person who commits an act made punishable by the law, is exempted from liability to the punishment prescribed. But to this rule there are several exceptions, founded on the absence of criminal intention. The principle is, that in the perpetration of a crime the mind must concur with the body, the will with the muscular organs, or the actor is not to be held responsible. If, therefore, either from imbecility, insanity, mischance, or necessity, one does an act which would be criminal if done intentionally, he stands excused on the ground of having no criminal volition. Thus idiots always, lunatics during the intervals of insanity, and infants while too young to know the distinction between right and wrong, are held excusable for those acts which would otherwise be punishable, because they cannot harbor a criminal design; but drunkenness, which is a voluntary insanity, is no excuse. Again, if the act which would otherwise be criminal, is the result of an accident or mistake, which the law calls mischance, the actor is not responsible, because he did not do it wilfully; but mere ignorance of the criminality of the act, when the act itself is done. intentionally, is no excuse; because every person of sound mind is held bound to know what acts are declared by the law to be criminal. Lastly, if the act which would otherwise be criminal, be the result of inevitable necessity, the actor is excused, because he could exercise no volition. Thus, if the compulsion be physical, or if it result from an injunction of law, the exemption is absolute. But the command of no superior, except the law, can excuse the commission of a crime; for there is no necessity for

of voluntary dissipation, is as much an excuse for crime as any other form of insanity. Second. That voluntary intoxication, not depriving the party of all knowledge of what he was doing, is not of itself an excuse for any crime. Third. That when some specific intent must be proved, in order to constitute a particular crime, the jury may consider the fact and degree of intoxication in determining whether the party had capacity to form such intent. Fourth. That intoxication will not reduce an unprovoked homicide from murder to manslaughter; but if legal provocation has been given, it may be considered in determining whether, in fact, the party acted upon such provocation, or from malicious motives, in giving the fatal blow." The Second includes such cases as Pigman v. State, 14 Ohio R. 555, where it was held that on a charge of passing counterfeit money, if the accused was so drunk that he did not know that he passed a bill that was counterfeit, he is not guilty.

At the common law an infant under the age of seven years was conclusively presumed to be doli incapax; between the ages of seven and fourteen, he was presumed to be doli incapax, but the presumption could be controverted and overcome by evidence. There was one exception; a boy under fourteen was conclusively presumed to be incapable of rape. In the United States the same presumptions prevail. State v. Learned, 41 Ver. 585; Godfrey v. State, 31 Ala. 323; State v. Doherty, 2 Overt. (Tenn.) 80. And see Commonwealth v. Mead, 10 Allen, 398; People v. Kendall, 25 Wend. 399; State v. Handy, 4 Harr. (Del.) 566; Stephenson v. State, 28 Ind. 272. In Ohio, however, it is held that the presumption of incapacity between the ages of seven and fourteen is in all cases open to be controverted by evidence of the fact being to the contrary. Williams v. State, 14 Ohio R. 222. This decision has been followed in New York People v. Randolph, 2 Parker, Crim. Cases, 174.

There is a general presumption that a wife who commits a crime in the presence of her husband does it under his coercion, and therefore cannot be held guilty. But this presumption does not arise in treason, homicide, or robbery; nor does it arise in offences of a character in which women are supposed especially to participate, such as keeping brothels and other disorderly houses. This presumption may always be rebutted by evidence, and the wife be shown to have acted from her own will.

obeying such a command. It was indeed formerly held, as we have seen, that a wife was excusable for concurring with her husband, on the ground of constraint, but this absurd idea is now nearly exploded. There is, however a species of moral compulsion, which the law always allows to palliate, and often to excuse, the commission of a crime. Thus, where the act is done strictly in self-defence, it is excused on the ground that the actor in violating a human law, did but obey a still higher law. So where the act is done in a moment of strong and overpowering excitement, before the passions, suddenly provoked, have had time to cool, the guilt, if not wholly excused, is greatly palliated, out of regard to the infirmity of our nature. It has often been made a question, whether extreme want of food, clothing, or shelter, ought not to be a justification of the acts done to relieve immediate necessities. Humanity would incline us to answer in the affirmative, but the plea of want, if once allowed, would open so wide a door to depredation, that the policy of the law is against admitting it. I have thus briefly indicated the general principles upon which crimes are palliated or excused, for want of criminal intention in the perpetrator. The application of these principles will be made, when we come to the description of crimes.

