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The penalty shall be increased by not more than one third if the act is committed in a place of meeting or assembly or by night in an inhabited quarter.

Article 481.-In the circumstances provided for by the preceding articles the person convicted may be subjected to measures of security.

Article 482.-Whoever, although licensed to carry arms, does any of the following acts shall be punished by a penalty of fine not exceeding twenty pounds: (1) delivers an arm to a juvenile of less than fourteen years of age, or to a person incapable or inexperienced in the use of arms or permits such persons to carry the same; (2) fails to take the necessary precautions to prevent any of the persons mentioned in the preceding number from easily reaching or gaining possession of any arms under his control; (3) carries a loaded gun in a place of meeting or assembly.

Article 483.–This article concerns fireworks, and is not related to this discussion.

Article 484.-For the purposes of the preceding provisions the expression “arms” shall mean: (1) firearms and any others prepared for the purpose of injuring others; (2) bombs and any kind of device or container for holding explosive materials, or explosive materials themselves, and asphyxiating gases or gases used in war or any injurious gases. Question 19. Capital punishment

The Egyptian Penal Code provides for capital punishment in Chapter 3 of Book I, Article 13, under classification of punishment as one of the substantive penalties.

In the absence of extenuating circumstances death is inflicted as a punishment for many offenses under the Egyptian Penal Code. Under other articles of the Code the court has an option between death and penal servitude for life in certain events. Capital punishment is inflicted by hanging according to Article 13. Execution is private and its formalities are provided for by the Code of Criminal Procedure, promulgated by Law No. 150 of 1950.

Capital punishment in Egypt is inflicted for grave offenses against the State and for murder. The punishment is considered preventive in form but reparatory in spirit. Question 20. Prosecution for multiple related offenses, etc.

This question has been already partially answered under Question No. 9, by Articles 32-38. However, a further discussion is provided here on multiple offenses.

Book I, Chapter 3, Section 3, Articles 32-38 are concerned with co-existent penalties. A person who has committed an offense for which he has not yet been tried should not be able to escape from the penalty for its commission merely by committing some other and more serious offense. If “A” commits several thefts successively for which he might, if detected, have been separately punished, he should, on detection, be liable to punishment for all of them cumulatively. If only one of these thefts was at first discovered, and for this one “A” was tried and punished, it would be ridiculous to treat his conviction as wiping out all liability for any other legs or equally serious offense committed prior thereto. If, therefore, he is prosecuted for all of the offenses simultaneously, his liability for punishment for each is not affected. This principle is enunciated in Article 33, to which I shall return shortly. Before dealing with it, however, reference must be made to the more complicated situation for which provision is made by Article 32.

Article 32.-When the same act falls within the definition of more than one offence the penalty prescribed for the offence involving the heaviest penalty shall alone be imposed.

Two or more offences committed with the same object and connected one with another in such a manner as to form a single transaction, are deemed to constitute a single offence involving the penalty prescribed for the most serious of the offences committed.

The commission of an offence frequently involves acts of preparation or acts of execution which, taken by themselves, also constitute a substantive offense. Thus every theft with violence involves violence which might constitute an offense punishable separately from the theft. Also, most thefts involve a criminal trespass. Obtaining property by false pretenses, if accompanied by means of a forged document, also involves an uttering of the forgery, and if the offender is himself the author of the forged document, he is also liable for forgery. Or, to cite another example, a forged writing may be, by reason of the forgery, defamatory, and its publication constitutes the offense of defamation in addition to the offense of forgery.

French writers distinguish between the cases in which one and the same act gives rise to liability to more than one punishment because it constitutes at once more than one offense (concours idéal), and the more common case in which the offender has committed several different acts, each of which is a separate offense (concours matériel). Thus, if a man strikes another with intention to kill, and incapacitates but does not kill, his victim, his act is punishable (a) under Article 240 by imprisonment and (b) under Articles 234 and 46, as an attempt to commit willful homicide, by penal servitude for a term or detention.

