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mediately withdrawn.' The law as to venue may be, therefore, retrospectively changed, and so as to the made 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;8 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

105, 1889; State v. Welch, (Vt.) 25 Atl. of the penalty. See Caldwell v. State, Rep. 900, 1892; Duncan v. State, 14 55 Ala. 133, 1876. Sup. Ct. Rep. 570, 1894. Nor is one 1 Com. v. Hall, 97 Mass. 570, 1867 ; that affects the mode of procedure but see Com. v. Holley, 3 Gray, 458, only. Sage v. State, 127 Ind. 15, 1855, contra. 1891. In one case it has been held 2 Whart. Cr. Pl. & Pr. 2602; Gut that a statute giving power to proceed v. State, 9 Wall. 35, 1869; Cook v. by information, in addition to the U. S., 138 U. S. 157, 1890. former procedure by indictment, was 3 South v. State, 86 Ala. 617, 1889; er post facto. McCarty v. State, 1 Mathis v. State, (Fla.) 12 So. Rep. 681, Wash. St. 377, 1890; but this has been 1893. The same is true of a statute tacitly overruled. Lybarger v. State, reducing the number of grand jurors. 2 Wash. St. 552, 1891 ; State v. Hoyt, State v. Ah Jim, 9 Mont. 167, 1890. 4 Wash. St. 818, 1892; In re Wright, 4 State v. Doherty, 60 Me. 501, (Wyo.) 27 Pac. Rep. 565, 1891. 1872.

An alteration in the constitution of 5 Whart. Com. Am. Law, 3% 474, the Supreme Court, pending an appeal 494; Stokes v. People, 53 N. Y. 164, or writ of error, is not er post facto, 1873; Mrous v. State, 31 Tex. Cr. 597, State v. Jackson, 105 Mo. 196, 1891; 1893. State v. Bulling, 105 Mo. 204, 1891 ; 6 See Seip v. Storch, 52 Pa. 210, Duncan v. State, 14 Sup. Ct. Rep. 570, 1866; Journeay v. Gibson, 56 Pa. 1894. But one that takes away the 57, 1867; Richter v. Cummings, 60 -power of the jury to judge of the law Pa. 411, 1869. But see Calder v. Bull, of the case is such. Marion v. State, 3 Dall. 386–390, 1798. 20 Nebr. 233; s. c. 57 Am. Rep. 825, ? Hopt v. Utah, 110 U.S. 574, 1883; 1886.

Sutton v. Fox, 55 Wis. 531, 1882; An act requiring insanity to be set Whart. Cr. Ev. 2 360 a. up by special plea is not ex post facto. & Com. v. Wallace, 7 Gray, 222, Perry v. State, 87 Ala. 30, 1888. Nor 1856; State v. Thomas, 47 Conn. 546, is it to increase costs; Campbell v. 1880; though see State v. Beswick, 13 Manderscheid, (Iowa) 39 N. W. 92, R. I. 211, 1881 ; People v. Lyon, 27 1883; Farley v. Gerkeker, (Iowa) 43 Hun, 180, 1882. N. W. 279, 1889; unless the costs in 9 Com. v. Kelly, 10 Cush. 69, 1852. criminal law are to be considered part

State may

from pun

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.? § 31 a. On either of the theories of punishability which have

been heretofore stated, it is within the prerogative of the relieve State, through its proper organs, to limit, to suspend, or ishability to prohibit prosecutions, and to relieve from the penalties by limitation or

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.” § 31 b. As is elsewhere seen, the English rule is that the policy

of the law precludes a person from seeking civil redress Civil and criminal for a felonious injury to himself, if he has failed in his memedies duty in endeavoring to bring the felon to justice. Whether

this rule holds in this country has been much doubted ;'

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 ;8 and a civil suit and a criminal.

1 Whart. Com. Am. Law, X2 494, 15 L. T. (N. S.) 390. But see Keir v. 596, 1856; see 5 Crim. Law Mag. Leeman, 9 Q. B. 371. 325.

People v. Stevens, 13 Wend. 311, ? State v. Bond, 4 Jones, L. (N. C.) 1835; Whart. Cr. Pl. & Pr. & 454, and 9.

cases cited. 3 Whart. Cr. Pl. & Pr. 22 316, 500. & Jones v. Clay, 1 B. & P. 191, 1798;

4 Whart. Cr. Pl. & Pr. $ 453. But Benjamin v. Storr, 9 L. R. C. P. 400, see Wells v. Abraham, L. R. 7 Q. B. 1874; U. S. v. New Bedford Bridge, 554, 1872.

1 Woodb. & M. 401, 1846; Abbott v. 5 See Nowlan v. Griffin, 68 Me. 235, Mills, 3 Vt. 521, 1831 ; Portland v. 1878, and authorities there cited. Richardson, 54 Me. 46, 1866; Francis

Fissington v. Hutchinson, v. Schoellkopf, 53 N. Y. 152, 1873.

concurrent.

7

6 Ibid.

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 stified.

4

2

Infra, 8 618; Jones v. Clay, 1 B. & v. Lambright, 5 Ohio Cir. Ct. 433, P. 191, 1798.

1891 ; People v. Walsen, 17 Colo. 170, Infra, % 1324.