§ 190. Principals and accessories. (a) We have already seen that, to constitute a crime, there must be an act. In perpetrating this act more persons than one may be concerned; and they may be concerned more or less directly. This has led to some important distinctions. He who directly and absolutely perpetrates the act, is denominated principal in the first degree. He who is present aiding and abetting, is denominated principal in the second degree; and this presence may either be actual, as where one stands immediately by and assists; or it may be constructive, as where one keeps watch at a convenient distance. Again, he who is neither chief actor, nor actually or constructively present, may still be guilty of participating in the perpetration or in its results; in which case he is denominated an accessory. If he procure, advise, or command the act to be done, he is an accessory before the fact. If, knowing the act to have been done, he receives, comforts, or assists the criminal, or shares in the avails of the crime, he is an accessory after the fact. And the general rule has been that though an accessory cannot be punished until the principal has been convicted, yet then he is liable to the same punishment as the principal. But the distinction between principals and accessories applies only to crimes standing in the middle rank of guilt; for in treason, on account of its magnitude, and in petty offences, on account of their littleness, all participators have been treated as principals. Such are the doctrines and distinctions of the common law; and it would not be difficult to show that some of them are arbitrary, and all

(a) See 2 Swift's Dig. b. 5, chap. 14; 4 Black. Com. chap. 3.

of them unnecessary. For why make these distinctions in name, when the criminality and punishment are the same? If the distinction be well founded in middling crimes, why not extend it to all? And why allow the accessory to escape merely because the principal cannot be found? But these distinctions are greatly modified in this State. We have a general provision, that if any person "aid, abet, or procure" another to commit any offence punishable with death or imprisonment in the penitentiary, he shall be liable to the same punishment as the chief actor would be liable to, if convicted. This provision embodies the essence of the common-law distinctions without their complexity or arbitrariness; and there are similar provisions in the federal code. But they are all defective in one respect; they do not extend to all offences; though there can be no good reason for excluding any. In fact, there are several special provisions designed particularly to remedy this imperfection. But why might there not be, in place of all these, one universal provision, punishing all who aid, abet, procure, or participate, with the same punishment as those who actually perpetrate the offence; and inflicting this punishment whether the chief actor be found or not? Such a provision would be at once simple and comprehensive; and I can perceive no objection to it.

§ 191. Improvement Suggested. From the general views now presented, it will be seen that though criminal law has undergone important changes in this country, all of which are very decided improvements, yet many deficiencies still remain to be supplied. In addition to those already indicated, the want of a general provision for compensation to the injured party, when the case admits of it, is worthy of notice. There are some special provisions to this effect; but the principle thus recognized should be made universal. In all cases but homicide, compensation of some sort can be made to the individual himself; and in the case of homicide, it might be made to his family. Where the offender is able, this compensation should be made by him as a part of his sentence; and where he is unable, the principle of equality would seem to require that it be made at the public expense. Another very important desideratum, is a more general uniformity in the criminal laws of the different States. So great is the present diversity, that in contemplating it, one might almost be tempted to suppose that criminal legislation is an affair altogether arbitrary and capricious; not governed by fixed and immutable principles, but varying like climate, with geographical limits. Yet surely this is not the fact. The diversity does not spring from the nature of the subject. What is criminal in Maine should be so in Louisiana. There is nowhere a sufficient difference in the social condition, to make any important difference in criminal legislation. But whatever be the cause of the diversity, it does exist to a remarkable extent; and among many evil consequences, one not the least to be regretted, is that it becomes a matter of calculation among the vagabond

portion of our community, who live by preying upon society, in which of the States they may commit the greatest number of outrages, with the fairest prospect of mild punishment or entire impunity. Accordingly, that State which ventures to be most humane, will be most likely to be thronged with rogues and knaves; since, in addition to the usual proportion of its own population, it must bear the burden of immigration from those States where the laws are more sanguinary. But we are not without hope that time will bring about a greater degree of uniformity. Throughout the civilized world, the spirit of inquiry and reform is now more generally directed to the subject of crimes and punishments, than to any other matter affecting our social condition. Commissioners are appointed to visit distant regions, and compare criminal codes; and a general improvement must be the ultimate result.

