show that the prisoner acted rashly and heedlessly with no deliberate intent; for, although carelessness may amount to mens rea, it cannot be malicious. Malice cannot be implied from the mere circumstance that a man paid no heed to obvious. facts. It can be implied from the circumstance that he wilfully shut his eyes to obvious facts on purpose not to see them, for that shows that he knew that they existed. (5) Cases in which there is no Guilty Mind. We have assumed hitherto that the person accused of any crime was of full age, sane and sober, and under no compulsion, delusion or mistake of fact, when he committed the criminal act. The law also presumes this to be the case until the contrary is shown. The onus lies on the accused to show the contrary; if he can do so he may escape criminal responsibility, for his act will not make him guilty unless his mind. was guilty too. The alleged criminal, then, must have a mind capable of forming an intention, and capable also of understanding the nature of the act which he contemplates, otherwise he cannot have a guilty mind. He must know right from wrong. In other words, he must possess both will and judgment, and be free to exercise both. He is not criminally liable if he really cannot help doing what he does. Hence no man can commit a crime when he is asleep or has been thoroughly drugged; for in such a state he is incapable of forming an intention or of understanding the nature of any act which he may do. But if a man chooses to drink to excess and then commits a crime, his drunkenness will afford him no defence; for it was his own voluntary act which reduced him to that condition. If, however, he be charged with doing an act which is only criminal when done. with a special intent (e.g., murder, in which it is necessary to prove malice aforethought), and he was so drunk that his mind was incapable of forming that or any other intent, this will be a defence to such a charge.1 So actual delirium will be a defence, although it is the result of voluntary drinking.2 1 See R. v. Meade, [1909] 1 K. B. 895; R. v. Beard (1919), 14 Cr. App. Rep. 110, and (H. L) The Times, March 6th, 1920. 2 See R. v. Davis (1881), 14 Cox, 563. For the same reason no infant under seven years of age can commit a crime. The law also presumes that an infant above seven but under fourteen years is incapable of committing a crime, for he has not yet acquired sufficient discretion to know right from wrong. This presumption, however, may be rebutted (except in the case of rape and offences involving carnal knowledge) by evidence that the infant knew what he was doing, and understood the wrongful nature of his act.1 No lunatic will be punished if he does not know what he is doing, or does not know that what he is doing is wrong. If he knows both what he is doing and that he ought not to do it, he is liable, although his desire to do it may be prompted by some delusion; for his motive is, as a rule, immaterial so far as guilt or innocence is concerned. But he will not be liable where the delusion is of such a kind that, if the facts were as he supposed, his act would be justifiable. Again, as insanity may affect the will as well as the judgment, it is possible that a crime may be committed under the influence of some uncontrollable impulse: this, if proved, would be a defence. But it is very difficult to establish this defence to the satisfaction of the Court.2 Mere irresistible impulse to do wrong affords no exception, if the intellectual faculties. are in such a state that the offender knows he is doing wrong. Duress or compulsion is a defence to all save the gravest crimes. There are two forms of duress-physical and moral This distinction can best be explained by two instances. If A. seizes the hand of B., in which there is a knife, and by physical force compels B. to stab C., B. will not be guilty of murder, for he cannot help doing what he does; the stabbing, indeed, is A.'s act and not B.'s. Here the compulsion is physical. But if A. threatens to kill or injure B. unless he stabs C., and B. under such moral compulsion does stab C., he will be guilty of murder; for he could and ought to have refused to stab C., although at the risk of his 1 See post, Book VI., Chap. II., Infants. own life. No one is entitled to kill an innocent and unoffending person in order to save his own life. But in other less serious cases even moral compulsion may afford a defence, if the person accused can show that his act "was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others, whom he was bound to protect, inevitable and irreparable evil; that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided." The dread of future penalties cannot be expected to prevail against the certainty of present suffering. Compulsion is admitted as an excuse for some of the minor forms of treason. If a man who has joined with traitors and taken part in a rebellion can satisfy the jury that he did so only under compulsion, that the compulsion continued during the whole time that he was with the rebels, that he did no more than he was compelled to do, and that he desisted as soon as the compulsion was removed, he is entitled to be acquitted of the treason.3 "If a man be desperately assaulted and in peril of death, and cannot otherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact, for he ought rather to die himself than kill an innocent; but if he cannot otherwise save his own life, the law permits him in his own defence to kill the assailant, for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature and necessity hath made him his own. protector." 