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It is purposed to treat of those offences only, for the scope or work. suppression of which the judge or magistrate has the power of pronouncing a sentence of death or deprivation of liberty, without the offender having the option of paying a pecuniary penalty. To notice offences punishable in the first instance by fine only, would occupy too much space, and would, moreover, be going beyond the limits of a work on criminal law. For many such offences are not crimes, being made punishable to secure the enforcement of sanitary rules, or to further the comfort of the community, and not implying malice or criminal recklessness. It is true that no division of this sort can be perfectly satisfactory. For on the one hand imprisonment may be ordered in some cases, which are mere breaches of civil engagement, such as desertion of service ; and on the other, some offences which are punishable by fine only in the first instance, are essentially criminal. But it is thought that the limitation proposed will be sufficiently convenient. That part of the work which applies to practice, need not be thus restricted, but will be available in all cases regulated by the rules of the criminal law, whether the offence be strictly criminal or not.

It will save repetition if a few general rules are GENERAL stated at the outset. First, it is important to observe,



Criminal act implies evil intent.

trator think it meritorious.

Prosecutor necd



that as a general principle, the law holds a man to have PRINCIPLES.

acted criminally, when the deed he has done is a crime in itself. The wicked intent is presumed (1). And

although the perpetrator may, from fanaticism, conThough perpe

sider his deed meritorious, the law holds him to have acted “ wickedly and feloniously” (2). Whenever a sane person—able to distinguish right from wrong,acts in a manner which the law holds to be criminal, the legal presumption is that he does so wilfully. On

this principle the prosecutor is not required to estabnot prove motive. lish a motive for the commission of the crime (3).

Further, though the act done be not exactly that THAT INTENDED. which was intended, the perpetrator may still be held

guilty of criminally doing that which has actually happened. This may result either from a crime taking effect on a different individual from the person at whom the wrong was aimed, or from the crime re

sulting in injuries different from those intended. To Injury aimed at illustrate the former case—if A fire at B, and the shot B, taking effect

killed C, or if A put poison in a cup intended for B, and C drink of it and die, A is guilty, though he had no ill-will to the deceased. His murderous acticn is the cause of C's death (4). Indeed it is not necessary

that the act be directed against any one in particular. Firing into

To fire a gun into a crowd, or place a log in front crowd, or obstructing train. of a railway train, is murder, if death ensue, though

no one in the crowd or the train was known to the
offender (5)
1 Hume i. 21, 22.

engaged along with him ir pro-
2 Hume i. 25.-Alexander Ding- tecting a churchyard, and
wall, Aberdeen, Sept. 19th and mistaken by him for a “body-
20th, 1867; 5 Irv. 466.

“snatcher." This, it was laid 3 Hume 254. Elizabeth down, was murder, as it would Edmiston, H. C., Jan. 15th, 1866 ; have been murder had the accused 5 Irv. 219 and 1 S. L. R. 107.

on C.



killed a person who came to take 4 Hume i. 22, and cases of Car- away

dead bodies. Andrew negie: and Hay there.-Alison i. Williamson, Perth, Sept. 48 to 50.--Andrew Ewart, H.C., 1833 ; 6 S. J. 40. Feb. 11th 1828 ; Sime 315. (In 5 Hume i. 23, and case of Niven this case the person killed was the there. See same case, Appendix, accused's intimate friend, who was vol. ii, 531-Alison i. 51.


Death from

To illustrate the latter case :- -If A attack B, and attempt by violence to rob him, or to do him some grievous bodily harm, and B die, A is guilty of murder, violence in though he had no intention to cause death (1) Or if robberymeans are used to cause a pregnant woman to abort, or attempt to and the woman die, the crime is murder (2) rule may or may not apply according to circumstances. The general principle is, that where what has happened was not unlikely to occur, the perpetrator is answerable for the result (3).

cause abortion.