LECTURE XXXV.

CRIMES UNDER THE STATE LAW.

§ 192. General Division of Crimes. In this lecture, I propose to consider the principal offences punished by State legislation, but without attempting a complete enumeration. And at the very outset I find difficulty in selecting any suitable classification. The most general division of crimes is into the three following classes: 1. Crimes affecting the public welfare. The theory of criminal law is, that all crimes affect the public welfare; otherwise, society would not interfere with them. But there are some which have this tendency much more directly and immediately than others. Such are all those offences against the justice, health, morals, peace, and property of the public, which do not directly affect either the persons or property of individuals. 2. Crimes affecting private persons. The personal rights of individuals, expressed in general terms, include life, liberty, health, reputation, and happiness, which, as we have seen, are declared in our constitution to be inalienable rights. All offences, therefore, which tend directly to injure or destroy either of these rights, would fall within this class. 3. Crimes affecting private property. This class would of course include all offences having a direct reference to the property of individuals. In the present lecture, my object is to present a mere sketch of the crimes punishable in this State, in the order indicated by the above classification. The minor offences will be barely referred to, for the purpose of grouping them together. Of the higher offences, I shall speak somewhat more at length. And although the subject of indictments belongs properly to a future lecture on criminal procedure, I shall so far anticipate that subject

here, as to give, in connection with some of the higher offences, that part of the indictment which describes the offence. If the student will particularly note the technical description of the offence, he will be enabled the more accurately to remember in what the offence consists. I have before said that an indictment is a formal accusation of an offence, drawn up by the prosecuting officer, and found to be true by a grand jury; and that no man can be put upon his trial upon any criminal charge, except those of the lowest grade, until such an indictment has been found against him. The caption and conclusion of the indictment, which are merely formal and the same in all indictments, will be omitted, and only that part given which describes the offence.

§ 193. Crimes Affecting the Public Welfare. Under this head I shall consider a variety of offences, which scarcely admit of a more particular classification. In defining them, especially those of a minor sort, I shall use all possible brevity. (a)

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Perjury and Subornation. (b) To understand the nature of perjury, we must first consider the purpose of an oath. The dictionary definition of an oath is, an affirmation, negation, or promise corroborated by the attestation of the Divine Being." But in terms an oath differs from an affirmation in this: an oath is a direct appeal to God for the truth of what one says, or the performance of what one promises; while an affirmation appeals only to the pains and penalties of perjury. The one presupposes a belief in a future retribution; the other does not. The law requires an oath or affirmation from three classes of persons: namely, witnesses, jurors, and public officers; and as many persons have conscientious scruples against taking an oath, it is in

(a) An act was passed April 26, 1861, declaring it treason against the State to levy war against, or knowingly adhere to the enemies of, the State, or the United States. The penalty is imprisonment for life. Betraying military posts, &c., supplying arms and ammunition to enemies, and not giving information of treason to the proper officials, are punishable by imprisonment for not less than ten nor more than twenty years. Setting on foot any military enterprise against the territory or people of any one of the United States, is punishable by imprisonment for not less than one nor more than ten years.

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(b) Indictment. That heretofore, to wit, at the court of —, begun and holden in the county aforesaid, before the [presiding judge] on the -a certain action of trespass for assault and battery was pending, in which was plaintiff, and was defendant; in which action issue had before that time been joined ; which issue then and there came on to be tried by a jury of said county in due form of law; and then and there, upon the trial of said issue, one being produced as a witness on behalf of said plaintiff, did make oath before the said [presiding judge], who was then and there duly authorized to administer such oath, that the evidence which he should give to the said court and jury, touching the matters in question on the said issue, should be the truth, the whole truth, and nothing but the truth; and it then and there became a material question, upon the trial of said issue, whether the said defendant had struck the said plaintiff, and how many blows; and thereupon the said did then and there, under the oath aforesaid, falsely, wilfully, and corruptly declare, that the said did see the said defendant on strike the said plaintiff blows with his fist; whereas in truth and in fact the said did not see said defendant on — -, at, or at any other time or place, strike the said plaintiff at all, with his fist or otherwise; but the said declaration of the said under oath as aforesaid, was then and there wholly false and untrue, as he the said then and there well knew; and so the said did then and there, in manner and form aforesaid, commit wilful and corrupt perjury.

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