(ii) Passive-Where the conduct is the result of inadvertence. There are, however, some exceptions to the rule that mens rea is necessary to constitute a crime. It is impossible to systematise or define these exceptions, which, however, except in the case of public nuisances, relate for the most part only to minor offences created by statute, and particularly to offences such as the adulteration of food, or the sale of food under false trade descriptions, or the sale of intoxicants (k). In many of such cases the Court has come to the conclusion that the object of the statute would be defeated if guilty knowledge or intention were held to be necessary to constitute the offence, and therefore that criminal responsibility may be fixed upon a man for acts done by his servant in the course of his employment, even though the master may have expressly forbidden them. The same principle applies to some and perhaps all public nuisances" (1). No general rule can be laid down as to when mens rea is necessary to constitute a statutory offence, and it is necessary to look at the object and terms of each act to see whether, and how far, knowledge or any criminal intention is of the essence of the offence created (m). Though a mere intention is not punishable if no steps are taken to carry it into effect, an attempt to commit either a felony or a misdemeanour is itself a crime, and therefore the subject of punishment. An attempt may be said to be the doing of any of the acts which must be done in succession before the intended object can be accomplished, with the limitation that it must be an act which directly approximates to the offence, and which, if the offence were committed, would be one of its actual causes as distinct from a mere act of preparation (n). Thus A., with the intention of endeavouring (k) See Sherras v. De Rutzen, [1895] 1 Q. B., at p. 921; 64 L. J. M. C. 218; Coppen v. Moore, [1898] 2 Q. B., at p. 312; 67 L. J. Q. B. 689. (1) [1895] 1 Q. B., at p. 921. (m) Cundy v. Le Cocq, [1884] 13 Q. B. D., at p. 209. Compare Chisholm v. Doulton, 22 Q. B. D. 736; 58 L. J. M. C. 133. (n) R. v. White, [1910] 2 K. B. 124; 79 L. J. K. B. 854; R. v. Linneker, 75 L. J. K. B. 385. fraudulently to obtain insurance moneys, represented that a burglary had taken place at his shop and that jewellery had been stolen. He had, in fact, hidden the jewellery in his shop, and was found by the police tied up as if by burglars. He had made no application for the insurance. It was held that he had not yet made any attempt, but only preparation for an attempt which he contemplated (o). But one of a series of acts done to attain a desired result may be an attempt although it could not effect the result unless followed by other acts. For instance, the giving of a small dose of poison, which would not be fatal unless followed by other doses, may be an attempt to murder (p). An attempt to commit a crime which in fact, owing to the circumstances of the case, cannot be committed, is nevertheless punishable as an attempt. Thus a person may be convicted of attempting to steal from a pocket, although that pocket may have contained nothing that could be stolen (q). Every attempt to commit an indictable offence is itself an indictable misdemeanour at common law. In one case, i.e., attempt to murder, it is a felony by statute (r). If on the trial of a person charged with felony or misdemeanour the jury do not think that the offence was completed, but, nevertheless, are of opinion that an attempt was made, they may find a verdict to that effect. The prisoner is then dealt with as if he had been convicted on an indictment for the attempt (s). (0) R. v. Robinson, [1915] 2 K. B. 342; 84 L. J. K. B. 149. (p) R. v. White, supra. (q) R. v. Ring, 61 L. J. M. C. 116. He might also properly be charged with assault with intent to commit a felony; v. p. 175. (r) 24 & 25 Vict. c. 100, ss. 11-15. (8) 14 & 15 Vict. c. 100, s. 9. CHAPTER III. PERSONS CAPABLE OF COMMITTING CRIMES. The THERE are certain exemptions from criminal responsibility; and, under certain circumstances, acts which would otherwise be criminal are on some special ground not deemed so. personal exemptions are based upon exceptional considerations and will be dealt with at the end of this chapter. Apart from these special cases the exemption, as a rule, arises from the absence of one of the essential elements dealt with in the preceding chapter. The burden of proving the circumstances which confer the exemption lies upon the accused. The law, in the first instance, presumes that he is innocent. But as soon as it is proved that he has committed what, ordinarily, is a criminal offence, the law, as we have seen, presumes that his acts were voluntary and that he intended their natural consequences, and therefore had a criminal intention. Accordingly it is for the accused to rebut these presumptions. So also it is for him to prove any matters which, under the special circumstances of the case, may amount to a justification or excuse. The several instances of irresponsibility may be reduced to the following classes: (1) Absence of criminal intention:-Insanity: Infancy: Ignorance (mistake): Accident. (2) Absence of will, i.e., the act is purely involuntary: Physical compulsion, as if A. kills B. with C.'s hand. (3) Instant and well-grounded fear, which either is, or in theory is assumed to be, stronger than the fear naturally inspired by the law: Fear of excessive unlawful harm: Coercion of married women by their husbands. (4) When an act, under ordinary circumstances criminal, is denuded of that character, inasmuch as it is directly authorised by the law: In pursuance of legal duty; e.g., the sheriff hanging a criminal. In pursuance of legal right; e.g., slaying in selfdefence. Here the motive of the accused justifies or excuses his act. Thus if A. kills B. in a fight, his intention, viz., to do harm to B., is the same whether he is acting purely in self-defence or from revenge or a desire to fight (ss), but in the former case his motive is one which is lawful and therefore exempts him from criminal responsibility. Some of these grounds of exemption must now be dealt with more fully. Insanity. Two classes of mental alienation are usually recognised: (1) Dementia naturalis, or a nativitate-in other words, idiocy, or absence of understanding from birth, without lucid intervals. A person deaf and dumb from birth is by presumption of law an idiot, but it may be shown that he has the use of his understanding. (2) Dementia accidentalis, or adventitia-usually termed insanity. The mind is not naturally wanting or weak, but is deranged from some cause or other. It is either partial (insanity upon one or more subjects, the party being sane upon all others) or total. It is also either permanent or temporary, the person in the latter case being afflicted with his disorder at certain periods only, with lucid intervals (t). Three stages in the history of the law as to insanity may be discerned. The first may be illustrated by the following dictum of an English Judge in the year 1724: A man who is to be exempted from punishment "must be a man that is totally deprived of his understanding and memory, and (ss) v. p. 149. (t) As to dementia affectata, or drunkenness, v. p. 18. doth not know what he is doing, no more than an infant, than a brute, or a wild beast" (u). In the second stage the power of distinguishing right from wrong in the abstract was regarded as the test of responsibility (w). The third and existing doctrine dates from the trial of M'Naughten in the year 1843 (x). In M'Naughten's case certain questions were propounded by the House of Lords to the Judges. The substance of their answers was to the following effect: "To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong. Thus the question of knowledge of right or wrong, instead of being put generally and indefinitely, is put in reference to the particular act at the particular time of committing it. As to partial insanity, that is, when a person is sane on all matters except one or more, the judges declared that “he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment." And again: "Notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable if he knew at the time of committing such crime that he was acting contrary to the law of the land.” (u) R. v. Arnold, [1724] 16 How. St. Tr. 764. (w) R. v. Bellingham, [1812] Collinson on Lunatics, 671. |