mediately withdrawn.1 The law as to venue may be, therefore, retrospectively changed, and so as to the mode of challenging jurors, provided no substantial injustice is inflicted. The rules of evidence, as is elsewhere seen," may be intermediately changed, provided that the effect is not to materially impair the defendant's rights. Hence a statute enlarging the competency of witnesses acts retrospectively in criminal cases, and so of a statute making certain facts prima facie proof; and of a statute making it the duty of the defendant, in liquor cases, to prove a license. But a statute making certain evidence conclusive proof of guilt is in any of the penalty. See Caldwell v. State, 55 Ala. 133, 1876. 1 Com. v. Hall, 97 Mass. 570, 1867; but see Com. v. Holley, 3 Gray, 458, 1855, contra. 2 Whart. Cr. Pl. & Pr. 2 602; Gut State, 9 Wall. 35, 1869; Cook v. U. S., 138 U. S. 157, 1890. 105, 1889; State v. Welch, (Vt.) 25 Atl. An alteration in the constitution of the Supreme Court, pending an appeal or writ of error, is not ex post facto. State v. Jackson, 105 Mo. 196, 1891; State v. Bulling, 105 Mo. 204, 1891; Duncan v. State, 14 Sup. Ct. Rep. 570, 1894. But one that takes away the -power of the jury to judge of the law of the case is such. Marion v. State, 20 Nebr. 233; s. c. 57 Am. Rep. 825, 1886. An act requiring insanity to be set up by special plea is not ex post facto. Perry v. State, 87 Ala. 30, 1888. Nor is it to increase costs; Campbell v. Manderscheid, (Iowa) 39 N. W. 92, 1888; Farley v. Gerkeker, (Iowa) 43 N. W. 279, 1889; unless the costs in criminal law are to be considered part 3 South v. State, 86 Ala. 617, 1889; Mathis v. State, (Fla.) 12 So. Rep. 681, 1893. The same is true of a statute reducing the number of grand jurors. State v. Ah Jim, 9 Mont. 167, 1890. State v. Doherty, 60 Me. 501, 1872. 5 Whart. Com. Am. Law, ?? 474, 494; Stokes v. People, 53 N. Y. 164, 1873; Mrous v. State, 31 Tex. Cr. 597, 1893. 6 See Seip v. Storch, 52 Pa. 210, 1866; Journeay v. Gibson, 56 Pa. 57, 1867; Richter v. Cummings, 60 Pa. 441, 1869. But see Calder v. Bull, 3 Dall. 386-390, 1798. 7 Hopt v. Utah, 110 U. S. 574, 1883; Sutton v. Fox, 55 Wis. 531, 1882; Whart. Cr. Ev. ? 360 a. 8 Com. v. Wallace, 7 Gray, 222, 1856; State v. Thomas, 47 Conn. 546, 1880; though see State v. Beswick, 13 R. I. 211, 1881; People v. Lyon, 27 Hun, 180, 1882. 9 Com. v. Kelly, 10 Cush. 69, 1852. view unconstitutional,' and it has so been held, also, so far as concerns antecedent cases, of a statute doing away with the necessity of corroborating an accomplice.2 State may relieve from punishability tion or § 31 a. On either of the theories of punishability which have been heretofore stated, it is within the prerogative of the State, through its proper organs, to limit, to suspend, or to prohibit prosecutions, and to relieve from the penalties by limita imposed on crime. In exercise of this prerogative, it is pardon. ordinarily made essential to the prosecution of an indictment that it should be found by a grand jury, and that the defendant should be entitled to meet the witnesses produced against him face to face. By statutes of limitation and pardons, which are considered more fully in another volume, the State prescribes that prosecutions must be brought within a limited time after the commission of the offence, or that the offender is not for the particular offence to be subject to prosecution.3 Civil and criminal remedies may be concurrent. 