1892; Knox Co. v. Hunolt, 110 Mo. Infra, 618. See R. v. Willmer, 67, 1892; Heller v. Alvarado, 1 Tex. 15 Q. B. 50, 1850: Dudley Bank Co. Civ. App. 409, 1892; Austin v. Carsv. Spittle, 1 Johns. & H. 14, 1860; well, 67 Hun, 579, 1893; State v. Peddell v. Rutter, 8 C. & P. 337, 1837. Schoonover, 35 N. E. Rep. 119-121,

• Whart. on Cont. 22, 483 et seq. For 1893. In Higgins v. Minaghan, 76 instances of the cumulation of civil Wis. 298, 1890, it was tacitly assumed and criminal actions for the same that such was the rule. See Monawrong, see Whart. Cr. Pl. & Pr. & 453; ghan v. State, 77 Wis. 643, 1890. In re Lezynsky, 16 Blatchf. 9, 1879; But if the statute creating the ofFoster v. Com., 8 W. & S. 77, 1844; fence provides an adequate remedy State v. Stein, 1 Rich. 189, 1845; by fine as well as imprisonment, a Drake v. Lowell, 13 Metc. 292, 1847; civil action will not lie. Wayne Co. Thayer v. Boyle, 30 Me. 475, 1849; v. Bressler, 32 Nebr. 818, 1891. This, Gordon v. Hostetter, 37 N. Y.99, 1867; however, can only be true of actions Welch v. Jugenheimer, 56 Iowa, 11; for infringement of police statutes, S. C. 41 Am. Rep. 77, 1881 ; Quimby unattended with any special injury to r. Blackey, 63 N. H. 77, 1884; R. R. 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 in

clusion, & 33. 1. Incapacity to distinguish Right

from Wrong. Party incapable of determining as

to right and wrong is irrespon

sible, & 34. “Wrong” means moral wrong,

2 36. 2. Insane Delusion. Delusion excuses act done bonâ fide and without malice under

its effect, % 37. Rule applies to all bona fide erro

neous non-negligent beliefs,

238.

Actual danger not necessary, ở 39.
Delusion must be mental, 2 40.
Partial insanity no defence to

crime not its product, & 41. Delusion to exculpate must be

non-negligent, % 42. 3. Irresistible Impulse. “Irresistible impulse” to be dis

tinguished from “moral insan

ity" and from passion, 8 43. Insane irresistible impulse a de

fence, & 44. Caution requisite as to this de

fence, % 45. 4. Moral Insanity.

Moral insanity is no defence, % 46. 5. Mental Disturbance as lowering

Grade of Guilt. Mental disturbance admissible to disprove malice, 2 47.

6. Intoxication. Persons under insanity produced

by intoxication may be irre

sponsible, 2 48. Voluntary intoxication does not

exculpate, & 49. Intoxication admissible to deter

mine condition of mind, 8 51. 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, 254. “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, 257 a. Issue to be tried by jury, & 58. Insanity after conviction defers

execution, $59. Burden is on party disputing san

ity, $ 60. Conflicting theories as to amount

of evidence requisite to prove

insanity, 8 61. Insanity to be inferred from con

duct, 2 63. And from physical peculiarities,

8 64. And from hereditary tendency,

& 65. 8. Other forms of Unconsciousness. Unconsciousness may be a de

fence, & 66.

II. INFANTS.

So of subsumption of facts in law Infants under seven not penally

% 85 b. responsible, 8 67.

Statutes not operative until pubBetween seven and fourteen in- lished, 8 86.

fant capax doli may be con- Ignorance or mistake of fact advicted, ? 68.

missible to negative intent, % 87. Boy under fourteen presumed in- But when scienter is irrelevant, capable of rape, & 69.

ignorance or mistake of fact no Infant's liability in special cases, defence, & 88. 70.

And so where the fact is one of Infant liable for false representa- which the defendant ought to tions as to age, % 71.

have been cognizant, % 89. When infant may appear by at- In suits for negligence, party is torney, & 72.

not required to know facts out Age is inferable from circum- of his specialty, & 90. stances, % 73.

V. CORPORATIONS. Confession of infants admissible, Corporations indictable for breach 74.

of duty, &91. III. FEME COVERTS.

Penalty is fine and distress, % 92. Indictment not bad on its face Quasi corporations indictable for when against wife alone, 2 75.

breach of duty, & 93. And so as to indictments against VI. PERSONS UNDER COMPULSION.

husband and wife jointly, % 76. Persons under compulsion irreWife's misnomer must be pleaded sponsible, % 94. in abatement, & 77.

But servant or child cannot deWife presumed to be acting under fend on this ground, % 94 a.

her husband's coercion when VII. PERSONS UNDER NECESSITY. co-operating in crime, & 78.

Necessity a defence when life or Presumption is rebuttable, 2 79.

other high interests are imperFor offences distinctively imputa- illed, 295. ble to husband he is primarily Culpability does not preclude the indictable, $ 80.

defence, & 96. For offences distinctively imputa- Distinction between necessity and

ble to wife she is primarily in- self-defence, 97.
dictable, & 81.

Not necessary to have had prior In riot and conspiracy there must recourse to public authorities,

be others besides husband and 297 a.
wife, & 82.

Objects for which self-defence Distinctive view as to accessaries, may be exerted, & 98.

Flight not necessary to self-deIV. IGNORANT PERSONS.

fence, & 99. Ignorance of law no defence to an Defence of property justifiable,

indictment for a violation of % 100.
law, & 84.

But not violent defence of honor, But on indictment for negligence

% 101. in application of law non- Danger must be immediate, and specialist not chargeable with defence not to exceed attack, ignorance of specialty, & 85.

% 102. Mistake of law admissible to nega

Inference to be drawn from tive evil intent, & 85 a.

weapon, & 103.

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