The law of Scotland makes no distinction between "ACTOR OR ART guilt by commission and guilt by accession. Every person indicted, except in treason cases, and cases of concealment of pregnancy (4), is charged as "actor or art and part." It is not necessary to determine under Not necessary which category the case falls. Whether the verdict guilt is as actor be guilty as "actor," or guilty as "art and part," or be a general verdict of "guilty as libelled," the effect is the same. The theory is that it is of no consequence whether the guilt is of the one kind or the other. The accusation virtually says "you are guilty, whether as actor, or as art and part, matters not." By this rule niceties are avoided, and it is as Trial of acceseasy to try an accessory as a principal. For example, of principal. an abettor of fraudulent bankruptcy (5), or of breach of trust (6), or of rape (7), is charged along with the

to fix whether

or as art and part

sory the same as

1 Hume i. 23, 24.

2 Will. Reid, H. C. Nov. 10th and 11th 1858; 3 Irv. 235 and 31 S. J. 176 (Indictment).

3 Alexander Dingwall, Aberdeen, Sept. 19th and 20th 1867; 5 Irv. 466 and 4 S.L. R. 249.

4 In treason cases all are held principals (Hume i. 533-Alison i. 616), and in concealment of pregnancy there can obviously be no accession, (Hume i. 299.-Alison i. 158. Alison Punton, H.C., Nov. 5th 1841; 2 Swin. 572 and Bell's Notes 219.).


5 Richard F. Dick and Alex. Lawrie, H.C., July 16th 1832; 4 S. J. 594 (Indictment).-Rob. Moir and John Moir, H.C., Dec. 5th 1842; 1 Broun 448 (Indictment.)

6 Rob. Smith and Jas. Wishart, H.C., Mar. 23d 1842; 1 Broun 134 and Bell's Notes 18.

7 Hume i. 305, 306, and case of Turnbull and others there.-Alison i. 218, and case of Cumming and M'Cartney there.-John Jamieson and others, H.C., Dec. 21st 1842; 1 Broun 466.


be tried alone.


“ ACTOR OR ART principal. So far is this carried, that if the principal Accessory may abscond, the accessory may be tried alone for the

offence, as having aided and abetted (1). The case of Art and part of forgery illustrates this, where all concerned in the .

fabrication are art and part of the guilt of the utterArt and part of ing (2). A still better instance is the case of bigamy,

in which only one or two persons can be principals. But the person who marries another knowing that other to be already married (3), and the clergyman who, being cognizant of the facts, performs the ceremony, are both guilty. Even the witnesses of a bigamous marriage are guilty, if they lend themselves to the fraud, by concealing it from the celebrant, or from the party who is deceived (4).

Guilt by accession may be incurred by giving counsel or assistance to, or otherwise acting in previous concert with, the principal; or by concert, assistance, or participation at commission, or by all or any of these modes combined.

Where the guilt is by previous counsel alone, the Instigation must instigation must have been direct and serious (5).

The question whether it was so or not is one of circumstances. Where one person has authority over another, as in the case of soldiers, the mere order to

do the act may infer guilt (6). The strongest case is Instigating that of a person inciting an unreasoning being, such

as an infant or an idiot, to commit a crime (7). Indeed, in such cases, the instigator is truly a principal,



be serious.

child or idiot.

1 Hume i. 283, 284—Alison i. 69. -James Hughes, Jedburgh, April 5th 1842; 1 Brown 205 and Bell's Notes 85.

2 Hume i. 155, cases of Halliday and others : and Tarbet and Ferne there.-Alison i. 395, 396, and cases of Gillespie and Edwards : and Ovens th

3 Hume i. 462—Alison i. 539.Isabella Bain or Bell and Johu Falconer, H.C., July 13th 1832;

Bell's Notes 113 and 5 Deas and
Anderson 509.-Catherine Potter
or Auchincloss and David Inglis,
H.C. July 21st 1852; 1 Irv. 73.

4 Hume i. 462—Alison i. 539, 540.

6 Hume i. 278, 279— Alison i. 57, 58.

ні i. 277-Alison i. 58. 7 Hume i. 281.-See also Will. Ross and Rob. Robertson, Inverness, April 23d 1836 ; 1 Swin. 195.

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