4 § 31 b. As is elsewhere seen, the English rule is that the policy of the law precludes a person from seeking civil redress for a felonious injury to himself, if he has failed in his duty in endeavoring to bring the felon to justice. Whether this rule holds in this country has been much doubted;5 and neither here nor in England has it been held to apply to misdemeanors. In any view, the institution of a civil suit for redress for an injury is no bar to a criminal prosecution for the same offence, though in adjusting sentence in the criminal prosecution the courts take into consideration payments made or amends rendered by the defendant in the civil proceedings. A prosecution for nuisance, for instance, as an offence against the public, may proceed concurrently with a suit by an individual for special damage incurred by the nuisance, supposing such special damage to have been sustained; and a civil suit and a criminal15 L. T. (N. S.) 390. Leeman, 9 Q. B. 371. 1 Whart. Com. Am. Law, 22 494, 596, 1856; see 5 Crim. Law Mag. 325. 9. But see Keir v. People v. Stevens, 13 Wend. 341, 2 State v. Bond, 4 Jones, L. (N. C.) 1835; Whart. Cr. Pl. & Pr. § 454, and 3 Whart. Cr. Pl. & Pr. 22 316, 500. * Whart. Cr. Pl. & Pr. 453. But see Wells v. Abraham, L. R. 7 Q. B. 554, 1872. 5 See Nowlan v. Griffin, 68 Me. 235, 1878, and authorities there cited. Ibid. Fissington v. Hutchinson, cases cited. 8 Jones v. Clay, 1 B. & P. 191, 1798; Benjamin v. Storr, 9 L. R. C. P. 400, 1874; U. S. v. New Bedford Bridge, 1 Woodb. & M. 401, 1846; Abbott v. Mills, 3 Vt. 521, 1831; Portland v. Richardson, 54 Me. 46, 1866; Francis v. Schoellkopf, 53 N. Y. 152, 1873. prosecution for the same assault and battery may also proceed concurrently. The same distinction has been applied mutatis mutandis in cases of perjury. The courts, however, by granting continuances, and ultimately shaping judgment, will endeavor to prevent an undue cumulation of process from working injustice. Nor will a civil suit be permitted to proceed when it is in any way tainted by an understanding that a criminal prosecution shall be compounded or stifled.* Infra, & 618; Jones v. Clay, 1 B. & v. Lambright, 5 Ohio Cir. Ct. 433, P. 191, 1798. 3 Infra, 618. See R. v. Willmer, 15 Q. B. 50, 1850: Dudley Bank Co. v. Spittle, 1 Johns. & H. 14, 1860; Peddell v. Rutter, 8 C. & P. 337, 1837. Whart, on Cont. ?? 483 et seq. For instances of the cumulation of civil and criminal actions for the same wrong, see Whart. Cr. Pl. & Pr. 453; In re Lezynsky, 16 Blatchf. 9, 1879; Foster v. Com., 8 W. & S. 77, 1844; State v. Stein, 1 Rich. 189, 1845; Drake v. Lowell, 13 Metc. 292, 1847; Thayer v. Boyle, 30 Me. 475, 1849; Gordon v. Hostetter, 37 N. Y. 99, 1867; Welch. Jugenheimer, 56 Iowa, 11; s. c. 41 Am. Rep. 77, 1881; Quimby v. Blackey, 63 N. H. 77, 1884; R. R. 1891; People v. Walsen, 17 Colo. 170, 1892; Knox Co. v. Hunolt, 110 Mo. 67, 1892; Heller v. Alvarado, 1 Tex. Civ. App. 409, 1892; Austin v. Carswell, 67 Hun, 579, 1893; State v. Schoonover, 35 N. E. Rep. 119-121, 1893. In Higgins v. Minaghan, 76 Wis. 298, 1890, it was tacitly assumed that such was the rule. See Monaghan v. State, 77 Wis. 643, 1890. But if the statute creating the offence provides an adequate remedy by fine as well as imprisonment, a civil action will not lie. Wayne Co. v. Bressler, 32 Nebr. 818, 1891. This, however, can only be true of actions for infringement of police statutes, unattended with any special injury to private persons. CHAPTER III. FITNESS OF OFFENDER TO COMMIT OFFENCE. I. PERSONS NON COMPOTES MENTIS. Old English rulings on insanity no longer authoritative, ? 32. Irresponsibility to be determined by exclusion rather than by inclusion, ? 33. 1. Incapacity to distinguish Right from Wrong. Party incapable of determining as to right and wrong is irresponsible, & 34. 'Wrong" means moral wrong, 36. 2. Insane Delusion. Delusion excuses act done bonâ fide and without malice under its effect, ? 