him to sit still or it would be worse for him. On indictment for assault with intent to murder, maim, and disable, the jury found that the defendant intended only to disable temporarily until he could escape; and on this finding all the judges, except two, held the conviction was wrong (10).

§ 38. Constructive specific intent. Where the specific intent is an essential element of the crime it must for the most part be made out by proof that the essential intention really and directly existed; and it is not enough to show that the accused had some other criminal intent from attempting which the crime charged resulted as a natural consequence. But to a certain extent this specific intent may be supplied by a construction similar to that which will suffice to make out the constructive general intent. For example, on a charge of assault with intent to kill one Thompson, it appeared that the defendant was a friend of Thompson, and would not intentionally injure him; but that, a brother of the defendant having been injured, the defendant designed to be revenged for this injury, and mistaking Thompson for the person who had committed the injury, stabbed him in the back with intention to kill. The court held that the intention to kill the person at whom he struck was the only intention essential; and that he mistook Thompson for the other man was immaterial (11). In another case the court held that assault with intent to do bodily harm to the person injured was made out by proof that the blow was struck

with intent to injure another and glanced off and injured the person named in the indictment (12).

But where the indictment was for malicious destruction of property it was held that the malice indicated by the intention to injure a person was not sufficient to sustain the charge, the missile having struck and injured the property (13).

From these cases it would seem that the only instances in which the specific intent can be supplied constructively is when the thing intended is of the same nature as the thing done.

SECTION 3. IMPEDIMENTS TO CRIMINAL INTENT.

§ 39. Corporations liable for crime. It was held in the early history of the law that, as a corporation was soulless, it could do no wrongful or immoral act, and could not, therefore, be liable in tort. This doctrine has long since become obsolete; but nevertheless it has been claimed that a corporation could not do a positive crime, because such acts would be beyond the powers conferred upon it by its charter. Such a rule would lead to its absolute immunity for all wrong, which the experience of today shows would produce great injustice both to individuals and the public. If it be said that the individuals who might do the act, would be liable, it may be said that this is true as to every servant or agent who does a wrong; but because this is so, the principal is not exempt. The object should be to reach and punish the real power in

(12) Queen v. Latimer, 16 Cox Cr. Cases 70.
(13) Queen v. Pemberton, 12 Cox Crim. Cases 607.

the matter, and thus prevent the repetition of the offense. It is true there are crimes which, from their very nature, as perjury, for example, corporations cannot commit. But wherever the offense consists in either a misfeasance or nonfeasance of duty to the public, and a corporation can be reached for punishment, as by fine and seizure of its property, precedent authorizes, and public policy requires, that it should be liable to indictment. Any other rule would in many cases preclude adequate remedy, and leave irresponsible servants to answer for the offense, rather than those who are really most at fault. If it be said that such a rule may subject the property of innocent stockholders to forfeiture for the acts of the directors to which they are not actually parties, and of which they have no knowledge, the answer is that they select the directors, and it is their business to have those who will see that the corporate business is conducted so as not to injure others. For these reasons corporations are now generally held liable for their criminal acts (14).

§ 40. Liability of married women. It is an old rule of the common law that inferior crimes committed by a married woman, in the presence of her husband, are presumed to have been committed by his command and compulsion, without the acquiescence of the woman; and for this reason the law still is that a married woman is not liable for minor crimes committed in the presence of her husband unless it appears that it was her own wilful act. But this rule does not extend to homicide; and therefore a married woman was held liable for murder in holding a man while

(14) Commonwealth v. Polaski C. A. M. Ass'n, 92 Ky. 197.

her husband killed him, although it was proved that he commanded her to do so, and swore at her because she did not obey to his satisfaction (15).

§ 41. Crime at command of superior. The fact that one in the employ of another is commanded by his employer to commit a known crime is no excuse to the inferior, and merely makes the superior liable. This rule holds good in all cases of persons under authority unless it be in the cases of soldiers and sailors in actual service, who at the command of a superior do an act of doubtful legality. The reason for this exception, if it be allowed at all, is that the necessity for immediate and implicit obedience is vital to the success of all military and naval maneuvers; and if a sailor or soldier were to stop to decide upon the validity of commands given to him, the power of the army and navy would be paralyzed (16).

§ 42. Duress as a defense to a criminal charge. That the defendant was in immediate fear and peril of life or limb, and did the act in self-preservation, has been allowed as a defense to minor crimes, such as malicious destruction of property. But this defense is never made out unless the proof shows that the duress and peril existed at the very time the act was committed, and that there was no opportunity for the defendant to escape. This defense never was allowed as to offenses touching life or any of the other heinous crimes. In such cases the law considers that the danger from allowing such defenses is so great that the person assaulted should be re

(15) Bibb v. State, 94 Ala. 31.

(16) United States v. Clark, 31 Fed. Rep. 710.

quired at his peril to defend himself rather than inflict the injury upon another (17).

§ 43. Self-preservation from peril. Where the peril to the defendant has arisen from natural causes and not from the crime of another, the courts have sometimes been perplexed to decide whether the natural instinct of self-preservation should be allowed as an excuse for taking the life of another. This point can be well illustrated by an actual case. Two men were indicted and convicted of murdering a boy on the high seas. The jury found by special verdict that the prisoners and deceased were escaped from a shipwreck, and adrift on the sea on a raft, with nothing to eat; and that, when near to starvation, they killed the boy and ate his flesh. The main defense was necessity. In denying the validity of this defense, Lord Chief Justice Coleridge said:

"From these facts, stated with the precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, and to suffering which might break down the bodily powers of the strongest man, and try the conscience of the best. * * It is clear, that the prisoners put to death a weak and unoffending boy, upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with a certainty of depriving him of any possible chance of survival. The verdict finds in terms that 'if the men had not fed on the body of the boy, they would probably not have survived,' and that 'the boy, being in a much weaker condition was likely to have died before them.' They

(17) Arp v. State, 97 Ala. 5.