cessity or charity existed, there was no guilty intent, and consequently no crime. So, where a man, supposing that he was killing a thief in his own house, killed one of his own family, he was held not guilty, "for he did it ignorantly, without intention of hurt to the said Frances." Levett's case, Cro. Car. 538. See, also, United States v. Pearce, 2 McLean, 14; Com. v. Rogers, 7 Metc. 500; Com. v. Kirby, 2 Cush. 577; Regina v. Alladay, 8 Car. & P. 136; Com. v. Presby, 14 Gray, 65; 1 Whart. Crim. L. (8th ed.), sec. 87. Where, however, a scienter is irrelevant, ignorance or mistake of fact is no excuse. Thus where a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact is no defense. Farmer v. People, 77 Ill. 322; State v. Heck, 23 Minn. 549; State v. Stimson, 4 Zabr. 478; State v. Melville, 11 R. I. 417; see article by Mr. Bishop in 4 Southern L. Rev. 155 et seq.; 1 Whart. Crim. L. (Sth ed.), sec. 88. 10. Subdivision 5. See n. 9. As to the criminal responsibility resulting from the commission of an unlawful act, by a person who is intoxicated, see sec. 22, n. 1, 2. 11. Subdivision 6-Indictable Negligence.- "A negligent offense is an offense which ensues from a defective discharge of a duty, which defect could have been avoided by the exercise, by the offender, of that care which is usual, under similar circumstances, with prudent persons of the same class. Negligence is of two kinds; culpa levis, which is the lack of the diligence and care usual with good specialists of the particular class under the circumstances; and culpa lata, which is the lack of the diligence and care exercised by honest and worthy non-specialists dealing with similar objects. In criminal cases this distinction operates mainly to determine the degree of evidence required to convict." 1 Whart. Crim. L. (8th ed.), sec. 125. In the note to Rex v. Hull, 1 Ben. & Heard, Lead. Cas. 51, will be found a very profitable discussion upon the subject of criminal negligence. It is there stated that a criminal intent may be, and should be inferred from any wanton or reckless conduct which results in an injury to another's rights: "For, as every one is, by law, presumed to intend the natural and ordinary consequence of his acts, if, therefore, he is guilty of that degree of negligence, which naturally and ordinarily leads to a certain result, he must be considered to have actually intended such result, and he is criminally responsible, as justly as if his conduct proceeded from actual malicious motives. Accordingly, we find it a well-established principle of criminal law, that if injuries are caused to a person's life or health, by acts which, if willful, would be punishable as crimes, the offender can not screen himself from criminal responsibility under the plea that such injury was caused by his negligence merely, and without positive malicious motive. The degree of the crime may not be the same as if the act was done with actual malice, but the character of a crime still remains, and the perpetrator is liable to be arraigned at a criminal bar. And wherever a public law imposes a public duty, absolute in its character, and not subject to discretion, the simple omission to perform such duty is indictable." Id. 51, 52. In Rex v. Carr, 8 Car. & P. 163, the defendant was employed to cast some cannon. One of them, on being fired, burst, and was sent back to be recast. The defendant, instead of recasting it, filled up the hole with lead, and returned it. On being again fired, it burst the second time, and killed the deceased. Defendant was convicted of manslaughter. So in People v. Fuller, 2 Park. Crim. R. 16, it was held, that a person who carelessly discharged a gun loaded with ball, into the highway, when it was dark, and thereby unintentionally killed a man who was passing, and whom he did not see, was guilty of manslaughter. See generally upon this subject, Rex v. Grout, 6 Car. & P. 629; Rex v. Timmins, 7 Id. 499; Queen v. Dallowoy, 2 Cox C. C. 273; Reg. v. Murray, 5 Id. 509; Reg. v. Dant, 10 Id. 102; People v. Fuller, 2 Park. Crim. R. 16; Commonwealth v. McLaughlin, 5 Allen, 507. 12. Indictable Omissions.-Mr. Wharton thus classifies such omissions as are indictable: I. Omissions constituting defects in the performance of duties which have been undertaken. Under this head fall most of the adjudicated cases of socalled omissions-e. g., omissions by switch-tenders to turn switches, of telegraph operators to send messages, of physicians to give required attention to patients, etc. II. Omissions constituting defects in the performance of duties which have not been eo nomine undertaken-i. e., non-contractual duties. 1. From the standpoint of general civic duty, the chief illustration of which is the omission of an accessary after the fact to notify the government of a felony. 2. From the standpoint of official duty, as where an officer whose duty it is to make an arrest, neglects to do so. 3. From the police standpoint, as where a person neglects to cover a ditch or well belonging to him, over which he knows travelers are accustomed to pass, or to cleanse a defective drain. 