CONDUCT AT THE TIME OF OFFENCE. Witnessing crime and not interfering. though inflicted by the hand of one only (1). It has been laid down-"In a charge of murder it is "not necessary to prove previous concert. If "they joined in reckless assault upon the party— "reckless whether he live or die, and the party be killed, all joining are guilty, though it is proved "that one particular blow caused the death, and though it cannot be proved by whom the particular "blow was struck. If united in a murderous and "brutal assault, all are responsible" (2). The situation in which the strongest case would be required to justify a conviction as art and part, is that of a person being present at the perpetration of an offence, and not interfering to prevent it (3). This Might amount to alone, without any proof of previous concert or of art and part. Strongest case official witnessing concurrence displayed at the time, might or might not justify a conviction according to circumstances. Suppose that a person stands by and witnesses without remonstrance or sign of dissent, the protracted efforts of one individual to ravish a woman, or to drown, or throw another over a precipice, could any distinction be drawn between such a case and one of direct participation (4)? Perhaps the strongest example that can be imagined of this sort, is that of an official standing by and not doing his duty, and so allowing a breach of the law. One such case has occurred, where a magistrate required as such to assist an officer who was being deforced, declined to do so (5). Except in the case of Treason, where the rules are "committing the act while the 1 Hume i. 271, observations on 2 Thos. Wilson and others, Jed burgh, October 4th, 1849; Lord Wood's MSS.-See also Hume i. 268, and case of Brown and Wilson in note 1. 3 Hume i. 265. Burnet 270, case of Smith and Taylor there. 4 George Kerr and others, Glasgow, Dec. 26th 1871;2 Couper 334. 5 Hume i. 397, case of Mitchell there.-Alison i. 506. ACCESSION AFTER THE FACT NOT A special (1), accession after the fact is not recognised, CRIME. Every person, whether a British subject or a foreigner, WHO CAN COMMIT is answerable for the offences which he commits against the laws of Scotland, and within the jurisdiction of the Scottish Courts. There are only three exceptions :I. Non-age. II. Alienation of Reason. III. Compulsion. A child under seven years is not liable to punish- NONAGE. ment as a criminal (3). But children above that age may be prosecuted and punished (4). Sentence of death is competent after the age of puberty-14 in males, 12 in females (5). REASON. Insanity or Idiocy (6) exempts from prosecution (7). ALIENATION OF But there must be an alienation of reason, such as misleads the judgment, so that the person does not Alienation must know "the nature or the quality of the act" he is doing, or, "if he does know it, that he does not know he is doing what is wrong" (8). If there be this 1 Hume i. 533. 2 Hume i. 281, 282, and cases of Coutts (from Maclaurin, No. 97), and Bryce there. 3 Hume i. 35.-Alison i. 666. 4 Hume i. 32, cases of Gun and Chisholm: Quin and Macdonald : and Campbell in note *.-Hume i. 35, cases of Menzies: and Turnbull and Hay in note 4.-Alison i. 665, case of Macleish and Stuart there. 5 Hume i. 31, and cases of Forbes: Middleton: Jamieson: and Forrester there.-i. 32, cases of Urquhart: Macdonald and M'Intosh: Main and Atchieson: Moore and others: M'Laren and others: and M'Kay in notes 3 and *.-i. 33, case of Pirie there.-Hume (i. 34), indicates that there is no inflexible rule of law to exempt children 6 The charge of the late Lord 8 Hume i. 38, case of Thompson -- be total. ALIENATION OF alienation, as connected with the act committed, he REASON. is not liable to punishment, though his conduct may be otherwise rational (1). For example, if he kill another, when under an insane delusion, as to the conduct and character of the person-e.g., believing that he is about to murder him, or is an evil spirit, then it matters not that he has a general notion of For in such a case, right and wrong. as well might he be utterly ignorant of the quality of murder" (2). He does the deed knowing murder to be wrong, but his delusion makes him believe he is acting in selfEffect of Insanity defence, or against a spirit. Nor does it alter the same though the effect of the fact of insanity at the time, that the at the time the party recover. Oddness or eccentricity not enough. Monomania unconnected with crime no defence. person afterwards recovers (3). Instances have even occurred of one short sudden access of maniacal phrenzy, in which an act is committed, and where there is no recurrence of the mania (4). Such a case of insanity is obviously the most difficult to prove, but if proved, it bars punishment. But the alienation of reason must be substantial. Oddness or eccentricity, however marked, or even weakness of mind, will not avail as a defence (5). Even monomania may be insufficient as a defence, where the delusion and the crime committed have no connection (6), or where the person, though having delusions, was yet aware that what he did was illegal. Disturbance to the mind is not enough, if the reason be not overthrown (7). 1 Hume i. 37, 38.-Alison i. 645, 646. 2 Hume i. 38.-See Lord Justice Clerk Hope's charge in the case of Jas. Gibson, H. C., Dec. 23d 1844; 2 Broun 332. 