the intention of the legislature that the person doing the forbidden act should do it at his peril, or that his ignorance as to the existence of the independent fact, or his mistaken belief in good faith and on reasonable grounds that it did not exist, should excuse him.

Voluntary or negligent ignorance of any such fact is no excuse for any such offence.

In cases of the infliction of bodily harm or restraint for the purpose of arresting or retaking a person honestly and reasonably but erroneously supposed to be liable to be arrested or retaken, the person inflicting such harm or restraint is not justified by such belief unless the state of facts in the existence of which he erroneously believed would, if it had really existed, have made it his legal duty to act as he did, or would have been such as to make his conduct an act of defence of his person or habitation.

Illustrations.

1

(1.) A being deserted by her husband is informed, and in good faith and on reasonable grounds believes, that he is dead. She marries again within seven years after the desertion. not guilty of bigamy.

She is

(2.) 2 A, under an insane delusion, kills B. If the delusion is such that its truth would justify him in doing so, his act is not a crime. The delusion would also be evidence that A did not know he was doing wrong even if its truth would not justify the

act.

(3.) 3 A, making a thrust with a sword at a place where, upon reasonable grounds, he supposes a burglar to be, kills a person who is not a burglar. A is in the same situation as if he had

killed a burglar.

(4.) A abducts B, a girl under fifteen years of age, from her father's house, believing in good faith and on reasonable grounds that B is eighteen years of age. A commits the offence of abduction, although if B had been eighteen years of age she would not have been within the statute.

1 R. v. Tolson, 1889, 23 Q. B. D. 168.

2 MacNaghten's Case, 1843, 10 C. & F. 200.

3 Leret's Case, 1640, 1 Hale, 474.

4 R. v. Prince, 1875, 2 C. C. R. 154.

(5.) A, in the last illustration, abducts B, in ignorance of her age, and without making any inquiry about it. A commits the offence of abduction.

(6.) A received into her house, not being a registered lunatic asylum, several persons to be medically treated, being persons who were in fact lunatics though A honestly believed on reasonable grounds that they were not lunatics but sufferers under other disorders. Notwithstanding such belief A committed an offence against 8 & 9 Vict. c. 100, s. 44.

(7.) 3 A, a constable, honestly and on reasonable grounds, but wrongly, believing B to have committed murder and not being able otherwise to arrest him shoots at him and kills him. A is justified. If A had been a private person his act would have been manslaughter at least.

(8.) (SUBMITTED.) B, pretending by way of a practical joke to be a robber, presents an empty pistol at A and demands his money. A, believing that B really is a robber, kills B. A is justified.

(9.) (SUBMITTED.) A breaks into B's house in Dundalk, at 5.45 A.M., local mean time, supposing that it is past six, but forgetting that A's watch is set to London time. burglary.

1 R. v. Prince, Ibid.

A commits

See judgment of Brett, J., p. 169, and see p. 174. R. v. Tolson, sup. seems to be distinguishable from R. v. Prince only on the ground that abducting a girl is morally wrong and marrying a woman is not.

2 R. v. Bishop, 1880, 5 Q. B. D. 259.

32 Hale, P. C. S2, 85, see also Thompson v. Farrer, 1882, 9 Q. B. D. 372.

CHAPTER IV.

1 PARTIES TO THE COMMISSION OF CRIMES-PRINCIPAL

AND ACCESSORY.

ARTICLE 36.

PRINCIPALS IN FIRST DEGREE.

2 WHOEVER actually commits, or takes part in the actual commission of a crime, is a principal in the first degree, whether he is on the spot when the crime is committed or not; and if a crime is committed partly in one place and partly in another, every one who commits any part of it at any place is a principal in the first degree.

Illustrations.

3

(1.) A lays poison for B, which B takes in A's absence. Α is a principal in the first degree.

(2.) A steals goods from a ship, and lays them in a place at some distance, whence B, by previous concert, carries them away for sale. A and B are both principals in the first degree.

ARTICLE 37.

INNOCENT AGENT.

Whoever commits a crime by an innocent agent is a principal in the first degree.

