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she will be entitled to an acquittal. In all other cases, except where the husband was present, his command or coercion must be proved.

§ 8. In regard to persons under duress per minas, the rule of law is clear, that "no man, from a fear of consequences to himself, has a right to make himself a party to committing mischief on mankind."2 But though a man may not, for any peril of his own life, justifiably kill an innocent person, yet where he cannot otherwise escape, he may lawfully kill the assailant. And though the fear of destruction of houses or goods is no excuse in law for a criminal act, yet force upon the person and present fear of death may in some cases excuse an act otherwise criminal, while such force and fear continue; as, for example, if one is compelled to join and remain with a party of rebels.4

§ 9. It may be added, that where an idiot, or lunatic, or infant of tender age, and too young to be conscious of guilt, is made the instrument of mischief by a person of discretion, the latter alone is guilty, and may be indicted and punished as the principal and sole offender. And so is the law, if one by physical force and violence impel another involuntarily against a third person, thereby doing to the person of the latter any bodily harm, And generally, where one knowingly does a criminal act by means of an innocent agent, the employer, and not the innocent agent, is the person accountable for the act.6

1 Rex v. Archer, supra.

2 Regina v. Tyler, 8 C. & P. 616, per Ld. Denman.

3 4 Bl. Comm. 30; 1 Hal. P. C. 51.

4 Foster, p. 14. The rule or condition, laid down in Sir John Oldcastle's case, is, that they joined pro timore mortis, et quod recesserunt quàm cito potuerunt. 1 Hal. P. C. 50.

5 Plowd. 19; 1 Hal. P. C. 434; 1 Russ. on Crim. 17, 18.

6 Regina v. Bleasdale, 2 C. & K. 768, per Erle, J.; Regina v. Williams, Idem. 51.

§ 10. It is a cardinal doctrine of criminal jurisprudence, declared in the Constitution of the United States, that the accused has a right "to be informed of the nature and cause of the accusation" against him; or, as it is expressed in other constitutions, to have the offence "fully and plainly, substantially and formally described to him." This is the dictate of natural justice, as well as a doctrine of the common law. The description, whether in an indictment, or information, or other proceeding, ought to contain all that is material to constitute the crime, set forth with precision, and in the customary forms of law. And if more is alleged than is necessary, yet if it be descriptive of the offence, it must be proved. Thus, though in an indictment for arson it is sufficient if it appear that the house was another's and not the prisoner's, yet if the ownership be alleged with greater particularity, the allegation must be precisely proved, for it is descriptive of the offence. This rule is deduced from a consideration of the purposes of an indictment; which are, first, to inform the accused of the leading grounds of the charge, and thereby enable him to make his defence; secondly, to enable the Court to pronounce the proper judgment affixed by law to the combination of facts alleged; and thirdly, to enable the party to plead the judgment in bar of a second prosecution for the same offence.1

§ 11. It is also a general rule of criminal law in the United States, that the party accused is entitled, as of common right, to be confronted with the witnesses against him. This right is declared in the Constitution of the United States; and is also recognized in the constitutions or statutes of nearly all the States in the Union; but in England it has not always been conceded.2 Sir Walter Raleigh, on his trial earnestly demanded "that he might see his accuser face to face;" pro

1 Commonwealth v. Wade, 17 Pick. 395, 399. And see Ante, Vol. 1, § 65; The People v. Stater, 5 Hill, N. Y. Rep. 401.

2 2 Hawk. P. C. b. 2, ch. 46, § 9.

testing against the admission of a statement in the form of the substance of an examination, taken in his absence; but this was denied him, and the examination was admitted. Informations of witnesses, against a person charged with felony, taken by a Justice of the Peace, or a Coroner, under the statutes of Philip and Mary and subsequent statutes on the same subject, are admitted as secondary evidence on the trial of the indictment, by force of those statutes. And though at this day it is deemed requisite, upon the language of the statute, that informations before a Justice of the Peace should be taken in the presence of the prisoner,1 yet formerly it was held otherwise; 2 and informations returned by the Coroner are still by some Judges held admissible, though taken in the prisoner's absence.3 Statutes of similar import have been enacted in several of the United States; but it is conceived that, under the constitutional provisions above mentioned, no deposition would be deemed admissible by force of those statutes, unless it were taken wholly in the prisoner's presence, in order to afford him the opportunity to cross-examine the witnesses; nor then, except as secondary evidence, the deponent being dead or out of the jurisdiction; or to impeach his testimony given orally, at the trial.5 Depositions are in

1 Rex v. Paine, 5 Mod. 163; 2 Hawk. P. C. b. 2, ch. 46, § 10; Rex v. Eriswell, 3 T. R. 722, 723; Rex v. Errington, 2 Lew. 142; Rex v. Woodcock, 1 East, P. C. 356; Rex v. Smith, 2 Stark. R. 208. This last case was fully reviewed, and somewhat questioned, in Regina v. Walsh, 5 Cox, C. C.

