CHAPTER I.

Persons capable of committing Indictable Offences, and the Degree in which they may be Guilty.

SECTION I.

What Persons are Punishable or Excusable for Crime.

Infants.] An infant, according to the legal acceptation of the term, is a person under twenty-one years of age. At and above the age of fourteen, an infant may be convicted of any offence, except those which consist of a non-feasance merely, such as the not apprehending persons committing felonies, or the like. 1 Hale, 21, 22, 25. 3 Bac. Abr. 581. 1. Under seven

years of age, he cannot be convicted of felony; 1 Hale, 27, 28; and under fourteen he cannot be convicted of a rape, 1 Hale, 630, or of carnally knowing a girl under the age of ten, or between the age of ten and twelve, although he have arrived at the age of puberty, and be capable of committing the offence: R. v. Jordan, 9 Car. & P. 366; but he may be convicted as for an indecent assault. Between the ages of seven and fourteen, however, although presumed by law not to be doli capax, yet that presumption may be rebutted by evidence of circumstances, showing clearly that the infant was, at the time of committing the offence, capable of discerning between good and evil; and in such a case, he is as amenable for offences (excepting rape and offences of that description, and also offences of omission as above mentioned) as if he were of full age. Thus, a girl of thirteen was executed for killing her mistress. 1 Hale, 26. A boy of ten, and another of nine, who had killed their companion, have been sentenced to death, and he of ten years actually hanged; because upon their trials it appeared that the one hid himself, and the other hid the body he had killed, which hiding manifested a consciousness of guilt, and a discretion to discern between good and evil. 1 Hale, 26, 27. 4 Bl. Com. 23. And there was an instance in the seventeenth century, where a boy of eight years old was tried at Abingdon, for firing two barns; and it appearing that he had malice, revenge, and cunning, he was found guilty, and hanged. Evelyn on 1 Hale, 25. Bl. Com. 24. And in 1748, a boy of ten years old, indicted for the murder of a girl of five, was found guilty and sentenced to be hanged: the girl was found buried in a dung heap, cut and mangled in a most barbarous and horrid manner; and as the boy and girl were companions and slept together, he was charged with the offence, but he denied it; afterwards,

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however, he confessed it, and, according to his confession, it appeared that he had carried the girl from the bed to the dung heap, and there killed her, cutting and mangling her in the manner above mentioned, then dug a pit for the body in the heap, and having placed the dung and straw which was bloody under the body, he covered it up with what was clean, and having done so, he got water and washed himself as clean as he could. As the judge who tried him did not wish to leave him actually for execution, before he had consulted the other judges on the subject, he reprieved him; and a report of the facts being afterwards laid before all the judges, they were unanimously of opinion that there were so many circumstances stated in the report, which were undoubted tokens of what Lord Hale (1 Hale, 630) called a "mischievous discretion," that the prisoner was certainly a proper object for capital punishment, and ought to suffer: "for it would be of very dangerous consequence to have it thought that children may commit such atrocious crimes with impunity; there are many crimes of the most heinous nature, such as the murder of young children, poisoning parents or masters, burning houses, or the like, which children are very capable of committing, and which they in some circumstances may be under strong temptations to commit; and therefore, although taking away the life of a boy of ten years old may savour of cruelty, yet, as the example of this boy's punishment may be a means of deterring other children from the like offences, and as the sparing this boy merely on account of his age will probably have a quite contrary tendency, in justice to the public the law ought to take its course." York's case, Fost. 70.

See as to the summary conviction of juvenile offenders, post, ch. 2, sec. 4.

