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ought to have known to be criminal, it will be no defence for him to allege that he did it by the command of his master or principal. "For the warrant of no man, not even of the King himself, can excuse the doing of an illegal act." He may be excused, however, if the act was one not in itself criminal or obviously wrongful, but rendered criminal only by facts and circumstances unknown to the servant or agent.2

A master, as a general rule, is not criminally responsible for any act done by his servants without his knowledge or consent. But there are cases in which he owes it as a duty to the public to know what is taking place on his premises, and actively to prevent his servants from doing anything which will cause any public inconvenience.3

Thus, if a man's works adjoin a public highway, it is his duty to see that nothing escapes from his premises which will be a nuisance to the public using the highway. It will be no defence for the master to urge that he was not aware of the existence or even of the possibility of any such nuisance, or that he had expressly forbidden his servants to do the acts which created the nuisance. It was his duty to the public to prevent the nuisance, and this duty he has neglected to perform.+

Again, a licensed victualler owes it as a duty to the public to know what is taking place on the licensed premises and to manage and control those servants whom he temporarily leaves in charge of them. If, therefore, in his absence one of his servants supplies drink to a man who is already drunk, the master is as liable as if he had done it with his own hand. So a master is liable under the Merchandise Marks Act, 1887,6 if, contrary to his express commands, one of his servants sells goods to which a false trade description has been affixed, unless the master can show that he has acted in good faith and has done all that was reasonably possible for him to do to prevent the commission of offences by his servants.7

1 Per cur. in Sands v. Child and others (1693), 3 Lev. at P. 352.

2 R. v. James (1837), 8 C. & P. 131.

3 As to the liability of the proprietor of a newspaper for libels published by his staff, see s. 7 of Lord Campbell's Libel Act (6 & 7 Vict. c. 96).

R. v. Stephens (1866), L. R. 1 Q. B. 702.

5 Mullins v. Collins (1874), L. R. 9 Q. B. 292; Cundy v. Le Cocq (1884), 13 Q. B. D. 207; but see Emary v. Nolloth, [1903] 2 K. B. 264; ante, pp. 118, 119.

6 50 & 51 Vict. c. 28, s. 2.

7 Coppen v. Moore, [1898] 2 Q. B. 306; and see Monsell Bros. v. L. & N. W. Ry. Co., [1917] 2 K. B. 836, 843.

CHAPTER III.

DIFFERENT KINDS OF CRIMES AND CRIMINALS.

THE number of crimes known to our law has increased enormously during the last hundred years. These additions have been made from time to time as occasion required, and very little of the former law has been repealed. Our criminal law, too, deals with a great variety of different subjects. No department of public or private life is beyond its ken. Recourse is had to legislation whenever the exigencies of the moment, and the varying interests of the community, demand the creation of a new offence. What is now a crime. may formerly have been a mere tort, and possibly ere long may be a tort again. "It is a good rule in criminal jurisprudence not to multiply crimes, to make as few matters as possible the subject of the criminal law, and to trust as much as can be to the operation of the civil law for the prevention and remedy of wrongs." " But this is not the policy at present pursued by the State. The result is that our criminal law is devoid of any scientific arrangement. It is impossible to classify it in any orderly or systematic method.

1

To a layman's mind, no doubt, the most striking difference between crimes would be afforded by the different modes of trial. The graver crimes are tried by a jury, which determines all questions of fact subject to directions on points of law from a judge, chairman or recorder; they are tried on an indictment at either Assizes or Quarter Sessions. The less serious offences are dealt with by magistrates, or by justices. of the peace most of whom have had no legal training; they dispose of them summarily, i.e., then and there without a jury.

1 Per Bramwell, B., in R. v. Middleton (1873), L. R. 2 C. C. R. at p. 54.

We will, therefore, in the first instance divide crimes into two classes:

(i.) Indictable offences.

(ii.) Non-indictable offences.

Many indictable offences may now be either tried by a jury on an indictment or, at the option of the prisoner and with the consent of the magistrate, be disposed of summarily.

The details of these two methods of procedure will be found discussed in Book V. under the head of Adjective Law. It is sufficient to state here that an indictment is a written document which charges the

person named in it with the commission of a definite crime; it is prepared with the object of its being "presented" to the Court in which it is proposed to try that person for that crime. But no one can now be called upon to enter the dock and plead to an indictment, unless either he has been committed by justices of the peace to take his trial in that Court, or the consent or direction in writing of a judge of the High Court or of the AttorneyGeneral or Solicitor-General to the presentment of the indictment has been given. If either course has been taken, the prisoner is arraigned and, if he pleads "Not guilty," is tried by a jury. Only the jury can find an accused person guilty on the trial of an indictment. When the offence is triable summarily, no indictment is prepared and the accused is either convicted or discharged by the magistrates themselves.

1

Indictable offences are of three kinds :

(i.) Treasons.

(ii.) Felonies.

(iii.) Misdemeanours.