1 Whart. Crim. L. (8th ed.), sec. 131. In Rex v. Allen, 7 Car. & P. 153, and Rex v. Green, Id. 156, it was held that a negligent act of omission was not punishable criminally. That to be punishable criminally, some act must be done negligently, by which a person is injured, not the mere omission to do an act, although thereby a person is injured. These cases were indictments for manslaughter against the captain and pilot of a steamboat, for the death of a person on board of a smack, caused by running the smack down. The want of a sufficient lookout at the bow of the boat was regarded as the cause of the accident. Park, J., in reply to Chambers, for the prosecution, said: "You must show some act done. You rather state it as if a mere omission on the part of the prisoner in not doing the whole of his duty would be enough; and we are of opinion that is not sufficient." And Alderson, B., said: 'There must be some personal act." In Regina v. Lowe, 4 Cox C. C. 449; 3 Car. & Kir. 123, it was held, contrary, seemingly, to the last two cases, that an act of omission, as well as of commission, may be punishable criminally, and this seems to be the better rule, and the one generally adopted. In Reg. v. Conde, 10 Cox C. C. 547, a parent who, having the means to supply necessaries, negligently, though not willfully, withheld from a child food, which if administered would have sustained its life, and in consequence thereof the child died, was held guilty of manslaughter. See Reg. v. Ryland, Id. 569. In Reg. v. Bubb, 4 Id. 459, the defendant was indicted for murdering a child by starvation. The charge of William, J., to the jury, as to the criminal responsibility resulting from culpable negligence, is particularly instructive. "If the omission or neglect to perform the duty was malicious, then the indictment would be supported, and the crime of murder would be made out against the prisoner; but if the omission or neglect were simply culpable, but not arising from a malicious motive on the part of the prisoner, then, though it would be your duty to find her guilty, it should be of manslaughter only." The learned judge, after explaining what was meant by the expression malicious, then proceeded: "But if you are not satisfied that she contemplated the death of the child, then, although guilty of a culpable neglect of duty, it would amount only to the crime of manslaughter. If, on the other hand, you should think either that she did not undertake the duty of supplying the child with proper food and raiment, or that she did not culpably neglect that duty, then you will acquit her altogether." See State v. Hoit, 3 Fost. 355; Nixon v. People, 2 Scam. 269. An extended examination of this subject will be found in the note to Regina v. Lowe, 1 Ben. & Heard, Lead. Cas. 62. 13. Subdivision 7-Coercion by Husband.-At common law a married woman did not lose by the marriage her general capacity for crime. Yet as the law has cast upon her a certain duty to her husband of obedience, of affection, and of confidence, it has compensated her by the indulgence, that if, through constraint from his will, she carries her obedience to the excess of doing unlawful acts, she shall not suffer for them criminally. 1 Bish. Crim. L., sec. 357. The common law goes much further than our code, and not only excuses the wife acting under coercion of her husband from punishment for misdemeanors committed by her, but from most felonies as well. 4 Bl. Com. 28. But certain crimes, on account of their enormity, were exceptedsuch as treason, murder, and the like. 1 Bish. Crim. L., sec. 361; but the later decisions do not always recognize this exception. And other crimes, like that of keeping a brothel, are excepted, because peculiar to the female sex. 4 Bl. Com. 29; Stute v. Bentz, 11 Mo. 27. A married woman can not be treated as accessory for receiving her husband, knowing that he has committed a felony, for she is presumed to act under his coercion, and she is not bound, neither ought she to discover him. 4 Bl. Com. 39. Coercion is presumed from the mere presence of the husband, but this presumption is only prima facie, and is liable to be rebutted by evidence. Davis v. State, 15 Ohio, 72; State v. Nelson, 29 Me. 329; Com. v. Eagan, 103 Mass. 71. 14. Subdivision 8-Threats and Menaces.-One of the species of defects of will, which renders a person incapable of committing crime, as stated by Blackstone, is that arising from compulsion and necessity. After speaking of the obligation of civil subjection as a species of compulsion or necessity, that writer then proceeds: "Another species of compulsion or necessity is what our law calls duress per minas, or threats and menaces, which induce a fear of death or other bodily harm, and which take away for that reason the guilt of many crimes and misdemeanors; at least before the human tribunal. But then that fear which compels a man to do an unwarrantable action ought to be just and well grounded. Therefore, in time of war or rebellion, a man may be justified in doing many treasonable acts by compulsion of the enemy or rebels, which would admit of no excuse in the time of peace. This, however, seems only, or at least principally, to hold as to positive crime, so created by the laws of society, and which, therefore, society may excuse; but not as to natural offenses, so declared by the law of God, wherein human magistrates are only the executioners of divine punishment. And therefore, though a man be violently assaulted, and hath no * # * other possible means of escaping death, but by killing an innocent person, this fear and force shall not acquit him of murder; for he ought rather to die himself than escape by the murder of an innocent. But in such a case, he is permitted to kill the assailant; for there the law of nature and self-defense, its primary canon, have made him his own protector." 