Idiots and Lunatics.] Idiots are persons who have been permanently of nonsane memory from their birth; lunatics, persons who labour at times under temporary insanity, with lucid intervals; and there are others who, born sane, have become permanently insane from disease or other cause and where in any of these cases, the degree of insanity is such, that the party knows not whether he is doing right or wrong, he is not punishable for any offence he may commit whilst in that state. R. v. Higginson, 1 Car. & K. 129. M'Naughten's case, where the opinions of the judges were taken in the House of Lords, 1 Car. & K. 130 n. R. v. Arnold, per Tracy, J., 16 How. St. Tr. 764. Lord Ferrer's case, 19 How. St. Tr. 947, 948. R. v. Offord, 5 Car. & P. 168. R. v. Oxford, 9 Car. & P. 525. Even if a man of sound memory commit a capital offence, and before arraignment he becomes insane, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought; if after he is

tried and found guilty, he become insane before judgment, judgment shall not be pronounced; and if after judgment he become insane, judgment shall be stayed. 1 Hale, 34; 4 Bl. Com. 24.

By stat. 39 & 40 G. 3, c. 94, s. 1, where it shall be given in evidence, upon the trial of any person for treason, murder, or felony [or any misdemeanor, 3 & 4 Vict. c. 54, s. 3], that such person was insane at the time of the commission of such offence, and such person shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of committing such offence, and to declare whether they acquitted him on account of such insanity; and if they do so find, the court shall order such person to be kept in strict custody, in such place and in such manner as to them shall seem fit, until His Majesty's pleasure shall be known. But the grand jury have no right to ignore a bill, because it is proved to them that the party was insane at the time he committed the offence; they must find the bill as if the offender had been sane, and leave the court and petty jurors to deal with the case, in the manner here provided. R. v. Hodges, 8 Car. P. 195.

And by sect. 2, where a person indicted for any offence shall be insane, and upon indictment shall be found by a jury impanelled for that purpose to be insane, so that he cannot be tried,- —or where upon the trial he shall be found to be insane, the court may record such finding, and order the party to be kept in strict custody until His Majesty's pleasure shall be known. This section applies to all cases, as well misdemeanors as felonies. R. v. Little, R. & Ry. 430.

Also, if any person charged with any offence, shall be brought before any court to be discharged for want of prosecution, and such person shall appear to be insane, the court may order a jury to be impanelled to try the sanity of such person; and if the jury find him to be insane, the court may order him to be kept in strict eustody, in such place and in such manner as to them shall seem fit, until His Majesty's pleasure shall be known. 39 & 40 G. 3. c. 94, 8. 2.

Provision is made by stat. 3 & 4 Vict. c. 54, ss. 1, 2, for sending such lunatics to a lunatic asylum, and for their maintenance there, at the expense of the parish which is the last place of their legal settlement, if they have no property applicable to the purpose; or if they have no settlement, the expense of their maintenance shall be paid by the treasurer of the county, borough, &c., where they are imprisoned. See Arch. Paup. Lun. 94, §c.

It may be necessary to mention that drunkenness is no excuse for crime, but rather an aggravation of it, Co. Lit. 247, unless indeed it can be proved, to the satisfaction of the jury, that the defendant was at the time in such a state of mind, as

not to be aware of the consequences of his actions. Monkhouse, 14 Shaws' J. P. 115.