4 This passage was cited with approval by the Court in the judgment in a well-known case, in which some shipwrecked sailors, who were adrift in a boat and in peril of immediate death from starvation, killed a boy who was among their number and fed on his body. They were all held guilty of murder. In some cases the law assumes, with singular blindness to the actual facts of life, that a married woman is incapable of freely exercising her will and judgment in the presence of her husband. Hence, if she commit a crime in the presence of her husband, or even in his company, the law presumes that 1 R. v. Tyler (1838), 8 C. & P. 616. 2 Stephen, Dig. Criminal Law, 6th ed., 24; and see R. v. Tyler, suprà. 3 R. v. M'Growther (1746), 18 St. Tr. 394. 41 Hale, P. C. 51. R. v. Dudley and Stephens (1884), 14 Q. B. D. 273, 283. she acted under his coercion and excuses her from punishment, although there be no evidence of any actual intimidation on his part. Such immunity is not granted to a wife who commits one of the graver felonies, such as treason, murder or manslaughter, in the presence of or under the actual coercion of her husband. It is only admissible in the less serious felonies, such as burglary, larceny, robbery, forgery, felonious assault or sending threatening letters, and in most misdemeanours. And even in these cases special circumstances--as, for instance, that the husband was a cripple and bedridden-may be given in evidence to repel the presumption of coercion. Again, if it be proved that the wife took a leading part in the commission of the crime voluntarily and not by the constraint of her husband, then the mere fact that he was present will not excuse her from punishment. And so a married woman may be convicted for keeping a brothel or a gaming house either with or without her husband being joined as her co-defendant; for in the management of a house the wife takes a leading part. But where the wife commits a crime in the absence of her husband, no presumption of coercion arises, even though she did the act by his express command and under the influence of threats of violence on his part. She will be convicted as a principal and he as an accessory before the fact.' There can, then, be no criminal intent unless the accused has mental capacity, is a free agent, and knows right from wrong. But even in some cases where these three circumstances concur, he may still have no guilty mind and therefore be innocent of crime. Such a state of things exists. where the accused has done a criminal act under an honest and reasonable mistake of fact. The mistake must be of such a kind that, had the facts been as the prisoner honestly believed them to be, his act would have been no crime. But if he would still be liable to criminal proceedings if the facts were as he supposed them to be, his mistake of fact will afford him no defence. Where a son, believing that his father was cutting the throat of his mother, shot and killed him, it was held that if he had reasonable grounds 1 See post, Book VI., Chap. I., Married Women. for believing, and honestly believed, that his act was necessary for the defence of his mother, the homicide was justifiable, although the evidence at the trial showed that the father did not in fact intend to murder his wife.1 A. is alarmed in the night and sees a man in his house, whom he honestly but erroneously believes to be a burglar, and whom he therefore shoots." A. in this case commits no crime. But if A. supposed the man to be merely a drunken trespasser who had entered his house by mistake, and with that impression in his mind shot at him and killed him, he would be guilty of murder. So, where hurt or damage is the result of an accident which could not have been foreseen or avoided, no blame attaches to the author of the injury, for he had no guilty mind, e.g., in the case of homicide by misadventure. Lastly, as a general rule, both the guilty act and the guilty mind must be the act and mind of the accused himself, and not of any servant of his. There must be a personal duty on the accused, and he must personally break or neglect that duty, otherwise no indictment will lie against him. "The condition of mind of the servant is not to be imputed to the master. A master is not criminally responsible for a death caused by his servant's negligence, and still less for an offence depending on the servant's malice; nor can a master be held liable for the guilt of his servant in receiving goods, knowing them to have been stolen. And this principle of the common law applies also to statutory offences, with this difference, that it is in the power of the Legislature, if it so pleases, to enact, and in some cases it has enacted, that a man may be convicted and punished for an offence although the condition of his mind was not blameworthy; but, inasmuch as to do so is contrary to the general principle of the law, it lies on those who assert that the Legislature has so enacted to make it out convincingly by the language of the statute; for we ought not lightly to presume that the Legislature intended that A. should be punished for the fault of B." + 3 Where a servant or agent does an act which he knows or 1 R. v. Rose (1884), 15 Cox, 540. ? See R. v. Annie Dennis (1905), 69 J. P. 256. * See ante, pp. 118, 119. B.C.L. Per Cave, J., in Chisholm v. Doulton (1889), 22 Q. B. D. at p. 741. 9 |