an innocent man. But in such a assailant (x). case he may kill his State of Married Women.-In many cases of felony, if a married woman commits the crime in the presence of her husband, the law presumes that she acts under his coercion, and therefore excuses her from punishment. But this exemption is not allowed in treason, nor even in all felonies, though it is not well settled where the line is drawn. It appears, however, that in murder, at all events, this protection is not allowed to the wife (y). In no case is she excused if her husband be not present, not even if the act be done by his order (2). The presumption of law may be rebutted by evidence. Thus, if it can be shown that she acted voluntarily, and was the principal actor and inciter of the crime, she may be convicted, although her husband were present (a). In cases of misdemeanour the prevailing opinion seems to be that the wife is responsible for her acts, although her husband was present at the commission (b). However, in earlier cases this was doubted, and the rule prevailing in felony applied (c). At any rate, the exemption does not extend to those offences relating to domestic matters and the government of the house, in which the wife may be supposed to have a principal share, as in keeping a disorderly or gaming house. It requires the co-operation of two persons at least to constitute a conspiracy. Of this crime, therefore, a husband and wife cannot by themselves be convicted, inasmuch as in the eye of the law they are regarded as one person. So a wife cannot be convicted of stealing her husband's goods, except under the Married Women's Property Act, 1882 (d); nor of harbouring him when he has committed a crime. (x) v. p. 140. (y) R. v. Manning, [1849] 2 C. & K. 903. (z) Brown v. Att.-Gen. of New Zealand, [1898] A. C. 234; 67 L. J. P. C. 7. (a) Archbold, 21; R. v. Baines, [1900] 69 L. J. Q. B. 681. (b) R. v. Cruse, [1838] 8 C. & P. 541; v. Archbold, 21. (c) R. v. Price, [1837], 8 C. & P. 19. (d) 45 & 46 Vict. c. 75, s. 16; now reproduced by 6 & 7 Geo. 5, c. 50, s. 36; v. p. 203. This relation of wife to the husband is the only one which the law recognises as a shield from criminal punishment. The other private relations, parent and child, master and servant, will not excuse the commission of any crime; either child or servant being liable, notwithstanding the command or coercion of the parent or master. Certain exceptional cases, where the ordinary rules as to the capability of committing crime do not entirely prevail, require a brief notice. The Sovereign.-The Sovereign can do no wrong; therefore he is not amenable to the ordinary criminal Courts of his kingdom. But although it is presumed that he can do no wrong, yet if he commands an unlawful act to be done, e.g., an unlawful arrest, the person doing it is not indemnified, but is punishable. Corporations. Even corporations aggregate, such as railway and other companies, may be indicted by their corporate names for breaches of duty; whether such breaches consist of wrongful acts, e.g., obstructing highways, or wrongful omissions, e.g., neglecting to repair bridges (e). Aliens. Foreigners who commit crimes in England are punishable exactly as if they were natural-born subjects. It is no defence on behalf of a foreigner that he did not know he was doing wrong, the act not being an offence in his own country. Though this is no defence, it may mitigate the punishment (f). Ambassadors. Different views, materially conflicting with each other, have been held as to the criminal liability of ambassadors and their suites. Most writers maintain that for no offence, whether it be against the life, person, or property of an individual, is an ambassador amenable to the criminal (e) R. v. Great North of England Railway Co., [1846] 9 Q. B. 315; R. v. Tyler & Others, [1891] 2 Q. B. 588; 61 L. J. M. C. 38. (f) R. v. Esop, [1836] 7 C. & P. 456. law of the country to which he is sent (g): for, by the fiction of exterritoriality, he is regarded as continuously resident in the State of which he is the representative (h). Others assert that though he is not punishable for crime made such by the laws of the particular country, he is so for any great crimes which must be such in any system. Or, as it is sometimes expressed, he is punishable for mala in se, but not for acts which are merely mala quia prohibita. Thus, upon this view, which is, however, very doubtful, an ambassador might be convicted for murder or rape, but not for smuggling. There is, however, one class of offences which, if committed by an ambassador or one of his suite, might stand on a different footing, namely, offences affecting the existence and safety of the State. For a direct attempt against the life of the Sovereign, it is said that the offender would be directly punishable by the State (i). (g) Phillimore's International Law, vol. ii. part vi. c. 7. CHAPTER IV. PRINCIPALS AND ACCESSORIES. THOSE who are implicated in the commission of crimes are either Principals or Accessories. recognised in felonies alone. Principals are either This distinction is Principals in the first degree, or Principals in the second degree. Accessories are either Accessories before the fact, or Accessories after the fact. Of these in their order: Principal in the first degree. He who is the actor or actual perpetrator of the deed. It is not necessary that he should be actually present when the offence is consummated; thus, one who lays poison or a trap for another is a principal in the first degree. Nor need the deed be done by the principal's own hands; for it will suffice if it is done through an innocent agent, as, for instance, if one incites a child or a madman to murder (k). Principal in the second degree.-One who is present aiding and abetting at the commission of the deed. This presence need not be actual; it may be constructive. That is, it will suffice if the party has the intention of giving assistance, and is sufficiently near to give the assistance; as when one is watching outside, while others are committing a felony inside the house. There must be both a participation in the act and (k) R. v. Michael, 9 C. & P. 356; R. v. Bleasdale, 2 C. & K. 765. a community of purpose (which must be an unlawful one) at the time of the commission of the crime. So that, as to the first point, mere presence or mere neglect to endeavour to prevent a felony will not make a man a principal; as to the second, acts done by one of the party, but not in pursuance of the arrangement, will not render the others liable. The distinction between principals of the first and of the second degree is not practically a material one, inasmuch as the punishment of offenders of either class is generally the same. Accessories are those who are not (i) the chief actors in the offence, nor (ii) present at its performance, but are some way concerned therein, either before or after the fact committed. Accessory before the fact.-One who, being absent at the time when the felony is committed, yet procures, counsels, commands, or abets another to commit a felony (1). The bare concealment of a felony about to be committed does not make an accessory. It is not necessary that there should be any direct communication between the accused and the principal; e.g., if A. requests B. to procure the services of C. in order to murder D., A. will be an accessory. The accessory will be answerable for all that ensues upon the execution of the unlawful act commanded, at least for all probable consequences: as, for instance, if A. commands B. to beat C., and he beats him so that he die, A. is accessory to the murder. But if the principal intentionally commits a crime essentially different from that commanded, the person commanding will not be answerable as accessory for what he did not command. Thus, if A. commands B. to break into C.'s house, and B. sets fire to the house, A. cannot be convicted of the arson. But a mere difference in the mode of effecting the deed, or in some other collateral matter, will not divest the commander of the character of accessory if the felony is the same in substance. Thus, if A. commands B. to kill C. by poison, and he kills him with a sword, A.'s command suffices to make him an accessory (m). (1) Archbold, 1375. (m) Archbold, 1376. |