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ARTICLE 23.

PUNISHMENT OF MISDEMEANORS.

1 Every person convicted of a misdemeanor for which no special punishment is provided by law is liable to fine and imprisonment without hard labour (both or either), and to be put under recognizances to keep the peace and be of good behaviour at the discretion of the Court.

2 Whenever any person convicted of misdemeanor is sentenced to imprisonment without hard labour, the Court or judge before whom such person has been tried may order, if such Court or judge thinks fit, that such person shall be treated as a misdemeanant of the first division.

3 Any person convicted of any indictable misdemeanor punishable under any one of the Criminal Law Consolidation Acts, 1861, may, in addition to or in lieu of the punishment by such Act provided, be fined and required to enter into his own recognizances, and to find sureties (both or either) for keeping the peace and being of good behaviour, but no person may be imprisoned for more than one year for not finding such sureties.

ARTICLE 24.

CUMULATIVE PUNISHMENTS.

4 Wherever sentence is passed for felony on a person already imprisoned under sentence for another crime, the Court may award imprisonment for the subsequent offence

1 1 Russ. Cr. 92; R. v. Dunn, 1848, 12 Q. B. 1041.

2 28 & 29 Vict. c. 126, s. 67.

3 24 & 25 Vict. c. 96, s. 117; Ibid. c. 97, s. 73; Ibid. c. 98, s. 51; Ibid. c. 99, s. 38; Ibid. c. 100, s. 71. The provisions of these Acts will be found in Parts V. and VI. of the Digest.

4 7 & 8 Geo. 4, c. 28, s. 10. When felonies as a rule were capital, there could be no cumulative sentences in regard of them, whether they were charged in different indictments or in different counts of the same indictIf they were charged in separate indictments, the prisoner having been convicted and sentenced on one, might plead "autrefois attaint to any subsequent charge. There was no use in passing two sentences of death upon him (see Chitty's Criminal Law, 463). If two felonies were

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to commence at the expiration of the imprisonment to which such person was previously sentenced. When such a person is already under sentence either of imprisonment or penal servitude, the Court, if empowered to pass sentence of penal servitude, may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment or penal servitude to which such person was previously sentenced, although the aggregate term of imprisonment or penal servitude respectively may exceed the term for which either of those punishments could be otherwise awarded.

1 When an offender is convicted of more misdemeanors than one, he may be sentenced to a separate punishment for each offence, and the Court may, if it thinks fit, direct that the one punishment shall not begin until the other has been undergone.

charged in one indictment, the prosecutor was put to his election-as indeed he still is. When death ceased to be the punishment for felonies as such (7 & 8 Geo. 4, c. 28, s. 7) it was necessary to make provision for the punishment of persons already under sentence. Hence the provision in the text. Cumulative punishment in cases of misdemeanor depends on the common law principles.

1 Opinion of the judges in Wilkes's Case, 1770, 19 St. Tr. 1132-3, and see R. v. Castro, 1881; 6 App. Ca. 229, 5 Q. B. D. 490. In the case of Rhenwick Williams, 1790, 1 Leach, 529, cumulative sentences, amounting in all to six years' imprisonment, were passed upon three indictments for similar offences.

CHAPTER III

1 GENERAL EXCEPTIONS

ARTICLE 25.

DEFINITIONS SUBJECT TO EXCEPTIONS.

EVERY definition hereinafter contained of any crime is subject to the following general exceptions, except in the cases in which the contrary is expressed :

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CHILDREN BETWEEN SEVEN AND FOURTEEN.

3 No act done by any person over seven and under fourteen years of age is a crime, unless it be shewn affirmatively that such person had sufficient capacity to know that the act was wrong.

ARTICLE 28.

INSANITY.

