A TREATISE ON THE LAW OF EVIDENCE. PART V. OF EVIDENCE IN PROSECUTIONS FOR CRIMES AT COMMON LAW. GENERAL PRINCIPLES. § 1. A crime is defined to be an act, committed or omitted, in violation of a public law, either forbidding or commanding it.1 In the common law, crimes are divided into three classes; treasons, felonies, and misdemeanors. All public wrongs below the degree of felony, are classed as misdemeanors, and may be the subject of indictment, either at common law, or by statute. Misdemeanors, again, are divided into two classes; mala in se, and mala prohibita. In the former class is comprised whatever mischievously affects the person or property of another, or openly outrages decency, or disturbs public order, or is injurious to public morals, or is a breach of official public duty, when done wilfully or corruptly. The latter comprises the doing any matter of public grievance, forbidden by statute, or the omitting any matter of public convenience commanded by statute, but not otherwise wrong; 1 4 Bl. Comm. 5. whether it be or be not expressly made indictable, or visited with any specific penalty, by the statute.1 § 2. The attempt to commit a crime, though the crime be but a misdemeanor, is itself a misdemeanor. And to constitute such attempt, there must be an intent that the crime should be committed by some one, and an act done pursuant to that intent. Quidquid criminis consummationi deest, conatum constituit. Thus, to incite another to steal, or to persuade a public officer to receive a bribe, are alike misdemeanors. So, to possess instruments for coining false money, with intent to use them.5 So, to send threatening letters;6 to challenge another to fight, whether with fists or weapons; 7 to solicit another to commit adultery.8 § 3. In regard to the persons chargeable with crimes, it is proper, in the first place, to consider the evidence of criminal capacity, or the degree of reason and understanding which is sufficient to render a person liable to the penal consequences of his actions. Persons deficient in this respect are of two classes, infants, and persons non compotes mentis, or insane. To these may be added the class of persons deficient in will, that is, acting under the constraint of superior force or the power of others, and not of their own free will or accord; such 1 1 Russ. on Crim. 45, 46, (3d edit.); Rex v. Sainsbury, 4 T. R. 457 ; 2 Inst. 163. 2 1 Russ. on Crim. 46; Regina v. Meredith, 8 C. & P. 589; Rex v. Higgins, 2 East, 5, 17-21; Rex v. Kinnersley, 1 Stra. 193, 196. In some of the United States, the attempt to commit a crime is punishable by statute. And see Commonwealth v. Harrington, 3 Pick. 26. 3 Evertsen De Jonge, De delictis cont. Rempub. Vol. 2, p. 217. But there must be an act done; for, Cogitationis poenam nemo patitur. Dig. lib. 48, tit. 19, l. 18. 4 Rex v. Higgins, supra; Rex v. Vaughan, 4 Burr. 2494. 5 Rex v. Sutton, 2 Stra. 1074; Murray's case, 3 Shepl. 100. 6 U. States v. Ravara, 2 Dall. 297. 7 Commonwealth v. Whitehead, 2 Law Reporter, 148; The State v. Farrier, 1 Hawks, 487; Rex v. Phillips, 6 East, 464. 8 The State v. Avery, 7 Conn. 266. as femes covert, acting in the presence or by coercion of their husbands, persons under duress per minas, and some others. For in such cases there is no liberty of the will; and without the consent of the will, there is, says Lord Hale, no just reason to incur the penalty or sanction of a law instituted for the punishment of crimes or offences.1 § 4. With respect to infants, the period of infancy is divided by the law into three stages. The first is the period from the birth until seven years of age; during which, an infant is conclusively presumed incapable of committing any crime whatever. The second is the period from seven until fourteen. During this period, the presumption continues, but is no longer conclusive, and grows gradually weaker, as the age advances towards fourteen. At any stage of this period, the presumption of incapacity may be removed by evidence, showing intelligence and malice; for malitia supplet ætatem; but the evidence of that malice which is to supply age, ought to be strong and clear, beyond all reasonable doubt.2 There are, however, some exceptions to the rule governing this period; for a female, under ten years of age, is conclusively presumed incapable of giving consent to an act of criminal sexual intercourse with herself; and a male, under fourteen, is conclusively presumed incapable of committing a rape.3 The third commences at fourteen; the presumption of incapacity arising from youth being then entirely gone, and all persons of that age and upwards being presumed, in point of 1 1 Hal. P. C. 14, 15. 2 4 Bl. Comm. 22, 23. And see The State v. Guild, 5 Halst. 163; Rex v. Owen, 4 C. & P. 236. In these cases, the prosecutor must prove two points of fact; first, that the prisoner committed the act charged; and, secondly, that he had at that time a guilty knowledge that he was doing wrong. Ibid. Per Littledale, J. 3 4 Bl. Comm. 212; Regina v. Philips, 8 C. & P. 736; Regina v. Jordan, 9 C. & P. 118; Regina v. Brimilow, Id. 366. But it seems that he may be guilty of an assault with intent to commit a rape; for an intent to do an act, does not necessarily imply an ability to accomplish it. Commonwealth v. Green, 2 Pick. 380. See contra, Rex v. Eldershaw, 3 C. & P. 396; Regina v. Philips, supra. |