12 Hist. Cr. Law, ch. xxii. pp. 221-241; Draft Code, ss. 71–74.

2 Foster, 347-50, gives the history of the distinction between principals in the first and second degree. See also Hale, ch. xxii. 1 P. C. 233; Ibid. ch. xxxiv. 435, and ch. Ibid. 612.

3 Foster, 349, says simply that A is "a principal" without mentioning the degree, but as no one has "aided " "abetted," it would seem that

or

he must be a principal in the first degree. 4 R. v. Kelly, 1847, 2 C. & K. 379.

1

Illustrations.

(1) A tells B, a child under seven, to bring him money belonging to C. B does so. A is a principal in the first degree. (2.) 2 A, knowing a note to be forged, asks B, who does not know it to be forged, to get it changed for him. B does So, and gives A the money. A is a principal in the first degree. (3.) 3 B, in the last illustration, knows that the note is forged. A is an accessory before the fact.

ARTICLE 38.

PRINCIPALS IN THE SECOND DEGREE.

4 Whoever aids or abets the actual commission of a crime, either at the place where it is committed, or elsewhere, is a principal in the second degree in that crime.

Mere presence on the occasion when a crime is committed does not make a person a principal in the second degree, even if he neither makes any effort to prevent the offence or to cause the offender to be apprehended, but such presence may be evidence for the consideration of the jury of an active participation in the offence.

When the existence of a particular intent forms part of the definition of an offence, a person charged with aiding or abetting the commission of the offence must be shewn to have known of the existence of the intent on the part of the person so aided.

Illustrations.

(1.) A, B, and C go out with a common design to rob. A commits the robbery; B stands by ready to help; C is stationed

1 Deduced from R. v. Manley, 1844, 1 Cox, C. C. 104. 2 R. v. Palmer, 1804, 1 Russ. Cr. 160, 1 New Rep. 96.

3 R. v. Soares, 1802, R. & R. 25.

4 See cases in 1 Russ. Cr. 156-157.

R. v. Kelly, 1820, R. & R. 421,

perhaps marks the limit between a principal in the second degree and an accessory. In that case B stole horses and brought them to A, who was waiting half a mile off; A and B then rode away on them. It was held that A was an accessory before the fact. The distinction is now of no

importance.

5 R. v. Coney and Others, 1882, 8 Q. B. D. 534. See especially the judgment of Cave, J., 536-43.

6 Foster, 350.

some way off to give the alarm if any one comes. A is a principal in the first degree, B and C are principals in the second degree.

(2.) 1 B is indicted for inflicting on C an injury dangerous to life with intent to murder. A is indicted for aiding and abetting B. A must be shewn to have known that it was B's intent to murder C, and it is not enough to shew that A helped B in what he did.

ARTICLE 39.

COMMON PURPOSE.

2 When several persons take part in the execution of a common criminal purpose, each is a principal in the second degree, in respect of every crime committed by any one of them in the execution of that purpose.

If any of the offenders commits a crime foreign to the common criminal purpose, the others are neither principals in the second degree, nor accessories unless they actually instigate or assist in its commission.

Illustrations.

(1.) 3 A constable and his assistants go to arrest A at a house in which are many persons. B, C, D, and others come from the house, drive the constable and his assistants off, and one of the assistants is killed, either by B, C, D, or one of their party. Each of their party is equally responsible for the blow, whether he actually struck it or not.

4

Two get into a

(2.) Three soldiers go to rob an orchard. fruit tree. The third stands at the door with a drawn sword, and stabs the owner, who tries to arrest him. The men in the tree are neither principals nor accessories, unless all three came with a common resolution to overcome all opposition.

5

(3.) Smugglers fight with revenue officers. In the fight a smuggler fires a gun which kills another smuggler. The gun

1 R. v. Cruse, 1838, 8 C. & P. 541.

2 See cases referred to in the Illustrations. See also Fost. 350-2; 1 Russ. Cr. 757-8, 162, 764, 765-6.

3 Sissinghurst House Case, 1672, 1st Resolution; 1 Hale, P. C. 462.

4 Foster, 353.

5 Plummer's Case, 1701, Foster 352. More fully reported in Kelynge 155 (edition of 1873). Holt, in his judgment fully explains the whole law.

T