3 Hume i. 39, and case of Kin- 4 Hume i. 41, 42, and case of 5 Hume i. 38. and cases of Gray: and Bonthorn there, and case of Campbell in note 3.-Alison i. 654, 655.-Geo. Bryce, H.C., May 30th and 31st 1864; 4 Irv. 506. (Lord Justice General M'Neill's charge.) 6 Eugene E. A. Whelps, H.C., July 25th 1842; 1 Brown 378 and Bell's Notes 5. 7 Jas. Gibson, H.C., Dec. 23d 1844; 2 Broun 332. (Lord Justice Clerk Hope's charge.)-Alexander Dingwall, Aberdeen, Sept. 19th and ALIENATION OF REASON. of no conse If alienation of reason exist, it is of no consequence whether it result from chronic disease or a temporary Cause of insanity cause. It matters not though the cause have been quence. the accused's own acts of excess (1). But mere in- Intoxication no toxication is no defence (2). excuse. compelling in pirate ship. The defence of compulsion scarcely ever applies COMPULSION. except where a large body of persons force individuals to act with them by absolute compulsion, or by threats of death or serious injury. Such cases may occur in Large body great public commotions, where a person is forced to individuals. aid rebels, or to go along with a treasonable or riotous mob (3). Again, an innocent person may, from inabi- Innocent person lity to escape, be a witness of, or even to some extent an actor in, piratical offences (4). But it is possible to conceive a case in which the defence of compulsion would be valid, though the constraint was the act of one individual. If a father concuss a young child to Child compelled commit a crime, by threats of death or violence, it cannot be doubted that the child would be irresponsible (5). And the same might hold in the case of a Wife by husband. wife compelled by her husband (6). 20th 1867; 5 Irv. 466 and 4 S. L. R. 249. (Lord Deas' charge.) See also John Caldwell, Glasgow, May 3d 1866; 5 Irv. 241 and 2 S. L. R. 1. 1 Alex. Milne, H.C., Feb. 9th to 11th 1863; 4 Irv. 301 and 35 S. J. 470 (Lord Justice Clerk Inglis' charge). The extraordinary rule laid down by Sir Archibald Alison, (i. 654), that where there is a temporary alienation of reason in consequence of the accused's excesses, he is to be held guilty of what he does when so bereft of reason, if "this infirmity was known to him," but that if insanity supervenes on excessive drinking, "without the panel's having been aware that such an indulgence in his case leads to such a consequence," and he does some criminal act, he is to be more leniently dealt with, seems to be wholly inconsistent with principle. 2 Hume i. 45, 46, and cases of Hume: M'Lauchlan: and Hamilton and Green there, and case of Bowers in note a. Baron Hume seems to think that in the case of offences which consist in the uttering of words, such as using seditious language, it ought to be a mitigation that the words were not deliberately spoken, but uttered when the speaker was intoxicated. (i. 46, 47.)-See also Hume i. 570, and John Alves, April 14th 1830; 5 Deas and Anderson 147. 3 Hume i. 51, 52, and cases of Riddell Fairny and others: Gilchrist and Main and others there. -Alison i. 672, 673. 4 Hume i. 52-i. 484, and case of Hews and others there.-Alison i. 639, 640, 673. 5 Hume i. 50. by parent. tion. be previous to offence under trial, and for same. AGGRAVATIONS. In fixing punishment, not only the act committed, but all the circumstances which tend to aggravate or to palliate it, are considered. All statutory or special aggravations, such as the mode of the commission, the position of the injured party, or the character of the delinquent, will be noticed later. But Previous convic- there is one aggravation which it is always competent to charge-viz., previous conviction of a similar offence (1)—and it will be convenient to notice the rules connected with it here. The conviction must be Conviction must for a previous offence, as the aggravation consists in the act being committed by a person who had been before convicted (2), and for the same crime (3), though not necessarily under exactly the same conditions. Previous convictions of assault alone or theft charges of same alone may be used in aggravation of assault with inin unaggravated tent to ravish, or theft by housebreaking, and vice versa. Where the mode of perpetration has been the same, this may be an additional aggravation. Thus if theft by housebreaking be charged, and there is a previous conviction of theft by housebreaking, the prosecutor may found on both branches of the conviction as aggravations. But where the specialties of the offence under trial differ from those of the previous conviction, as where a conviction for theft by opening lockfast places is brought forward on a charge of theft by housebreaking, the prosecutor founds on the conviction as one of theft, without noticing the aggravation (4). Convictions of aggravated crime competent case, and vice versa. 1 John or Alex. Campbell, H.C., June 3d 1822; Shaw 66. 2 Jess Mitchell or Carr, Glasgow, January 1837; Bell's Notes 32.-John Graham, Ayr, Sept. and H.C., Nov. 21st 1842; 1 Broun 445 (this point is not mentioned in the rubric) and Bell's Notes 32. 3 Houston Cathie, H. C., January 27th 1823; Shaw, 93.-Ellen Fal coner and others, H.C., January 26th 1852; J. Shaw 546 and 24 S. J. 175 (Lord Justice-General M'Neill's, then Lord Colonsay--and Lord Justice-Clerk Hope's opinions). 4 John Humphreys and others, Dumfries, May 1st 1837; 1 Swin. 498 and Bell's Notes 276. |