Article 32, paragraph 1, provides that in such cases of concours idéal the penalty prescribed for the offense involving the heaviest penalty should alone be imposed. This is in effect saying that the offense must be treated as a whole and is not to be subjected to a subtle analysis so as to bring different aspects of it under different qualifications. It must be regarded by the court in that aspect alone in which it constitutes the greatest danger to society. The same principle inspires the second paragraph of the article. The case suggested is a form of concours matériel. The best example is perhaps that of forgery and uttering, but it is punishable separately. If the forger has also uttered, he has committed two offenses, but as they are so connected with one another as to form a single transaction, he is to be punished only for the more serious. It is frequently by no means easy to say whether the series of offenses committed are so connected as to form a single transaction. The Egyptian legislator has left its solution to the determination of the court in each case as it arises.

This second paragraph, therefore, establishes an exception to the ordinary rule of cumulation of penalties. Separate offenses have indeed been committed, and the only reason that the penalties set for them should not be cumulated is that they are the manifestation of one single criminal intention. This, more than even practical simultaneity in time, should be taken into consideration in determining whether the different acts do constitute a single transaction. If it is clear that in the mind of the offender the acts had a common purpose, the provisions of Article 32, paragraph 2, are satisfied. It is not enough, and it need not even be relevant, that they were committed at the same time.

It may sometimes be difficult to decide which is the heaviest penalty. Between criminal and correctional penalties no question can arise. Between different correctional penalties the court must presumably inflict that which justifies the longest period of imprisonment. French writers accept the view that subsidiary penalties such as confiscation, closing of an establishment, and the like, are attached to the offense itself and may, therefore, be inflicted independently of the penalty. The French law follows the rule that penalties can never be cumulated. Imprisonment, according to French writers, absorbs fine, unless the fine is of the nature of damages.

The provisions of Article 32 could not be satisfactorily applied unless the court trying the accused had wide powers of altering the "qualification" of the offense of which he was accused. These powers in Egypt are given to the court by the provisions of Article 308 of the Criminal Procedure Code. Under this article the court is also empowered to modify or increase the gravity of the charge contained in the committal order, and, even in the judgment of conviction, to alter the description of the offense constituted by the facts alleged in the committal order, without any preliminary amendment of the charge. This is, however, subject to certain provisions in favor of the defense. Thus, if the facts are at first wrongly qualified and the court is of the opinion that they establish a graver offense than that of which the prisoner is accused, the "qualification” will be altered and the accused may then be convicted of the offense involving the heaviest penalty. But if a conviction has already been obtained on these facts for some less serious offense, the person so convicted cannot be again brought to trial on the same facts differently qualified. Nor if he has been once acquitted at the first trial, can he be tried again, for this would be to put him in jeopardy twice for the same act. The conviction or acquittal settles the matter once and for all. It is res judicata.

The rule laid down in Article 32 does not exist in all countries. However, it is an admitted principle of criminal procedure that a man once convicted or acquitted on an indictment cannot be tried a second time for an offense of

which he might have been convicted on the first indictment. He is then entitled to plead autrefois convict or autrefois acquit, as the case may be. Thus, if a

man has been acquitted on a charge of obtaining property by false pretenses, he cannot be afterwards prosecuted for theft on the same facts, since he might have been convicted on the indictment for false pretenses, even though it was shown that the offense committed was really theft. On the other hand, if a person has been acquitted of theft, he can be afterwards prosecuted on the same facts for obtaining property by false pretenses on an indictment for theft.

Article 33.–Subject to the exceptions contained in Article 35 and Article 36, penalties restrictive of liberty shall be cumulative.

Article 34.—When cumulative penalties are of different kinds they shall be undergone in the following order : (1) penal servitude; (2) detention ; (3) imprisonment with labor; (4) simple imprisonment.

Article 35.—The penalty of penal servitude shall, to the extent of its duration, be deemed to be a satisfaction of any other penalty restrictive of liberty imposed for an offence committed before sentence to such penal servitude was passed.

The principle here is that punishments are cumulative. However, it would be useless to prosecute for a misdemeanor discovered after, but committed before, a conviction for a crime for which a sentence of penal servitude has been passed. It is true that in cases in which a fine might be imposed for the misdemeanor the fine would not be absorbed by the previous sentence of penal servitude. The Egyptian rule of cumulation of penalties appears to be sounder in principle than other countries' rule of non-cumulation. The mitigation of its application provided by Article 35, coupled with the wide discretion possessed by Egyptian judges in fixing the period of imprisonment, makes it possible for them to treat the commission of another offense as no more than an aggravating circumstance justifying, perhaps, the infliction of a maximum penalty, but not necessitating the actual infliction of a more than normal punishment for the lesser offenses. The practical effect of Article 35 is also to make lesser penalties restrictive of liberty run concurrently with a single penalty of penal servitude.

