CRIMINAL LAWS. 



533 



fs not guilty of any offence. If he rides him furious- 

 ly in a street where there may be danger, and the 

 like mischief happens, he is guilty of manslaughter 

 at least. If he rides him furiously into a crowd, 

 either from wantonness or thoughtlessness, and the 

 like accident happens, it will be murder. If a per- 

 son in England, duly qualified by law to kill game, 

 accidentally kills another while so doing, he is guilty 

 of no offence. If a person be prohibited by statute 

 from killing game, and the like accident happens by 

 his shooting, lie is not answerable in any other man- 

 ner than a person duly qualified. This last case 

 illustrates the distinction as to cases of malum pro- 

 h'Mtum. On the other hand, if a person, shooting 

 fit poultry belonging to another person, by accident 

 kills a man, if his intention was to steal the poul- 

 try, it will be murder, by reason of the felonious in- 

 tent : if his intention was not to steal, but it was an 

 act of mere wantonness, it will be manslaughter 

 only. In these last cases, the act is malum in se. 



In respect to injuries committed through igno- 

 rance or mistake. This may arise when a man, in- 

 tending to do a lawful act, does what is unlawful. 

 An illustration commonly put is that of a man intend- 

 ing to kill a thief or housebreaker, in his own house, 

 who, by mistake, kills one of his own family. In 

 this case, if he acted under circumstances of reason- 

 able belief that the party killed was the thief or 

 housebreaker, there is no ground to impute criminal- 

 ity to liim. His conduct was founded in a mistake of 

 fact, that is, of the person ; for it is sometimes law- 

 ful, by the common law, to kill a housebreaker found 

 in your house. But a mistake, or ignorance of law 

 will not justify an act of the like nature. If a per- 

 son supposes he has a right to kill a trespasser or 

 outlaw, or excommunicated person, and he does so, 

 iie is guilty of murder. 



In respect to crimes committed by compulsion or 

 force. The common law recognizes but few cases in 

 which the authority or command of a superior fur- 

 nishes any excuse for the commission of an offence. 

 In the case of children or servants, the commands of 

 the master or parent furnish no excuse. When a 

 wife commits a crime in company with her husband, 

 she is deemed, by the benignity of the law of the Unit- 

 ed States, to act under compulsion, and therefore she 

 is excused in all cases except murder, manslaughter, 

 and treason. These exceptions are founded upon the 

 peculiar danger and atrocity of the offences, and the 

 public policy of discouraging every motive to com- 

 mit them. Where the wife commits the offence 

 alone, without the company or compulsion of her 

 husband, she is personally responsible in the same 

 manner as if she were unmarried. There are other 

 species of compulsion recognized in the common 

 law, which may excuse the commission of offences. 

 Thus where a person commits an offence in con- 

 sequence of threats or menace, which induce a fear 

 of death or other bodily harm. This is called 

 duress per minus. But the fear which compels a 

 man to do an illegal act must be just and well ground- 

 ed, such as may intimidate a firm and resolute man, 

 And not merely of such a nature as may operate upon 

 the timid and irresolute, otherwise it will constitute 

 no excuse. Thus, in time of war or rel)ellion, a 

 man may be excused for doing treasonable acts, if 

 they are caused by the compulsion of the enemy or 

 rebels. But the compulsion must not be a mere threat 

 to do injury to property, nor even slight injury to 

 the person, but a just fear either of death or of great 

 bodily injury ; and even in such case, it is the duty of 

 the party to avoid doing such acts as soon as he 

 safely may, by escape or otherwise ; for if he does 

 not, lie will be liable to punishment as a volunteer. 

 Hut even this excuse is not allowed in all cases, but 



seems principally confined to crimes positively creat- 

 ed by society ; for no man can justify or excuse him- 

 self for murdering an innocent person, under the 

 pretence of fear or necessity, though he certainly 

 may kill another in necessary self-deience. Another 

 case of compulsion or necessity often occurs in the 

 reasoning of speculative writers, whether a person 

 in extreme want of food is excusable for stealing to 

 satisfy his hunger. Whatever may be the doctrine 

 of foreign jurists, or the opinion of publicists, it is cer- 

 tain tliat no such excuse is now admitted in the com- 

 mon law. Ifthe offence should be committed under 

 circumstances of extraordinary suffering, the case 

 would rarely be brought before any tribunal of jus- 

 tice ; and if it should be, the power of pardon in the 

 government, and the humanity of the court itself, 

 would either annul or mitigate the punishment. 

 There is another case often put, where two persons 

 at sea are shipwrecked, and get on a single plank, 

 and it cannot support both, but both must be drown- 

 ed unless one is displaced : what is then to be done ? 

 In such a case, the law of self-preservation has been 

 supposed to justify either party in a forcible dispos- 

 session of the other. The common law seems to 

 recognize this principle, and, in such a deplorable 

 calamity, imputes no blame to the survivor. 



We now proceed to notice another important dis- 

 tinction, which the common law acts upon in relation 

 to crimes. It is the distinction in guilt and punislj- 

 ment which is made between principals and acces- 

 sories. Persons are called principals in the fir.it 

 degree, who are the actors or perpetrators of the 

 offence. Persons who are present, aiding and abet- 

 ting the perpetrator, are called principals in the 

 second degree. This presence may be either in fact, 

 as where the parties are immediately standing by, or 

 are within sight and hearing ; or constructive, as 

 when the party, though not within sight or hearing, 

 is on the watch at a convenient distance, ready to 

 assist, and near enough to do so, if required. There 

 are cases, too, in which a person may be the princi- 

 pal in construction of law, although he is absent, and 

 the tact is done through the instrumentality of another; 

 as, in case of murder by poisoning, a nran may be 

 the principal felon by preparing or laying the poison, 

 with an intention that it should be taken, or by em- 

 ploying an innocent person to administer it, under 

 false pretences, although he is not personally pre- 

 sent when it is taken or administered. Many cases 

 of the like nature may be easily put. An accessory 

 is he who is not the cliief actor in the ofience, nor 

 present at its perpetration, in the sense above stated, 

 but who is in some manner concerned in it, either 

 before or after the fact is committed. If he procures, 

 counsels, abets, or commands the crime, and is absent 

 at its commission, ILi is deemed an accessory before 

 the fact. If, without any such participation in it, 

 he knows that the crime has been committed, sud 

 afterwards relieves, assists, comforts, or receives the 

 offender, he is deemed an accessory after the fact. 

 Thus, if he aids the offender to escape, or rescues 

 him from arrest, or conceals or supports him, he is 

 deemed an accessory after the fact ; so if he buys or 

 receives stolen goods, knowing them to be stolen. 

 There are certain classes of offences at the common 

 law which admit of no accessories. Thus, in treason, 

 all the parties concerned are deemed principals prop- 

 ter odium delicti; and in offences which are under 

 the degree of felony, and in trespasses, all persons 

 concerned are deemed principals for an opposite rea- 

 son, because the law will not condescend, in petty 

 crimes, to ascertain the different degrees of guilt. 

 In all other oficnces, that is, in all except the highest 

 and the lowest, there may be, technically speaking) 

 accessories. It follows as a maxim, that in sura 