2

Treason is a specific offence defined by four statutes. It consists in levying war against the King, helping his enemies, compassing his death or imprisonment, &c. For treason the punishment is death. By the statute 11 Vict. c. 12, many treasons were declared to be also felonies; and for such "treason-felonies" the maximum penalty is penal servitude for life.

No logical definition is possible of either a felony or a misdemeanour. The word "felony " was originally used to describe those offences which were punishable at common law by the total forfeiture of the felon's lands, or goods, or both. But a great many other offences have been declared by statute to be felonies; and a conviction for felony no 1 Grand Juries (Suspension) Act, 1917 (7 Geo. V. c. 4), s. 1 (2).

2 25 Edw. III. c. 2; 1 Anne, st. 2, c. 21; 6 Anne, c. 41; 36 Geo. III. c. 7.

longer involves any forfeiture of the prisoner's property.1 Hence the distinction between a felony and a misdemeanour is now perfectly arbitrary, and should be abolished. In the present state of our law we can only define a misdemeanour by saying that every indictable offence which is neither treason nor felony is a misdemeanour. The word "misdemeanour" thus includes "a misprision." A misprision may be described as a negative misdemeanour, a mere passive omission of one's duty, as distinct from active misbehaviour; e.g., not assisting the King with advice or warlike service: not turning out when the sheriff calls on the posse comitatus for aid.2

PRINCIPALS AND ACCESSORIES.

Any one who takes part in the actual commission of a crime is a principal. If he actually commits the crime with his own hand, or employs an innocent agent to commit it, he is a principal in the first degree. If he aids and abets the commission of a crime by another, he is a principal in the second degree. A principal in the second degree is regarded as equally guilty, and is liable to the same punishment, as a principal in the first degree; for it is a general rule that whenever two or more persons act in concert with a common purpose which is criminal, each is liable for every act done by any of the others in furtherance of that common purpose.3

It makes no difference in the criminal quality of the act done whether the offender did it directly with his own hand, or indirectly by means of some innocent agent; in each case the prime mover is criminally responsible.

Thus, where a cook poisoned her master's dinner and sent it to him in the hay-fields by his little daughter, who was only six years of age, and the master ate it and died, the cook was held to be a principal in the first degree. If a husband at the request of his wife were to deliver a blackmailing letter written by her, being himself unconscious of its contents, his wife would be just as liable as if she had delivered it with her own hand. If a man employs a conscious or unconscious agent to commit an offence in this country, he may be amenable to the laws of England, although he was at the time living out of the jurisdiction of our Courts.

1 The Abolition of Forfeitures Act, 1870 (33 & 31 Vict. c. 23), s. 1.

2 As to misprision of treason, see post, p. 151; as to misprision of felony, see

post, p. 208. It is no crime to misprise a misdemeanour.

3 See R. v. Swindall and Osborne (1846), 2 C. & K. 230, post, p. 272; and R. v. Salmon and others (1880), 6 Q. B. D. 79, post, p. 296.

As a rule, a principal in the second degree is present at or near the place where the crime is being committed, aiding and abetting in its commission. Accessories are never present at the actual commission of the crime. Any one who incites, counsels, procures or commands another to commit a felony is an accessory before the fact to that felony, if it be committed, and is guilty of felony and punishable in all respects as the principal felon. If A. instigates B. to commit a crime, and B. commits a different and independent crime, A. is not liable. But if B. commits the crime suggested in a different way, or if the crime which B. in fact commits is a natural or probable consequence of his attempt to carry out A.'s orders or suggestion, then A. is an accessory before the fact to the crime actually committed. If, however, after instigating B. to commit a crime A. changes his mind and countermands his orders, he is not liable for any crime which B. commits. after the countermand has reached him.

A felony must be actually committed, or there cannot be any accessories. But to incite or solicit another to commit any crime is in itself a misdemeanour, whether that other consents or refuses to do what he is asked to do.1 And if two or more agree together to commit any crime, all are guilty of the misdemeanour of conspiracy, whether the crime be committed or not.

A. incites B. to kill C. by poisoning him. B. kills C. by shooting him. A. is an accessory before the fact to the murder of C.

A. incites B. to kill C. B. by mistake kills D. A. is not responsible for the death of D. unless he in some way conduced to the mistake.

A. incites B. to kill C., a person unknown to B. A. describes C. to B. and tells him where he will probably find C. at a certain hour. B. goes to that place at that hour and kills D., who answers to the description which A. gave of C. A. is an accessory before the fact to the death of D. A. incites B. to rob C., whom A. knows to be a strong and courageous B. attacks C., and a desperate struggle ensues, in which B. eventually kills C. A. is accessory before the fact to the murder of C., if the jury are satisfied that the struggle and the fatal blow were natural consequences, which A. should have anticipated, of the attempt to rob C.

man.

A. incited B. to kill his (B.'s) wife, and advised him to do so by means of a poisoned apple. B. gave his wife a poisoned apple; she gave it in

1 R. v. Higgins (1801), 2 East, 5; R. v. Philipps (1805), 6 East, 464.

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