4 No act is a crime if the person who does it is at the time when it is done prevented [5 either by defective mental power or] by any disease affecting his mind

(a.) from knowing the nature and quality of his act; or,

1 See 2 Hist. Cr. Law, chaps. xviii., xix., pp. 94-186. See Draft Code, Pt. III. ss. 19-70.

1 Hale, P. C. 27-8; 1 Russ. Cr. 109; Draft Code, s. 20.

3 R. v. Owen, 1830, 4 C. & P. 236; and see cases collected 1 Russ. Cr. 109-112; Draft Code, s. 20.

The whole subject is discussed at full length in 2 Hist. Cr. Law, chap. xix., pp. 124-186. Cf. Draft Code, s. 22.

5 The parts of the article bracketed are doubtful.

1

(b.) from knowing that the act is wrong; [or,

(c.) from controlling his own conduct, unless the absence of the power of control has been produced by his own default.]

But an act may be a crime although the mind of a person who does it is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act.

Illustrations.

(1.) A kills B under an insane delusion that he is breaking a jar. A's act is not a crime.

(2.) A kills B knowing that he is killing B, and knowing that it is wrong to kill B; but his mind is so imbecile that he is unable to form such an estimate of the nature and consequences of his act as a person of ordinary intelligence would form. A's act is not a crime if the words within the first set of brackets are law. If they are not it is.

(3.) A kills B knowing that he is killing B, and knowing that it is illegal to kill B; but under an insane delusion that the salvation of the human race will be obtained by his execution for the murder of B, and that God has commanded him (A) to produce that result by those means. A's act is a crime if the word "wrong" has the second of the two meanings ascribed to it in the note. It is not a crime if the word "wrong" has the first of those two meanings.

(4.) A suddenly stabs B under the influence of an impulse caused by disease, and of such a nature that nothing short of the mechanical restraint of A's hand would have prevented the stab. A's act is a crime if (c.) is not law. It is not a crime if (c.) is law.

(5.) A suddenly stabs B under the influence of an impulse caused by disease, and of such a nature that a strong motive, as, for instance, the fear of his own immediate death, would have

1 The word " wrong "is variously interpreted as meaning:-1. Morally wrong. 2. Illegal. The practical effect of these differences is shown in Illustrations (4), (5), and (6).

2 The parts of the article bracketed are doubtful.

3 In extreme strictness this ought to be, "If the word 'wrong' has the first of these two meanings the criminality of the act would depend upon the question whether the jury thought that God's command under the circumstances altered the moral character of the act."

prevented the act. law.

A's act is a crime whether (c.) is or is not

(6.) A permits his mind to dwell upon and desire B's death; under the influence of mental disease this desire becomes uncontrollable, and A kills B. A's act is a crime whether (c.) is or

is not law.

(7.) A, a patient in a lunatic asylum, who is under a delusion that his finger is made of glass, poisons one of his attendants out of revenge for his treatment, and it is proved that the delusion had no connection whatever with the act.

ARTICLE 29.

A's act is a crime.

PRESUMPTION OF SANITY.

1 Every person is presumed to be sane, and to be responsible for his acts. The burden of proving that he is irresponsible is upon the accused person; but the jury may have regard to his appearance and behaviour in court.

ARTICLE 30.

DRUNKENNESS.

2 Voluntary drunkenness is not regarded as a disease affecting the mind within the meaning of Article 28; but involuntary drunkenness, and diseases caused by voluntary drunkenness, fall, so far as they affect the mind, within that Article.

If the existence of a specific intention is essential to the commission of a crime, the fact that the offender was drunk when he did the act which, if coupled with that intention, would constitute such crime, should be taken into account by the jury in deciding whether he had that intention.

Illustrations.

(1.) 2 A, in a fit of voluntary drunkenness, shoots B dead, not knowing what he does. A's act is a crime.

1 R. v. Oxford, 1840, 9 C. & P. 525; R. v. Stokes, 1848, 3 C. & K. 185; Draft Code, s. 22.

21 Hale, P. C. 32–3.

passage.

Illustrations (1), (2), and (3) are founded on this

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