(d) Failure to Repair Highway.-Other cases of necessity are clearer. Thus, a person cannot be held responsible for failure to repair or restore a highway, where all the materials with which the same might be repaired or restored have been swept away by the act of God, as by the sea, so that it is impossible for him to repair or restore it.203

(e) Joining Rebellion.-A person is not guilty in joining a rebellion, if it is necessary to save his life.204

(f) Crew Deposing Master.-The crew of a vessel are not guilty of a crime in arising and deposing the master, if it is a case of necessity.205

(g) Violation of Embargo Laws.-A vessel is not liable for a violation of the embargo laws where during a legitimate voyage she is obliged by stress of weather to take refuge in a proscribed port. 205a

(h) Stopping a Vehicle in Street.-The driver of a vehicle is not liable for stopping in the street in violation of a statute,

relief. It was held that the homicide was not justifiable, and that the defendants were guilty of murder.

In U. S. v. Holmes, 1 Wall, Jr. 1, Fed. Cas. No. 15,383, Mikell's Cas. 132, n. there is dictum by Judge Baldwin to the effect that, if two persons, who owe no duty to each other that is not mutual, should, by accident, not attributable to either, be placed in a situation where both cannot survive, neither would commit a crime in saving his own life in a struggle for the only means of safety; and also that, if several persons should be cast away in a boat without food, and the killing and eating of one should be necessary to save the others, a killing of one after the casting of lots would be justifiable. It was held, however, that, in applying the law, regard must be had not only to the jeopardy in which the parties are, but also to the relations in which they stand, and that the slayer must be under no obligation to make his own safety secondary to the safety of the person killed. And it was therefore held that a sailor on a vessel is not justified in killing a passenger in order to save himself.

203 Reg. v. Bamber, 5 Q. B. 279, Beale's Cas. 356.

204 See Respublica v. McCarty, 2 Dall. (Pa.) 86, Beale's Cas. 364; McGrowther's Case, Fost. C. L. 13, Beale's Cas. 273.

205 U. S. v. Ashton, 2 Sumn. 13, Fed. Cas. No. 14,470, Mikell's Cas.

205a The William Gray, 1 Paine, 16, Fed. Cas. No. 17,694.

where he is unavoidably delayed by the crowding of other vehicles.206

(i) Violation of Liquor Laws.-A physician or druggist who furnishes intoxicating liquors as a medicine, in good faith, and in a proper case, is not guilty under a statute punishing generally the sale of intoxicating liquors.207

But a prosecution for carrying liquor to church cannot be defended on the ground that it had been prescribed for defendant's wife. 207 a

(j) Violation of Food Law.-The sale of an adulterated article of food has been held criminal in Ohio, though made pursuant to a statute requiring manufacturers and dealers to furnish samples for analysis on demand and tender of price. 207b (k) Sunday Labor.-Labor on Sunday may be justifiable in a case of necessity, notwithstanding a statute prohibiting and punishing labor on that day.2

83. Compulsion or Command.

208

(a) In General.-"An act which, if done willingly, would make a person a principal in the second degree, or an aider and abettor, in a crime, may be innocent if the crime is committed by a number of offenders, and if the act is done only because, during the whole of the time it is being done, the person who does it is compelled to do it by threats on the part of the offenders instantly to kill him, or to do him grievous bodily harm, if he refuses; but threats of future injury, or the com

206 Com. v. Brooks, 99 Mass. 434, Beale's Cas. 364.

207 State v. Wray, 72 N. C. 253, Beale's Cas. 366, Mikell's Cas. 209; Nixon v. State, 76 Ind. 524.

207a Bice v. State, 109 Ga. 117, 34 S. E. 202.

207b State v. Rippeth (Ohio) 72 N. E. 298.

208 Com. v. Knox, 6 Mass. 76. The necessity, however, must be actual; where defendant harvested his wheat on Sunday, after working through the week for others, the facts that he was poor, had no cradle and waited until his neighbor had finished to borrow one, and that his wheat was overripe, are no defense. State v. Goff, 20 Ark. 289, Mikell's Cas. 132; post, § 451.

mand of any one not the husband of the offender, do not excuse any offense."209

Illustrations. According to this principle, a person who joins with others in a rebellion or in other treasonable acts is not criminally responsible therefor, if, during the whole time he is with them, he is compelled to remain and take part by threats of death or great bodily harm.210

The same is true where a person is so compelled to go with mob and to assist in the destruction of property, or to join in a riot.211 It is very doubtful, however, whether fear of personal danger will excuse a man who joins in committing a homicide.212

(b) Threats of Future Injury.-Compulsion does not amount to a defense where the threats are of future injury only. The threatened injury must be present and impending.213

(c) Threats of Injury to Property.—And the only threats which will be sufficient to make out a case of compulsion are threats of injury to the person, either death or grievous bodily harm. Fear of injury to property, as of having houses burned, crops destroyed, or goods taken, is not enough to excuse any offense.2

214

209 Steph. Dig. Cr. Law, art. 31. See People v. Repke, 103 Mich. 459, 61 N. W. 861, and Thomas v. State, 134 Ala. 126, 33 So. 130. To justify joining a mutiny the fear must be of death or great bodily harm and be well grounded. U. S. v. Haskell, 4 Wash. C. C. 402, Fed. Cas. No. 15,321. But see Reg. v. Tyler, 8 Car. & P. 616.

210 See McGrowther's Case, Fost. C. L. 13, Beale's Cas. 273; Respublica v. McCarty, 2 Dall. (Pa.) 86, Beale's Cas. 364; Rex v. Gordon, 1 East, P. C. 71.

