doctrine extended, that if A. shoots at B.'s poultry, and by accident kills a man, if his intention be to steal the poultry, he will be guilty of murder. The act, viz., the shooting, is willed, and the intention is criminal (and felonious); therefore, the essentials of a crime are furnished, and the result determines what the crime is. This is not the only respect in which the gravity and nature of the crime are determined by circumstances over which he has not control. Thus if B. receives a blow from A., and, through the unskillful treatment of the wound by the surgeon, dies, A. will be guilty of manslaughter. The intention is, then,

not the sole gauge of criminal liability.

Though a mere intention is not punishable, an attempt to commit a crime is itself a crime, and therefore the subject of punishment. That which the law wishes to discover is the intention, and an attempt equally with a completion of the offense will be evidence of this. What is sufficient to constitute an attempt? An attempt may be said to be the doing of any of the acts which must be done in succession before the desired object can be accomplished; or rather, with the limitation that the attempt must be an act directly approximating to the commission of the offense. Thus, procuring a die for coining, was held an act in furtherance of the criminal purpose, sufficiently proximate to the of fense; (y) but not so the buying a box of matches for setting a stack of corn on fire.(z) But the act must have been such that, if no interruption had taken place, the principal offense would have been successfully committed; so that if a person puts his hand into a pocket with intent to steal what is there, and the pocket is empty, he can not be convicted of an attempt to steal.(a)

Every attempt to commit a crime is itself an indictable misdemeanor at common law. In some cases, it is specially provided that it shall amount to a felony, e. g., attempt to murder.(6)

(y) R. v. Roberts, 25 L. J. (M. C.) 17.

(2) R. v. Taylor, 1. F. & F. 511.

(a) R. v. Collins, 33 L. J. (M. C.) 177.

(b) 24 and 25 Vict. c. 100, 88 11-15.

If on the trial of a person charged with felony or misde meanor, the jury do not think that the offense was completed, but, nevertheless, are of the opinion that an attempt was made, they may express this in their verdict. The prisoner is then dealt with as if he had been convicted on an indictment for the attempt. But, of course, he is not liable to be prosecuted afterward for the attempt.(c) (1)

As a rule, attempts are punished less severely than the corresponding consummate crimes, though the mischief may be as great in the one case as the other. It is with a view to cases in which the complete offense is more mischievous that the distinction is made, so as to give the person a locus penitentiæ before the consummation. It may be noticed that this consummation is prevented sometimes by the penitence of the party, sometimes by extrinsic causes.(d)

(d) Austin, 1098.

(c) 14 and 15 Vict. c. 100, 3 9. (1) The same in Iowa, if the attempt is punishable. Rev. Stat. 1873, p. 689, 4465; Ohio, 74 Ohio L. 352; Kentucky, Crim. Code, § 263.

CHAPTER IV.

PERSONS CAPABLE OF COMMITTING CRIMES.

EVERY man must be presumed to be responsible for his acts until the contrary is clearly shown. If an act ordinarily falling within the scope of the criminal law be committed, the law presumes that it was done willfully and with malicious intent. Therefore it lies on the accused to rebut this

presumption.

There are certain exemptions from criminal responsibility, or rather, under certain circumstances, acts which would otherwise be criminal, on some special ground are not deemed so. The foregoing examination of the essential elements of crime enables us to determine what is the nature of these exceptions; inasmuch as they are founded, as a rule, on the absence of one of those essentials. In one or two instances, however, other considerations, either of policy or well-advised lenity, are entertained, e. g., in the case of crimes committed by ambassadors.

The several instances of irresponsibility may be reduced to the following classes:

1. Absence of criminal intention or malice, includingInsanity; infancy; ignorance (mistake).

2. Absence of will, i. e., the act is purely involuntaryMisfortune, etc.; physical compulsion.

3. Instant and well-grounded fear, stronger than the fear naturally inspired by the law (e)

Fear of excessive unlawful harm; coercion of married

women.

In each of these cases (1-3) the fear of punishment is not calculated to act upon the person so as to deter him, or to deter others by making him an example; therefore the punishment would be inoperative, and worse than useless. 4. When an act, under ordinary circumstances criminal,

(e) Austin, 1092, etc.

is denuded of that character, inasmuch as it is directly authorized by the law

In pursuance of legal duty, e. g., the sheriff hanging a

criminal.

In pursuance of legal right, e. g., slaying in self-defense. Here, as in the first class, there is no criminal intention. Each of these grounds of exemption must now be dealt with.

Insanity. With regard to no subject in criminal law is there so much obscurity and uncertainty as on the question of the responsibility or irresponsibility of a prisoner when the state of his mind at the time of the commission of the act is the point at issue. It has often been asserted, and not without a considerable degree of truth, that the acquittal or conviction of a prisoner, when insanity is alleged, is more or less a matter of chance. The subject is one on which the views taken by medical men differ most widely from those taken by lawyers; and as the former are generally the most important witnesses in cases of alleged insanity, the confusion is by no means diminished.(f)

Two classes of mental alienation are usually recognized: 1. Dementia naturalis, or a nativitate-in other words, idiocy, or continuous weakness of mind 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, in the narrower signification. 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 (usually termed madness) or temporary (the object of it being afflicted with his disorder at

(f) There is great difference of opinion as to the cause of the uncertainty; the lawyers asserting that it is owing to the fanciful theories of medical men, who never fail to find insanity when they earnestly look for it, the latter protesting that it is owing to the unjust and absurd criterion of responsibility which is sanctioned by the law"Maudsley's Responsibility in Mental Disease (1874), 101.

certain periods only, with lucid intervals), which is usually denominated lunacy.(g)

Three stages in the history of the law of insanity may be discerned. The first, outrageous as it was, may be illustrated by the following dictum of an English judge: A man who is to be exempted from punishment "must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast."(h) The second stage regarded as the test of responsibility the power of distinguishing right from wrong in the abstract.() The third stage, unhappily, is that in which we live; though common sense may soon inaugurate a fourth. The existing state of doctrines dates from the trial of McNaughten, in the year 1843.(k)

McNaughten's case.-Certain questions were propounded by the Ilouse of Lords to the judges. The substance of their answers was to the following effect: "To establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring 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.(1)

(9) v. Bac. Abr. Idiots. As to dementia affectata, or drunkenness, v.

p. 27.

(h) R. v. Arnold, 16 St. Tr. 764.

(i) R. v. Bellingham, Coll. 636.

(k) 10 Cl. & Fin. 200; 1 C. & K. 130.

(1) Cf. Alison's Principles of Criminal Law of Scotland, pp. 645, 654, "The insanity must have been of such a kind as entirely to deprive the prisoner of the use of reason, as applied to the act in question, and of the knowledge that he was doing wrong in committing it."

(1) The medical profession is concerned with insanity as a disease, and the tendency is to regard it as purely physical-as a disease, injury, or defect of the brain. The law is concerned with insanity as it affects the responsibility of a person for his acts, and regards it as a