37. Rule applies to all bond fide erro neous non-negligent beliefs, Actual danger not necessary, €39. crime not its product, & 41. Delusion to exculpate must be non-negligent, 42. 3. Irresistible Impulse. "Irresistible impulse" to be distinguished from "moral insanity" and from passion, 43. Insane irresistible impulse a defence, 44. Caution requisite as to this defence, & 45. 4. Moral Insanity. Moral insanity is no defence, ? 46. 5. Mental Disturbance as lowering Grade of Guilt. Mental disturbance admissible to disprove malice, 47. 6. Intoxication. Persons under insanity produced by intoxication may be irresponsible, 48. Voluntary intoxication does not exculpate, ? 49. 51. Intoxication admissible to determine condition of mind, Especially as to intent to take life, & 52. And so as to other questions of intent, & 53. But not so as to reduce responsi bility when malice is shown, 54. "Voluntary" is conditioned by temperament, 2 55. 7. Practice in Cases of Insanity. Witnesses may give opinion based on observation, ? 56. Defence may be taken by friends of accused, 57. In some jurisdictions defence must be special, % 57 a. Issue to be tried by jury, 58. Insanity after conviction defers execution, 59. Burden is on party disputing sanity, 60. Conflicting theories as to amount of evidence requisite to prove insanity, § 61. Insanity to be inferred from conduct, 63. And from physical peculiarities, 2 64. And from hereditary tendency, 265. 8. Other forms of Unconsciousness. Unconsciousness may be a defence, % 66. II. INFANTS. Infants under seven not penally responsible, 67. Between seven and fourteen infant capax doli may be convicted, 68. Boy under fourteen presumed incapable of rape, ₹ 69. Infant's liability in special cases, 870. Infant liable for false representa tions as to age, ? 71. When infant may appear by attorney, 72. Age is inferable from circumstances, 73. Confession of infants admissible, 874. III. FEME COVERTS. Indictment not bad on its face when against wife alone, ? 75. And so as to indictments against husband and wife jointly, 76. Wife's misnomer must be pleaded in abatement, 77. Wife presumed to be acting under her husband's coercion when co-operating in crime, & 78. Presumption is rebuttable, 79. For offences distinctively imputable to husband he is primarily indictable, & 80. For offences distinctively imputable to wife she is primarily indictable, 81. In riot and conspiracy there must be others besides husband and wife, 82. Distinctive view as to accessaries, 2 83. IV. IGNORANT PERSONS. Ignorance of law no defence to an indictment for a violation of law, 84. But on indictment for negligence in application of law nonspecialist not chargeable with ignorance of specialty, 85. Mistake of law admissible to negative evil intent, & 85 a. So of subsumption of facts in law 285 b. Statutes not operative until published, 86. Ignorance or mistake of fact ad missible to negative intent, 2 87. But when scienter is irrelevant, ignorance or mistake of fact no defence, ? 88. And so where the fact is one of V. CORPORATIONS. Corporations indictable for breach of duty, ? 91. Penalty is fine and distress, ? 92. Quasi corporations indictable for breach of duty, 93. VI. PERSONS UNDER COMPULSION. Persons under compulsion irresponsible, 94. But servant or child cannot de fend on this ground, ? 94 a. VII. PERSONS UNDER NECESSITY. Necessity a defence when life or other high interests are imperilled, ? 95. Culpability does not preclude the defence, 96. Distinction between necessity and self-defence, & 97. Not necessary to have had prior Objects for which self-defence Defence of property justifiable, But not violent defence of honor, Danger must be immediate, and |