Article 35 has, however, a restrictive scope. The sentence of penal servitude absorbs other penalties only. Thus a sentence of penal servitude is not a satisfaction of another sentence to the same penalty. The two sentences are cumulative. And the sentence of penal servitude only absorbs “to the extent of its duration." Five years' penal servitude only absorbs five of a ten year's sentence to detention. It is also interesting to observe that only penal servitude can absorb; detention does not absorb imprisonment. Moreover, it is only penalties for offenses committed before the sentence of penal servitude was pronounced which suffer absorption.

Article 36.—When two or more offences have been committed before any of them has been tried, the aggregate duration of penal servitude shall not by reason of this cumulation of penalties exceed twenty years, that of detention or of detention and imprisonment shall not exceed twenty years, and that of imprisonment shall not exceed six years.

Article 37.-Fines shall always be cumulative.

Article 38.--Sentences of police supervision shall be cumulative, but so that the aggregate period thereof shall not exceed five years.

ETHIOPIA

QUESTION 1

The Penal Code of the Empire of Ethiopia of 1957 was drafted by Professor Jean Graven, Former Dean of the Faculty of Law of the University of Geneva and now President of the Court of Cassation of Switzerland. The Code contains 792 articles and is divided into three parts: Part I, General Part; Part II, Special Part; and Part III, Code of Petty Offenses. The Code is divided into “Books,” of which there are eight, numbered consecutively. Each book is subdivided into "Titles,” which in turn are subdivided into "Chapters" which contain sections in which the individual articles are found. The articles are numbered consecutively throughout the Code.

The traditional European “tripartite division" of offenses, according to the assumption of their different natures, into felonies, misdemeanors and petto offenses, has been abandoned. All offenses are, first of all, simply ca! “offenses" so that the general principles applicable to all offenses may

stated in Part I, the General Part, of the Code. Book I "Offenses and the Offender,” includes the first 84 articles and covers general principles of criminal law and its scope, including subjects such as time limitations, jurisdiction, extradition, conflicts of laws, attempt, participation, criminal responsibility and irresponsibility, criminal intent, negligence and accident, justification, necessity, self defense, mistake, and other topics of general application, Because Ethiopia lacked a highly developed legal profession, and because of the ideal of ach ssibility of the law to every citizen, as much doctrine as possible was included in the Code. In drafting the Code, these motives of education and accessibility were kept in mind, together with the guiding principles of most codifications, namely clarity, completeness and compactness. Adding to the completeness of the Ethiopian Code is the inclusion of military offenses together with other crimes.

Book II, entitled “The Criminal Punishment and Its Application," covers all phases of sentencing and extends from Article 85 to Article 247. Books I and II comprise the General Part of the Code (Part I).

Part II, the Special Part of the Code, extends from Article 248 through Article 689. These articles define each crime and give the punishment for each. The Special Part contains Books III through VI as follows: Book III, “Offences Against the State or Against National or International Intereste" ; Book IV, “Offences Against the Public Interest of the Community"; Book V, “Offences Against Individuals and the Family"; and Book VI, “Offences Against Property."

Part III of the Code, the Code of Petty Offenses, is a code within a code and contains two Books. These are Book VII, the General Part, and Book VIII, the Special Part. The Books, as usual, are broken down into Titles and Chapters containing the individual articles, numbers 690 through 792.

Petty offenses differ from ordinary offenses in that their punishments are less than those prescribed for ordinary offenses. Petty offenses are punishable by fines of from one dollar to three hundred dollars or a jail sentence of one day to three months. Included within the category of petty offenses are violations of rules and regulations promulgated by a competent authority, as well as those offenses which are specifically included in the Special Part of the Code of Petty Offenses. The trials of petty offenders are held before a lesser court or magistrate than the trials of the ordinary offenders. It should be pointed out that having a code within a code is a unique approach to codification. A more traditional approach would be to have the general part of the Code of Petty Offenses integrated into the general part of the entire code.

