It seems a statute creating a new felony does not extend to infants under the age of discretion, (n) and that statutes giving corporal punishment do not bind infants, but other and general statutes do, if infants are not excepted. (o) And where a fact is made felony, or treason, it extends as well to infants, if above fourteen, as to others. (p)

An infant, being unable to trade, cannot be prosecuted criminally for defrauding his creditors, as it cannot be contended that the contracts of an infant for goods supplied in the way of trade or for money lent are valid and result in debts, so as to give rise to the relation of debtor and creditor. (r)

Persons non compotes mentis.-Every person, at the age of discretion, is, unless the contrary be proved, presumed by law to be sane, and to be accountable for his actions. But if there be any incapacity, or defect of the understanding, as there can be no consent of the will, so the act cannot be culpable. (s) Where the deprivation of the understanding and memory is total, fixed and permanent, it excuses all acts, so, likewise, a man laboring under adventitious insanity is, during the frenzy, entitled to the same indulgence, in the same degree, with one whose disorder is fixed and permanent. (t) It seems clear, however, that to excuse a man from punishment on the ground of insanity, it must be proved distinctly that he was not capable of distinguishing right from wrong at the time he did the act, and did not know it to be an offence against the laws of God and nature. (u) If there be a partial degree of reason; a competent use of it sufficient to restrain those passions which produce the crime; if there be thought and design; a faculty to distinguish the nature of action; to discern the difference between moral good and evil,-then he will be responsible for his actions. (v)

(n) Russ. Cr. 10.

(0) Dwarris, 516.

(p) Russ. Cr. 10.

(r) Reg. v. Wilson, L. R. 5, Q. B. D. 28. .

(8) Arch. Cr. Pldg. 17.

(t) Ibid. 18; Beverley's Case Co. 125.

(u) Rex v. Offord, 5 C. & P. 168.

(v) Reg. v. McNaughton, 10 Cl. & Fin. 200; 1 C. & K. 130 n.; Rex v.

Higginson, 1 C. & K. 129.

Where the intellectual faculties are sound, mere moral insanity-where a person knows perfectly well what he is doing, and that he is doing wrong, but has no control over himself, and acts under an uncontrollable impulse,―does not render him irresponsible. (w) Whether the prisoner were sane or insane at the time the act was committed is a question of fact triable by the jury, and dependent upon the previous and contemporaneous acts of the party.

Upon a question of insanity, a witness of medical skill may be asked whether, assuming certain facts proved by other witnesses to be true, they, in his opinion, indicate insanity. (x) It is said that, as to the criminal liability of a lunatic, the maxim is, actus non facit reum nisi mens sit rea. (y)

Imbecility, and loss of mental power, whether arising from natural decay, or from paralysis, softening of the brain, or other natural cause, although unaccompanied by frenzy, or delusion of any kind, constitutes unsoundness of mind, amounting to lunacy, within 8 & 9 Vic., c. 100. (2)

It is the duty of the Government to assume the care and custody of persons acquitted of criminal charges on the ground of insanity, and this power is vested in the Government, independently of any statute. (a) The policy of the law in detaining insane persons in custody is to prevent them from committing the same offences again. (b)

The vice of drunkenness, which produces a perfect though temporary frenzy, or insanity, will not excuse the commission of any crime; and an offender under the influence of iutoxication can derive no privilege from a madness voluntarily contracted, but is answerable to the law equally as if he had been in the full possession of his faculties at the time. (c)

(w) Rex v. Burton, 3 F. & F. 772.

(x) Reg. v. Frances, 4 Cox, 57, per Alderson B. and Cresswell, J.; Reg. v. Wright, R. & R. 456; Reg. v. Searle, 1 M. & Rob. 75; Arch. Cr. Pldg. 19. (y) Taggard v. Innes, 12 U. C. C. P. 77, per Draper, C. J.

(z) Reg. v. Shaw, L. R. 1 C. C. R. 145, 37 L. J. (M. C.) 112.

(a) Reg. v. Martin, 1 James, 322.

(b) Ibid. 324, per Bliss, J.; see as to insane persons 32 & 33 Vic., c. 29, 8. 99 et seq.

(c) Arch. Cr. Pldg. 18.

It has been said that, upon an indictment for murder, the intoxication of the defendant may be taken into consideration as a circumstance to show that the act was not premeditated. (d) But if the primary cause of the frenzy be involuntary, or it has become habitual and confirmed, this species of insanity will excuse the offender equally as the other descriptions of this malady. (e)

A deaf mute, incapable of understanding the proceedings at his trial, cannot be convicted, but must be detained as non-sane. (ƒ)

Persons in subjection to the power of others.-In general, a person committing a crime will not be answerable if he was not a free agent and was subject to actual force at the time the act was done. (g) This exemption also exists in the public and private relations of society; public as between subject and prince, obedience to existing laws being a sufficient extenuation of civil guilt before a municipal tribunal; and private, proceeding from the matrimonial subjection of the wife to the husband, from which the law presumes a coercion which, in many cases, excuses the wife from the consequences of criminal misconduct. The private relations which exist between parent and child, and master and servant, will not, however, excuse or extenuate the commission of any crime of whatever denomination; for the command is void in law and can protect neither the commander nor the instrument. (h) In general, if a crime be committed by a feme covert in the presence of her husband, the law presumes that she acted under his immediate coercion, and excuses her from punishment. (i) But if she commit an offence in the absence of her husband, eveu by his order or procurement, her coverture will be no defence; (j) even though he appear at the

(d) Reg. v. Grindley, 1 Russ. 8; Rex. v. Thomas 7 C. & P. 817; Rex. v. Meakin, ibid. 297; but see Rex. v. Carroll, ibid. 145.

