but C. was kept away by his father, who had discovered their design. The two prisoners were seen about twelve o'clock that night to enter a gate about fifty feet from the house; they came towards the house to a picket fence in front, in which there was a small gate, but they did not come nearer the house than twelve or thirteen feet, nor did they pass the picket gate; they then went, as was supposed, to the rear of the house, and were not seen afterwards. About two o'clock some persons came to the front door and turned the knob, but went off on being alarmed and were not identified. The court held that there was no evidence of an attempt to commit the offence, no overt act directly approximating to its execution, and that a conviction there for could not be sustained. (k) If, however, it had been proved that they attempted to enter the house, and were either interrupted or surprised in doing so, and made their escape, and that but for such surprise or interruption they could have carried out their design of stealing certain money said to be in the house, there would have been evidence to go to the jury. () Its must appear upon the evidence that the felony might have been completed had there been no interruption. If, therefore, upon an indictment for attempting to commit a felony, by putting the hand into a woman's pocket with intent to steal her property therein, it appears that she had nothing in her pockets, a conviction cannot be sustained. (m)

The prisoner was indicted under 32 & 33 Vic., c. 21, s. 56, for breaking and entering a shop, with intent to commit felony. He was seen upon the roof, where a hole was found broken in, but there was no evidence of his having entered the building. The jury were directed that if they thought he broke the roof with intent to enter the shop and steal, they might find him guilty of an attempt. They accordingly convicted, and the court held that the conviction was right. (n)

(k) Reg. v. McCann, 28 U. C. Q. B. 514.

(4) Ibid. 516, per Morrison, J.; see also Reg. v, Eagleton, 1 U. C. L. J. 179; Dears. C. C. 515; Reg. v. Roberts, ibid. 539; Rex v. Martin, 2 Mood. C. C. 123; 9 C. & P. 213-215; Dugdale v. Reg. 1 E. & B. 435.

(m) Reg. v. Collins, L. & C. 471; 33 L. J. (M. C.) 177; 10 U. C. L. J. 308. (R) Reg. v. Bain, 8 U. C. L. J. 279; L. & C. 129; 31 L. J. (M. C.) 88.

But attempting to commit a felony is clearly distinguishable from intending to commit it, for the bare wish or desire of the mind to do an illegal act is not indictable. So long as an act rests in bare intention it is not punishable by our laws, (0) but immediately when an act is done the law judges not only of the act itself, but of the intent with which it was done, (p) and an act, though otherwise innocent, if accompanied by an unlawful and malicious intent, the intent being criminal, the act becomes criminal and punishable. (q)

It has been held under the corresponding English sectiou of the 31 Vic., c. 72, s. 2, that the offence of soliciting and inciting a man to commit a felony is, where no such felony is actually committed, a misdemeanor only, and not a felony under the Act, which only applies to cases where a felony is committed as the result of the counselling and procuring therein mentioned. (r)

The motives of a party, though unimportant in civil cases, may be taken into account in criminal proceedings. (s) In the latter, however, the maxim, actus non facit reum nisi mens sit rea, does not hold universally. When a particular act is positively prohibited by law, it becomes thereupon ipso facto illegal to do it wilfully, and in some cases even ignorantly, and a party may be indicted for doing it without any corrupt motive. (t) Where a statute, in order to render a party criminally liable, requires the act to be done feloniously, maliciously, fraudulently, corruptly, or with any other expressed motive or intention, such motive or intention is a necessary ingredient in the crime; but where the enactment simply prohibits the doing of an act, motive or intention is immaterial so far as regards the legal liability of the party

(0) Mulcahy v. Reg., L. R. 3 E. & I. App. 317, per Willes, J.

(p) Reg. v. McCann, 28 U. C. Q. B. 516, per Morrison, J.; Reg. v. McPherson, 1 Dears & B. C. C. 197, per Cockburn, C. J.; Rex v. Higgins, 2 Ea. 5, per Le Blanc, J.; Rex v. Scofield, Cald. 403.

(q) Reg. v. Bryans, 12 U. C. C. P. 172, per Hagarty, J.

(r) Reg. v. Gregory, L. R. 1 C. C. R. 77.

(8) Phillips v. Eyre, L. R. 6 Q. B. 21, per Willes, J.