R. v.

Wife.] If the husband be present at the time his wife commits a felony (except murder and robbery), the law presumes that the wife acts under the coercion of her husband, excuses her, and punishes the husband only. 1 Hawk. c. 1, s. 2. But if she commit it in his absence, even although it be proved that he incited her to it, she is as amenable to punishment as if she were a feme sole. 1 Hale, 45. Staundf. 26. So, if a wife commit treason, murder, or robbery, even in the company of her husband, the law, on account of the odiousness and dangerous consequences of these crimes, will not excuse her. 1 Hawk. c. 1, 8. 9. 1 Hale, 47. So, if a wife commit an offence under felony, even in company with her husband, she is liable to punishment as if she were not married. 1 Hawk. c. 1, s. 13. Dalt. c. 139, p. 314; but see R. v. Price, 8 Car. & P. 19, semb. cont. Where the prisoners, husband and wife, were indicted, the wife with forging and uttering an order and certificate for prize money, and the husband as accessory before the fact, it was clear upon the evidence that the husband planned the matter, and urged and insisted on the wife presenting the forged order, &c., and applying for the prize money, but he was not present when she did so; and it was therefore objected that as it appeared plainly that the wife acted under the compulsion of her husband, she could not be found guilty; and if she as principal were acquitted, he as accessory must necessarily be acquitted also: both however being convicted, the judges held that with respect to the wife's guilt as principal, the presumption of coercion by the husband did not arise, as he was not present at the time, and they were therefore clearly of opinion that the wife was guilty of the uttering, and the husband guilty as accessory before the fact. R. v. Sarah and John Morris, R. & Ry. 270. Where husband and wife were indicted for receiving stolen goods, and both were convicted, the judges held that, as the charge against the husband and wife was joint, and it had not been left to the jury to say whether she had received the goods in the absence of her husband, the conviction of the wife could not be supported, even although it appeared that she had been more active in the matter than he. R. v. Eliz. Archer et al., Ry. & M. 143. See R. v. M'Clarens, 13 Show's J. P.343. R. v. Matthews et al., 14 Shaw's J. P. 399. So, where a woman was indicted for the murder of her husband's apprentice, by not furnishing him with proper nourishment, Lawrence, J., held, that as the wife was in that respect the servant of her husband, and as it was not her duty to provide the boy with proper nourishment, she could not be guilty of any breach of duty in neglecting to do so; if indeed the husband had given her food for the boy,

and she had wilfully withheld it, it would be otherwise. R. v. Squire and wife, 1 Russ. 16. A woman, however, may be convicted of perjury, even although her husband were present at the time of her taking the oath, &c. R. v. Dicks, MS. Bayley, J., cit. 1 Russ. 16. So, she and her husband, or she alone, may be indicted for keeping a disorderly house, 1 Hawk. c. 1, s. 12, or gaming house, R. v. Dixon and wife, 10 Mad. 335, or for forcible entry, Dalt. 126, riot, conspiracy, &c. But a wife cannot be charged with having conspired with her husband alone; for conspiracy must be between two persons at the least, and husband and wife are but one person in law. 1 Hawk. c. 72, s. 8. Nor is she deemed accessory after the fact, in receiving her husband, although she may know at the time of his having committed a felony; for she is under his power, and is obliged to receive him. 1 Hale, 47, and see R. v. Mary Good, 1 Car. § K. 185. So, if the husband and wife jointly receive a third person, knowing him to be guilty of felony, the husband alone is guilty, the wife not; but if the wife alone receive him, in the absence of her husband, she may be convicted. 1 Hale, 621.

That a wife, who has committed a felony, has done so under the eoercion of her husband, is however a presumption, which, like all other presumptions, may be rebutted by evidence to the contrary; and therefore if it appear clearly upon evidence, that the wife was not drawn into it by the husband, but that she was the principal actor in and inciter to it, she seems to be guilty as well as her husband. 1 Hale, 516. R. v. Boober, 14 Shaw's J. P. 355.

Also, a woman can never be said to be guilty of larceny of the goods of her husband, or of goods which are the property of her husband and others, unless she steal them from some third person, with intent to make such person chargeable for them; for as the husband and wife are one person in law, the wife's possession is deemed the possession of the husband. 1 Hale, 514. 1 Hawk. c. 33, s. 19. Where money, belonging to a friendly society, was deposited in a box, and placed in the custody of one of the members, and his wife broke open the box and stole the money, the judges held that an indictment against her as for larceny could not be sustained. R. v. Willis, Ry. & M. 375. If however, the box at the time were in the custody of any other person but the husband, she might be convicted, although the husband were a part owner of the money in it; because the taking would have the effect of charging the bailee. 1 Hale,513, and see R. v. Phœbe Bramley, R. Ry. 478. Where the wife of the prosecutor, and a man with whom she afterwards cohabited, jointly took money and goods belonging to the husband: the judges held that an indictment as for larceny would lie against the man, although not against the wife; and that notwithstanding the wife's consent,