(e) Arch. Cr. Pldg. 18.

(f) Reg. v. Berry, L. R. 1 Q. B. D. 447.

(g) Russ. Cr. 32.

(h) Arch. Cr. Pldg. 22.

(i) Ibid 22; and see Reg. v. Smith, Dears. & B. C. C. 553.

(j) Ibid. 22; 2 Reach, C. C. 1102; Reg. v. Morris, R. & R. 270

very moment after the commission of the offence; and no subsequent act of his, though it may render him accessory to the felony of his wife, can be referred to what was done in his absence. (k) This presumption, however, may be rebutted by evidence; and if it appear that the wife was principally instrumental in the commission of the crime, acting voluntarily and not by restraint of her husband, although he was present and concurred, she will be guilty and liable to punishment. (1)

The protection does not extend to crimes which are mala in se, and prohibited by the law of nature, nor to such as are heinous in their character, or dangerous in their consequences; and, therefore, if a married woman be guilty of treason, murder, or offences of the like description, in company with, or by coercion of, her husband, she is punishable equally as if she were sole. (m) So a married woman may be indicted jointly with her husband for keeping a bawdy house, (n) or gaming house, (o) for these are offences connected with the government of the house in which the wife has a principal share. (p) According to the prevailing opinion, it seems the wife may be indicted with her husband in all misdemeanors. (q) If a married woman incite her husband to the commission of a felony, she is accessory before the fact. (r) But she cannot be treated as an accessory for receiving her husbaud, knowing that he has committed a felony, nor for concealing a felony jointly with her husband, (s) nor for receiving from her husband goods stolen by him. (1) And she will not

(k) Reg. v. Hughes, 1 Russ. 21.

(1) Reg. v. Cohen, 11 Cox, 99; Reg. v. Dicks, 1 Russ. 19; Reg. v. Hammond, Leach, 447; Arch. Cr. Pldg. 22.

(m) 1bid. 23; see Reg. v. Cruse, 8 C. & P. 541; 2 Mood. C. C. 53; Reg. v. Manning, 2 C. & K. 903 n.

(n) Reg. v. Williams, 10 Mod. 63, 1 Salk. 384.

(0) Reg. v. Dixon, 10 Mod. 335.

(p) Arch. Cr. Pldg. 23.

(q) Ibid. 23; Reg. v. Ingram, 1 Salk. 384; but see Reg. v. Price, 8 C. & P. 19.

(r) Reg. v. Manning, 2 C. & K. 903 n.

(8) Arch. Cr. Pldg. 23.

(t) Reg. v. Brooks, Dears. C. C. 184; see Reg. v. Archer, 1 Mood. C. C. 143.

be answerable for her husband's breach of duty, however fatal, though she may be privy to his misconduct, if no duty be cast upon her, and she is merely passive. (u)

Ignorance. The laws can only be administered upon the principle that they are known, because all persons are bound to know and obey them. (v) A mistake, or ignorance of law, is no defence for a party charged with a criminal act; (w) but it may be ground for an application to the merciful consideration of the Government. (x) But ignorance, or mistake of fact, may, in some cases, be a defence; (y) as, for instance, if a man intending to kill a thief in his own house, kill one of his own family, he will be guilty of no offence. (z) But this rule proceeds upon a supposition that the original intention was lawful; for if an unforeseen consequence ensue from an act which was in itself unlawful, and its original nature wrong and mischievous, the actor is criminally responsible for whatever consequences may ensue. (a)

Principals in the first and second degrees.-The general definition of a principal in the first degree is one who is the actor or actual perpetrator of the fact. (b) Principals in the second degree are those who are present aiding and abetting at the commission of the fact. (c) To prove a person an aider or abettor, it must be shown either that he was actually present aiding and in some way assisting in the cominission of the offence, or constructively present for the same purpose -that is, in such a convenient situation as readily to come to the assistance of the others, and with the intention of doing so, should occasion require. (d) But there must be

(u) Reg. v. Squires, 1 Russ. 16; Arch. Cr. Pldg. 23.

(v) Reg. v. Moodie, 20 U. C. Q. B. 399, per Robinson, C. J.; Reg. v. Mailloux, 3 Pugsley, 493.

(w) Reg. v. Moodie, supra; Unwin v. Clark, L. R. 1 Q. B. 417; Reg. v. Mayor of Tewkesbury, L. R. 3 Q. B. 635, per Blackburn, J.

(x) Reg. v. Madden, 10 L. C. J. 344, per Johnson, J.

(y) Unwin v. Clark, L. R. 1 Q. B. 417, per Blackburn, J.

(z) Reg. v. Levett, Cro. Car. 538.

(a) Arch. Cr. Pldg. 24.

(b) Ibid. 7.

(c) Ibid. 8.

(d) Ashley v. Dundas, 5 U. C. Q. B. O. S. 753, per Sherwood, J.; Reg. ▾ Curtley, 27 U. C. Q. B. 617, per Morrison, J.