(t) Rex v. Sainsbury, 4 T. R. 457, per Ashurst, J.

committing the forbidden act; (u) and it would seem that a party cannot exempt himself from criminal liability on the ground that his object was lawful or even laudable, in committing an act simply prohibited by law; (v) for the law infers that every person intends the natural consequences of his own act when that act is wrongful, injurious, and without legal justification. (w) The inference equally arises although the party has an honest or laudable object in view, and he will nevertheless be legally liable, unless the object is such as, under the circumstances, to render the act lawful. (x)

Misdemeanors differ from felonies in these particulars-the crime is of an inferior degree, and the penal consequences are not so severe; secondly, all persons concerned in the commission of a misdemeanor, if guilty at all, are principals, and the law recognizes no degrees in their guilt.

With regard to the punishment of misdemeanors, it is a general rule that all those offences less than felony which exist at common law, and have not been regulated by any particular statute, are within the discretion of the court to punish, (y) and the punishment usually inflicted is fine and imprisonment. (2) The punishment of felonies is generally prescribed by statute.

(u) 4 C. L. J. N. S. 194.

(v) Reg. v. Hicklin, L. R. 3 Q. B. 360; Reg. v. Recorder of Wolverhampton,; 18 L. T. Reps. N. S. 395.

(w) Reg. v. Hicklin, supra.

(x) Ibid. 375, per Blackburn, J.; and see Reg. v. Salter, 3 Allen, 327, Carter, C. J.

(y) Russ. Cr. 92.

(z) Ibid.

per

CHAPTER II.

THE PERSONS CAPABLE OF COMMITTING CRIMES, AND THEIR SEVERAL DEGREES OF GUILT.

As a prima facie criminal liability attaches on every person, it is necessary to consider what defences may, in different cases, be urged by different persons, as grounds of exemption from punishment. The law requires an exercise of understanding and of will to render a person criminally responsible, therefore a want or defect of either may be a good defence. (a)

Infants.-The general rule is, that infants under the age of discretion are not punishable by any criminal prosecution whatever, but the age of discretion varies according to the nature of the offence. (b) Thus, in some misdemeanors and offences that are not capital, an infant is privileged, by reason of his nonage if under twenty-one; for instance, if the offence charged by the indictment be a mere nonfeasance, unless it be such as he is bound to do by reason of his tenure, or the like as to repair a bridge, (c) then, in some cases he shall be privileged, if under twenty-one, because laches shall not be imputed to him. (d) But if he be indicted for any notorious breach of the peace, as riot, battery, or for perjury, cheating, or the like, he is equally liable as a person of full age, because upon his trial the court, ex officio, ought to consider whether he was doli capax, and had discretion to do the act with which he was charged. (e) The law as to an infant's liability is more clearly defined with reference to capital crimes, though their criminal responsibility does not so much depend upon

(a) Russ Cr. 6.

(b) Arch. Cr. Pldg. 16.

(c) Rex v. Sutton, 3 A. & E. 597.

(d) Arch. Cr. Pldg. 17.

(e) Ibid. 17.

their age as upon their judgment and intelligence. (ƒ) But within the age of seven years, no infant can be guilty of felony, or be punished for any capital offence, for within that age there is an irrebuttable presumption of law that he has no mischievous discretion. (g) On attaining the age of fourteen years, they are presumed to be doli capaces, and capable of discerning good from evil, and are, with respect to their criminal actions, subject to the same rule of construction as others of more mature age. (h)

Between the age of seven and fourteen years, an infant is deemed prima facie to be doli incapax, but malitia supplet ætatem, and this presumption may be rebutted by strong and pregnant evidence of mischievous discretion, establishing it beyond all doubt and contradiction. (2) When a child between the ages of seven and fourteen years is indicted for felony, two questions are to be left to the jury-first, whether he committed the offence; and secondly, whether at the time he had a guilty knowledge that he was doing wrong. (j)

An infant under fourteen is presumed by law to be unable to commit a rape, and therefore cannot be found guilty of it, and this on the ground of impotency as well as the want of discretion. This presumption, it seems, is not affected by the 32 & 33 Vic., c. 20, s. 65-making the offence complete on proof of penetration, without evidence of emission. (k) Nor is any evidence admissible to show that, in fact, the defendant had arrived at the full state of puberty, and could commit the offence. (1) But he may be principal in the second degree if he aid and assist in the commission of the offence, and it appear that he has a mischievous discretion. (m)

(i) Ibid.

(j) Rex v. Owen, 4 C. & P. 236.

(k) Rex v. Groombridge, 7 C & P. 582.

(1) Rex v. Philips, 8 C. & P. 736; Rex v. Jordan, 9 C. & P. 118; Rex v. Brimilow, ibid. 366; 2 Mood. C. C. 122.

(m) Rex v. Ellershaw, 3 C. & P. 396; see Rex v. Allen, 1 Den. C. C. 364; Arch. Cr. Pldg. 17.

E