trine of constructive intent does not apply, however, where a specific intent is necessary to constitute a particular crime. Constructive intent will not supply specific intent.* 44 f. Intent in Cases of Negligence. In certain crimes the criminal act or omission consists in mere neglect to observe proper caution in the performance of an otherwise lawful act or in culpable failure to perform a duty imposed by law or by contract, whereby injury results to the public or to an individual. In such cases the criminal intent consists simply in the state of mind which necessarily accompanies such negligent act or culpable omission. In other words, as it is frequently put, in some cases criminal intent may be supplied by negligence.15 g. Ignorance or Mistake of Law. It is the settled rule that everyone is conclusively presumed to know the law, and that ignorance on the part of the wrong-doer of the law which makes an act criminal is no excuse. This rule was applied even in the extreme case of violation of a statute by a person who was at sea when it was enacted, and when he violated it, and who could not have known of it. Even foreigners coming into a country and ignorantly violating its laws are liable, although the act may not be a crime in their own country. The rule does not apply, however, where a specific intent is essential to a crime and ignorance of the law negatives such intent.47 46 48 h. Ignorance or Mistake of Fact. At common law ignorance or mistake of fact will, as a rule, exempt one from criminal liability, because of want of criminal intent, if the act done would have been lawful if the facts had been as he believed, provided the ignorance or mistake was not voluntary or due to negligence. But this rule does not necessarily apply where the intention is unlawful, for in such case the doctrine of constructive intent may apply; or where the ignorance or mistake is voluntary or the result of negligence, for, as we have seen, negligence may supply the necessary criminal intent.50 Nor does the rule apply where a crime is so defined by statute that some particular independent fact must coexist, and it appears that it was the intention of the der. And it is murder at common law to kill a person unintentionally in committing arson or robbery. 44. See supra, § 89, d. 45. The question of criminal negligence most frequently arises in connection with manslaughter, although it also arises in connection with nuisance, escape, and some other common-law crimes, as well as many statutory crimes. See supra, § 88, b, c. 46. See 12 Cyc. 155; Clark Cr. L. (2d ed.) 80. 47. For example, the specific intent to steal is necessary to larceny, and one cannot commit this crime by taking another's property, where, although by mistake of law, he believes it to be his own. See 12 Cyc. 156; and supra, § 88, b, "Larceny." 48. See 12 Cyc. 156; Clark Cr. L. (2d ed.) 82. 49. See supra, § 89, e; 12 Cyc. 157. 50. See supra, § 89, f; 12 Cyc. 157. legislature that one doing the forbidden act should do it at his peril. In such a case ignorance of the existence of such fact is no excuse. 51 i. Accident or Misfortune. A person is not criminally liable for an accident happening in the performance of a lawful act with due care. 52 j. Justification or Excuse. Although an act ordinarily criminal may be intentionally committed, it may not be a crime because by reason of particular circumstances the law deems it justifiable or excusable. Acts which would otherwise be criminal may be justifiable or excusable if done (1) under public authority; (2) under parental authority; (3) in prevention of crime; (4) in suppressing a riot; (5) in defense of person or property; (6) in making an arrest or preventing an escape; or (7) under duress, coercion, or necessity.53 Questions of justification or excuse usually arise in connection with the right to inflict personal injury or to cause death,54 and they will be fully considered in dealing with particular crimes in the course on Criminal Law. It is only necessary here to state the law as to duress, coercion, and necessity. Duress. When any crime, except murder, is committed, aided, or participated in by two or more persons, and is committed, aided, or participated in by one of them only because during the time of the commission he is compelled to do so by threats by one or more of the others, and reasonable apprehension of instant death or great bodily harm in case he refuses, the threats and apprehension constitute duress, and excuse him. Fear of injury to property, or, it seems, of anything short of death or great bodily harm, will not excuse. It also seems that duress is no excuse for taking life. And it is no excuse for the commission of the crime that it was done under the command of another, at least except in the case of a married woman acting under the command of her husband, as will now be explained.5 55 Married Women.- If a married woman, in the presence of her husband, commits an act which would be a crime under other circumstances, she is generally presumed to have acted under her husband's coercion, and such coercion excuses her act. This presumption, however, may be rebutted by circumstances showing that in fact she was not coerced; and the rule does not apply in 51. Illustrations of this exception are found in the case of various police regulations, as in the case of statutes punishing the sale of adulterated food products, it being sometimes held that ignorance of the adulteration is no defense. See 12 Cyc. 158. 52. If the accident happens in the performance of an unlawful act, the doctrine of constructive intent may 53. Clark Cr. L. (2d ed.) 90. 