211 Rex v. Crutchley, 5 Car. & P. 133, Beale's Cas. 367.

2124 Blackst. 30; Reg. v. Tyler, 8 Car. & P. 616; Arp v. State, 97 Ala. 5, 12 So. 301, 19 L. R. A. 357, 38 Am. St. Rep. 137, Mikell's Cas. 121; Leach v. State, 99 Tenn. 584, 42 S. W. 195; State v. Fisher, 23 Mont. 540, 59 Pac. 919; State v. Nargashian (R. I.) 58 Atl. 953.

213 Steph. Dig. Cr. Law, art. 31; People v. Repke, 103 Mich. 459, 61 N. W. 861. Threats to kill are no defense to a charge of perjury. Bain v. State, 67 Miss. 557, 7 So. 408, Mikell's Cas. 118.

(d) Continuance after Cessation of Danger.-If a person joins others in a crime as in rebellion, for instance-because of fear of death or grievous bodily harm, he must leave as spon as the cause of his fear and the fear cease. If he continues with them after this, he is guilty, and the compulsion at the outset is no defense.215

(e) Command of Husband.-As will be shown in another section, a wife is not guilty of a crime, except in the case of treason or murder, if the act is done under coercion by her husband, and, if an act is committed by her in the presence of her husband, there is a rebuttable presumption of coercion.216

(f) Command of Parent, Master, or Other Superior.—The case of husband and wife is the only case in which the command of one person will justify or excuse a crime committed by another. If a child who is old enough and of intelligence enough to be criminally responsible commits a crime, it is no defense that he did so by command of his parent.2

217

214 McGrowther's Case, Fost. C. L. 13, Beale's Cas. 273; Respublica v. McCarty, 2 Dall. (Pa.) 86, Beale's Cas. 364. Indeed, in these two cases, which were cases of rebellion, it was said that nothing less than fear of immediate death was enough to excuse. See, also, U. S. v. Vigol, 2 Dall. (Pa.) 346, Mikell's Cas. 117.

215 In a case of rebellion it was said: "The only force that doth excuse is a force upon the person, and present fear of death; and this force and fear must continue all the time the party remains with the rebels. It is incumbent on every man, who makes force his defense, to show an actual force, and that he quitted the service as soon as he could; agreeably to the rule laid down in Oldcastle's Case, that they joined pro timore mortis, et recesserunt quam cito potuerunt." McGrowther's Case, Fost. C. L. 13, 18 How. St. Tr. 391, Beale's Cas. 273. And see, to the same effect, Respublica v. McCarty, 2 Dall. (Pa.) 86, Beale's Cas. 364.

In Texas, a statute provides that, to render duress a defense to a criminal charge, the act must be done when the party threatening is "actually present." A person is actually present, within the meaning of this statute, if he is in such proximity to the place where the act is done as to have control over the person threatened. Paris v. State, 35 Tex. Cr. R. 82, 31 S. W. 855.

216 Post, § 85 et seq.

217 Steph. Dig. Crim. Law, art. 31; 1 Hawk. P. C. c. 1, § 14; People

The same is true of a crime committed by a servant or agent in obedience to the command of his master or principal;218 of a crime committed by a soldier, sailor, or civilian, by command of his superior officer.219

v. Richmond, 29 Cal. 414 (larceny); Carlisle v. State, 37 Tex. Cr. R. 108, 38 S. W. 991 (poisoning of her infant child by girl of sixteen, because of request, command, or persuasion of her mother).

The command of the parent, however, may be taken into consideration by the jury, in connection with the age of the child, in determining whether the child knew that he was committing a crime. Com. v. Mead, 10 Allen (Mass.) 398; State v. Learnard, 41 Vt. 585. See post, § 88, et seq.

A child of ten was acquitted of possession of tools for counterfeiting, while living with his parents who were convicted. Reg. v. Boober, 4 Cox, C. C. 272.

2181 Hawk. P. C. c. 1, § 14; Com. v. Hadley, 11 Metc. (Mass.) 66, Beale's Cas. 372; Sanders v. State, 31 Tex. Cr. R. 525, 21 S. W. 258. In Sanders v. State, supra, it was held that, where an employe of a railroad company knowingly obstructs a highway, he cannot escape responsibility by showing that he did so in obedience to the orders of his superior officer. And see Smith v. District of Columbia, 12 App. D. C. 33.

219 U. S. v. Jones, 3 Wash. C. C. 209, Fed. Cas. No. 15,494, Beale's Cas. 368. In this case a first lieutenant on a privateer schooner was indicted for feloniously and piratically entering another vessel and assaulting the captain, and the defense was that he was acting in obedience to the orders of his superior officer. It was said by Mr. Justice Washington, in charging the jury: "No military or civil officer can command an inferior to violate the laws of his country, nor will such a command excuse, much less justify, the act. Can it be for a moment pretended that the general of an army, or the commander of a ship of war, can order one of his men to commit murder or felony? Certainly not. In relation to the navy, let it be remarked that the fourteenth section of the law for the better government of that part of the public force, which enjoins on inferior officers or privates the duty of obedience to their superior, cautiously speaks of the lawful orders of that superior. Disobedience of an unlawful order must not, of course, be punishable; and a court martial would, in such a case, be bound to acquit the person tried upon a charge of disobedience. We do not mean to go further than to say that the participation of the inferior officer in an act which he knows, or ought to know, to be illegal, will not be excused by the order of his superior."

See, also, Rex v. Thomas, 1 Russ. Crimes (9th Ed.) 823, 4 Maule & S.

C. & M. Crimes-9.