answerable for her husband's breach of duty, however fatal, though she may be privy to his misconduct, if no duty be cast upon her, and she is merely passive. (i)

Ignorance. -The laws can only be administered upon the principle that they are known, because all persons are bound to know and obey them. (j) A mistake, or ignorance of law, is no defence for a party charged with a criminal act; (k) but it may be ground for an application to the merciful consideration of the Government.() But ignorance, or mistake of fact, may, in some

(a) Ib. 23; see Reg. v. Cruse, 8 C. & P., 541, 2 Mood. C. C. 53; Reg. v. Manning, 2 C. & K. 903 n.

(b) Reg. v. Williams, 10 Mod. 63, 1 Salk. 384

(d) Arch. Cr. Pldg. 23.

(e) Ib. 23; Reg. v. Ingram, 1 Salk. 384; but see Reg. v. Price, 8 C. & P. 19. (f) Reg. v. Manning, 2 C & K. 903 n.

(g) Arch. Cr. Pldg. 23.

(h) Reg. v. Brooks, Dears C. C. 184; see Re. v. Archer, 1 Mood. C. C. 143.

(i) Reg. v. Squires, 1 Russ. 16; Arch. Cr. Pldg. 23.

(Reg. v. Moodie, 20 U. C. Q. B. 399, per Robinson, C. J.

(k) Ib. Unwin & Clark, L. R. 1 Q. B. 417; Reg. v. Mayor Tewkesbury, L. R.

Q. B. 635, per Blackburn, J.

(1) Reg. v. Madden, 10 L. C. J. 344, per Johnson, J.

cases, be a defence; (a) as, for instance, if a man intending to kill a thief in his own house, kill one of his own family, he will be guilty of no offence. (b) But this rule proceeds upon a supposition that the original intention was lawful; for if an unforeseen consequence ensue from an act which was in itself unlawful, and its original nature wrong and mischievous, the actor is criminally responsible for whatever consequences may ensue. (c)

Principals in the First and Second Degrees.-The general definition of a principal in the first degree is one who is the actor or actual perpetrator of the fact. (d) Principals in the second degree are those who are present aiding and abetting at the commission of the fact. (e) To prove a person an aider or abettor, it must be shewn either that he was actually present aiding and in some way assisting in the commission of the offence, or constructively present for the same purpose—that is, in such a convenient situation as readily to come to the assistance of the others, and with the intention of doing so, should occasion require. (f) But there must be some participation, for the fact that a person is actually present at the commission of a crime does not necessarily make him an aider or abettor. If one sees a felony is about to be com mitted, and in no manner interferes to prevent it, he does not thereby participate in the felony committed, so as to render him liable as a principal in the second degree. It should be proved that he did or said something shewing his consent to the felonious purpose, and contributing to its execution. (g)

(a) Unwin & Clark, supra, 424, per Blackburn, J.; Rider v. Wood, 29 L. M. 1. (b) Reg. v. Levett, Cro. Car. 538.

(d) Arch. Cr. Pldg. 7.

(e) Ib. 8.

(f) Ashley v. Dundas, U. C. Q. B. O. S. 753, per Sherwood, J.; Reg. v. Curtley, 27 U. C. Q. B. 617, per Morrison, J.

(g) Reg. v. Curtley, 27 U. C. Q. B. 619, per Morrison, J.

If a fact amounting to murder should be committed in prosecution of some unlawful purpose, though it were but a bare trespass, all persons who had gone in order to give assistance, if necessary, for carrying such unlawful purpose into execution, would be guilty of murder. But this applies only to a case where the murder is committed in prosecution of some unlawful purpose-some common design, in which the combining parties were united, and for the effecting whereof they had assembled. (a) For when the act of homicide is not done with the concurrence of all those present, there must be evidence of a precedent common purpose to prosecute the unlawful enterprise, even to the extent of extreme and deadly violence. (b) Even in case of felony, there must either be a previous or present concurrence in the act by all to render them liable, (c) otherwise none but the party actually committing the act will be liable. (d)

In Curtley's case, the prisoner C. was indicted for aiding and abetting one M. in a murder, of which M. was convicted. It appeared that, about six in the evening, the deceased was with R. and his wife on the river bank at Amherstburg, standing near a pile of wood. R.'s wife saw M. standing behind the pile, who, on deceased going up to him, struck deceased with a stick, of which he died. Some time afterwards, deceased ran, when two other men sprang out, and followed him; but in a few seconds two of them returned, and assaulted her and her husband. She could not identify the prisoner. Two other wit nesses saw deceased running from the direction of the wood pile, and across the road, when he fell over a stick

(a) Reg. v. Curtley, 27 U. C. Q. B. 617, per Morrison, J.

(b) Ib. 617, per Morrison, J.; Rex v. Collison, 4 C. & P. 565; Reg. v. Howell, 9 C. & P. 450.

(d) Ib. 617, per Morrison, J.; Reg. v. Skeet, 4 F. & F. 931; Reg. v. Price, 8 Cox C. C. 96.

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