115.

2 Trials per Pais, 462. And see 2 Hale, P. C. 284.

3 Rex v. Thatcher, T. Jones, 53. The reason given is, that they are quasi inquests of office, and part of the proceedings in the case. Ibid. J. Kely. 55; 3 T. R. 722; Sills v. Brown, 9 C. & P. 601; Bull. N. P. 242; Rex v. Grady, 7 C. & P. 650; Rex v. Coveney, Id. 667; 2 Phil. Ev. 69, 70, (9th ed.) The unsoundness of this distinction is convincingly shown by Mr. Starkie. See 2 Stark. Ev. 277-279, (6th Am. Edit.) And see 2 Russ. on Crim. 892.

.

4 See Ante, Vol. 1, § 224.

5 See Bostick v. The State, 3 Humph. 344; The State v. Bowen, 4 McCord, 254; The State v. Valentine, 7 Ired. 225; N. York Rev. St. Vol. 2, p. 794, § 14.

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no case admissible in criminal proceedings, unless by force of express statutes, or, perhaps, by consent of the prisoner in open Court.1

§ 12. The answer to a criminal prosecution, in the Courts of Common Law, where the trial is upon the merits of the case, is, that the party is not guilty of the offence charged; no other form of issue being required. This plea involves a denial of every material fact alleged against him, and of course, according to the principles already stated, the prosecutor is bound affirmatively to prove the whole indictment; or, as it has been quaintly expressed, to prove Quis, quando, ubi, quod, cujus, quomodo, quare. The allegations of time and place, however, are not material to be proved, as laid, except in those cases where they are essential either to the jurisdiction of the Court, or to the specific character of the offence. Thus, for example, where the night time is material to the crime, as in burglary, or, in some States, one species of arson, it must be strictly proved. So, in prosecutions for violation of the Lord's day, and several other cases. So, where the place is stated as matter of local description, it must be proved as laid; as in indictments for forcible entry, or for stealing in a dwelling-house, and the like; or, where a penalty is given to the poor of the town or place where the of fence was committed; or, where a town is indicted for neglecting to repair a highway within its bounds. But in all cases it is material to prove, that the offence was committed within the county where it is laid and where the trial is had, the jurisdiction of the Court and jury being limited, in criminal cases, to that county.3

§ 13. Another cardinal doctrine of criminal law, founded in

1 Dominges v. The State, 7 Sm. & M. 475; McLane v. Georgia, 4 Geo. Rep. 335. In several of the United States, depositions may, in certain contingencies, be taken and used in criminal as in civil cases. See Ante, Vol. 1, § 321.

2 See Ante, Vol. 1, § 74 -81.
3 2 Russ. on Crimes, 800, 801.

natural justice, is, that it is the intention with which an act was done, that constitutes its criminality. The intent and the act must both concur, to constitute the crime.1 Actus non facit reum, nisi mens sit rea. And the intent must therefore be proved, as well as the other material facts in the indictment. The proof may be either by evidence, direct or indirect, tending to establish the fact; or by inference of law from other facts proved. For though it is a maxim of law, as well as the dictate of charity, that every person is to be presumed innocent until he is proved to be guilty; yet it is a rule equally sound, that every sane person must be supposed to intend that which is the ordinary and natural consequence of his own purposed act. Therefore, "where an act, in itself indifferent, becomes criminal if done with a particular intent, there the intent must be proved and found; but where the act is in itself unlawful, the proof of justification or excuse lies on the defendant; and in failure thereof, the law implies a criminal intent." 3

§ 14. This rule, that every person is presumed to contemplate the ordinary and natural consequences of his own acts, is applied even in capital cases. Because men generally act

17 T. R. 514, per Ld. Kenyon. Cogitationis pœnam nemo patitur. Dig. lib. 48, tit. 19, 1. 18.

23 Inst. 107.

3 Per Ld. Mansfield, in Rex v. Woodfall, 5 Burr. 2667.

4 In York's case, 9 Met. 103, this rule was stated and illustrated by Shaw, C. J., in the following terms: - "A sane man, a voluntary agent, acting upon motives, must be presumed to contemplate and intend the necessary, natural, and probable consequences of his own acts. If, therefore, one voluntarily or wilfully does an act which has a direct tendency to destroy another's life, the natural and necessary conclusion from the act is, that he intended so to destroy such person's life. So, if the direct tendency of the wilful act is to do another some great bodily harm, and death in fact follows, as a natural and probable consequence of the act, it is presumed that he intended such consequence, and he must stand legally responsible for it. So, where a dangerous and deadly weapon is used, with violence, upon the person of another, as this has a direct tendency to destroy life, or do some great bodily harm to the person assailed, the intention to take life, or to do him some great bodily

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