4 Bl. Com. 30. See Rex v. McGowther, 18 St. Tr. 391; Rex v. Crutchley, 5 Car. & P. 133; 1 Whart. Crim. L. (8th ed.), sec. 94. The subdivision of section twenty-six of the Penal Code, now under consideration, was taken from the rule as laid down by Blackstone, with the limitation that the threats or menaces must be such as to give the party reasonable cause to believe his life was in danger, and not such as would only cause bodily harm, other than the taking of life. 27. The following persons are liable to punishment under the laws of this state: 1. All persons who commit, in whole or in part, any crime within this state; 2. All who commit larceny or robbery out of this state, and bring to, or are found with the property stolen, in this state; 3. All who, being out of this state, cause or aid, advise or encourage, another person to commit a crime within this state, and are afterwards found therein. 1. Penal Laws-Operation and Effect of, Strictly Local. The common law considers crimes as altogether local, cognizable and punishable exclusively in the country where they are committed. No other nation, therefore, has any right to punish them, or is under any obligation to take notice of, or to enforce any judgment rendered in such cases by the tribunal having authority to hold jurisdiction within the territory where they are committed. Story Conflict of Laws, sec. 620; The Antelope, 10 Wheat. 123; Warrender v. Warrender, 9 Bligh, 119; Ogden v. Folliott, 3 T. R. 733. Crimes are in their nature local, and the jurisdiction of crimes is local. Rafael v. Verelest, 2 Wm. Bl. 1058. The lex loci must needs govern all criminal jurisdiction, from the nature of the thing and the purpose of that jurisdiction. Lord Brougham, in Warrender v. Warrender, supra. All persons within the state, whether residents or aliens, are amenable to the penal laws thereof, and liable to be punished for any infraction of such laws. 1 Whart. Crim. L. (8th ed.), sec. 282. "Whoever,” says Berner, in his authoritative work on the territorial bounds of penal jurisdiction, "enters into our territory, juridically binds himself to submit to the laws of this territory." Id., sec. 281; United States v. Wiltberger, 5 Wheat. 97; Reg. v. McCafferty, 10 Cox C. C. 603; State v. Doxtater, 47 Wis. 283; Whart. Conflict of Laws, secs. 853, 854. 2. Stolen Property Brought into State.-In England it was early established, that when goods were stolen in one country and brought by the thief into another, the latter had no jurisdiction to punish the offender. Butler's case, 13 Co. 55; Rex v. Prowes, 1 Moo. C. C. 349; Reg. v. Debruiel, 11 Cox C. C. 207; Regina v. Madge, 9 Car. & P. 29. In Reg. v. Debruiel, the defendant was indicted in England for robbing a house in Guernsey and bringing the property to England. Byles, J., speaking for the court, said, "that the case being new, he had taken the opinion of the learned baron in the other court, who agreed with him that the prisoner could not be con victed either of larceny or of receiving. The island of Guernsey was not a part of the United Kingdom, and a larceny committed therein would be in the same position here as if it had been committed in France. Now, clearly, a larceny committed in France could not be taken cognizance of in this country." In several of the United States such jurisdiction is held not to exist unless conferred by statute. People v. Gardner, 2 Johns. 477; People v. Schenck, Id. 479; State v. Le Blanch, 2 Vroom, 82; Simmons v. Com., 5 Binn. 619; State v. Reonnals, 14 La. Ann. 278. In other states this jurisdiction is held to exist as between the several United States, independent of any statute. 1 Whart. Crim. L. (8th ed.), sec. 291, and cases there cited. Statutes similar to subdivision two of section twenty-seven have been adopted in a number of the United States, and such enactments are held to be within the constitutional power of each state. People v. Burke, 11 Wend. 129; La Vaul v. State, 40 Ala. 44; Hemmaker v. State, 12 Mo. 453; State v. Williams, 35 Id. 229; McFarland v. State, 4 Kan. 68; State v. Seay, 3 Stew. 123. 3. Crime Committed by Person out of State.-Although the penal laws of every country are in their nature local, yet an offense may be committed in one sovereignty in violation of the laws of another; and if the offender be afterwards found in the latter state, he may be punished according to the laws thereof, and the fact that he owes allegiance to another sovereignty is no bar to the indictment. Story Conflict of Laws, sec. 625, b. See article on "Extraterritorial Crime," 4 Southern Law Review, 676, 690, where the right of a state to punish a person who commits a crime against the laws while out of the state, and subsequently comes within the state, is discussed at length. Also State v. Grady, 34 Conn. 118; Com. v. Smith, 11 Allen, 243; People v. Adams, 3 Denio, 190; S. C. affirmed on appeal, 1 Comst. 173; Com. v. Macloon, 101 Mass. 1. See sec. 778, n. TITLE II. OF PARTIES TO CRIME. SECTION 30. Classification of parties to crime. 31. Who are principals. 32. Who are accessories. 33. Punishment of accessories. 30. The parties to crimes are classified as: 1. Principals; and, 2. Accessories. 1. Parties to Crime.-At the common law, persons engaged in the commission of crime were chargeable either as principals in the first degree, principals in the second degree, or as accessories before or after the fact. 4 Bl. Com. 34, 35; 1 Chit. Crim. L. 256. 2. Principals. See sec. 31, n. 1. |