One experienced student of comparative law has traced the influence of the Italian Penal Code upon the Ethiopian Penal Code and reached the following conclusion :

The new Ethiopian Penal Code is based upon well-tried principles and practices of leading Continental countries both as to crimes in general and in particular, and penology. It enacts new provisions as to international offenses. Upon the framework of the excellent Italian Penal Code it imposes AngloAmerican ideas of constitutional privileges and rights which formed the basis of the United Nations Declaration of Human Rights."

QUESTION 2 A code whose inspiration is found in the European tradition of codification is drafted with consecutive numbering of the articles throughout the entire code. This numbering scheme gives a unity to the general and the particular codal provisions. Leaving blank numbers is felt to create confusion and fragmentation, which are the opposites of the goals of clarity and conciseness which should guide the draftsmen of such a code. If gaps are left in the numbering system, some will never be used because they will not be in the needed locations. Others will be quickly used up, leaving future enactments to be numbered differently anyway.

Traditional European-style codes retain the original numbering system until the code is revised or superseded. New statutory provisions are added through the device of additions under existing articles so that an article may come to have several paragraphs. Numbering of new provisions can be

1 Franklin F. Russell, "The New Ethiopian Penal Code," The American Journal of Comparatire Law, Vol. 10 (Spring 1961), pp. 276–277.

achieved through the use of decimal points or letters of the alphabet. For example, "Article 120A-Flogging," was added as a secondary punishment between "Article 120—General principles applicable to secondary punishments" and "Article 121-Caution, reprimand, admonishment and apology.” This method helps to retain the unity of the code.

QUESTION 3

Chapter II of Title I, Book 1 of the Ethiopian Penal Code is entitled "Criminal Guilt.” “Criminal Guilt" corresponds with the proposed Code's term “Culpability." The Ethiopian Code lays down in three articles the mental elements necessary for criminal conduct. Article 57. Principle: Criminal Fault And Accident

(1) No one can be punished for an offence unless he has been found guilty thereof under the law.

A person is guilty if, being responsible for his acts, he commits an offence either intentionally or by negligence.

(2) No one can be convicted under criminal law for an act penalised by the law if it was performed or occurred without there being any guilt on his part, and was caused by force majeure, or occurred by accident.

Nothing in this Article shall be a bar to civil proceedings. Article 58. Criminal Intention

(1) A person intentionally commits an offence when he performs an unlawful and punishable act with full knowledge and intent.

Criminal intention exists also when the offender, being aware that his act may cause illegal and punishable consequences, commits the act regardless that such consequences may follow.

(2) An intentional offence is punishable save in cases of justification or excuse expressly provided by law (Arts. 64-78).

(3) No person shall be convicted for what he neither knew of or intended, nor for what goes beyond what he intended either directly or as a possibility, subject to the provisions governing negligence. Article 59. Criminal Negligence

(1) A person is guilty of a criminal negligence act where, by a criminal lack of foresight or imprudence, he acts without consideration or in disregard of the possible consequences of his act.

A person is guilty of criminal negligence when he fails to take such precautions as might reasonably be expected in the circumstances of the case and having regard to his age, experience, education, occupation and rank.

(2) Offences committed by negligence are liable to punishment only if the law so expressly provides by reason of their nature, gravity or the danger they constitute to society.

The Court shall assess sentence according to the deg of guilt and the dangerous character of the offender, and according to his realisation of the possible consequences of his act or his failure to appreciate such consequences as he ought to have done.

Article 57 states the general principle that a person is guilty of criminal conduct if, having legal capacity, he commits an offense either intentionally or negligently. The next two articles state the mental elements necessary to constitute criminal intent or criminal negligence. The two articles are respectively entitled "Criminal Intention” and “Criminal Negligence.” In Article 58(1), two types of criminal intent are recognized. First, a person intentionally commits an offense when he performs an unlawful and punishable act (various crimes are listed and defined in the Special Part of the Code) with full knowledge and volition. (“Volition" seems more appropriate here than "intent," since we are defining "intentionally.” The Code was drafted originally in French, and the word was “la volonté.") In the United States, this type of criminal intent is often termed “specific intent.” It corresponds to "intentionally" in $302 (1) (a) of the proposed Code.

The second sentence of Article 58(1) establishes the second type of criminal intention. This second and less than specific intent has been called "indirect intention” or dolus eventualis. It corresponds to the term “knowingly" in 8302 (1) (b) of the proposed Code. In cases of indirect intention, the offender's intent to do an unlawful act is fully developed, but not his knowledge that is

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