55. See 12 Cyc. 161; Clark Cr. L (2d ed.) 91, 92. the case of treason, murder, probably robbery, or those crimes, like keeping a bawdy-house, which from their nature are generally committed by women." 56 Necessity. Physical necessity or impossibility is an excuse for failure to perform a duty imposed by law. How far an act which would otherwise be a crime may be excused if done by one, not in defense, but to avoid otherwise inevitable consequences, which would inflict upon him or others whom he is bound to protect, irreparable evil, is doubtful. It seems, however, that no man can, on the plea of necessity, excuse himself for taking the life of an innocent person." 57 k. Provocation. Provocation is no ground for exempting one absolutely from criminal responsibility for his acts, but it may be ground for mitigating the punishment, as in the case of manslaughter in the heat of passion caused by adequate provocation.59 § 90. Criminal Incapacity-a. In General. 890. Since every crime usually consists of two elements - the act, and the mental element, commonly called "criminal intent "59-no person can be guilty of crime, unless he has sufficient mental capacity to entertain the necessary criminal intent. Mental incapacity may exist in (1) infants, (2) insane persons, (3) drunken persons, and (4) corpo rations. b. Infants. At common law a child under the age of seven years is conclusively presumed incapable of entertaining criminal intent, and cannot commit a crime. Between the ages of seven and fourteen a child is presumed to be incapable, but the presumption may be rebutted by showing capacity in fact.60 After the age of fourteen, he is presumed to have sufficient capacity, and he must affirmatively show the contrary to escape liability. In a few States, by statute, the above ages have been raised or lowered. 61 c. Insane Persons. Insanity, as understood in the Criminal Law, is any defect or disease of the mind which renders a person incapable of entertaining a criminal intent. Since a criminal intent is an essential element of crime, no person who is so insane that he cannot entertain it is criminally responsible for his acts; but the courts do not entirely agree as to the proper test of insanity. Defect or disease of the mind may have one or the other of the following effects: (1) It may render a person in 56. See 21 Cyc. 1353; Clark Cr. L. (2d ed.) 93. 57. See 21 Cyc. 832; Clark Cr. L. (2d ed.) 95. 58. Clark Cr. L. (2d ed.) 97. See supra, § 88, b, "Manslaughter." 59. See supra, § 89, a. 60. In England a boy of ten years, who after killing a little girl, hid her body, was held criminally liable, because the circumstances showed a mischievous discretion; and a boy of eight years was hanged for arson. In this country a boy of twelve years was hanged for murder in New Jersey. 61. See 22 Cyc. 622; Clark Cr. L. (2d ed.) 58. In capable of distinguishing between right and wrong, and in such case no criminal liability attaches.62 (2) It may render a person partially insane, or subject to insane delusions as to existing facts, but not in other respects insane. such case he will be in the same situation as to criminal responsibility as if the facts in respect to which the insane delusion exists were real.63 (3) It may deprive him of freedom of will, as in the case of irresistible impulse, when he nevertheless knows that his act is wrong. In such case some courts hold that he is not responsible, while others hold that he is.64 Moral and emotional insanity, as distinguished from mental, does not exempt one from responsibility. 7.65 A person cannot be tried for crime if he is insane, although he was sane when he committed the act, as he is deemed incapable of conducting his defense; nor can an insane person be sentenced and punished, even after conviction.66 d. Drunken Persons. As a general rule, when a person voluntarily drinks and becomes intoxicated, and while in such condition commits an act which would be a crime if he were sober, he is nevertheless responsible, even though he is incapable of knowing what he is doing, the settled rule being that voluntary drunkenness is no excuse. This rule, however, does not apply: (1) Where the act is committed while laboring under delirium tremens, or settled insanity, resulting from voluntary drunkenness; or (2) where a specific intent is essential to constitute the crime charged, as in the case of burglary or larceny, and the fact of intoxication negatives its existence; and (3) in prosecutions for murder the fact of intoxication may be material on the question of provocation, reducing the crime to manslaughter.67 Of course, there is no criminal responsibility for acts committed while in a state of involuntary drunkenness, destroying the reason and will.68 e. Corporations. A corporation, public or private, may be criminally liable for omission to perform a duty imposed upon it by law; and also for certain acts of misfeasance, such as maintaining a public nuisance; but in the nature of things, as it is impersonal, it cannot be guilty of felony or perjury, or, it seems, 62. All the courts agree as to this. See 12 Cyc. 165, 166; 21 Cyc. 663. 63. For example, if a person, under an insane delusion, supposes another to be in the act of attempting to take his life, and he kills the other, as he supposes, in self-defense, he is not responsible; but it would be otherwise if his delusion were that the deceased had libeled or defrauded him, since such fact, if true, would be no defense. See 12 Cyc. 167; 21 Cyc. 666. 64. See 12 Cyc. 169; 21 Cyc. 663665; Clark Cr. L. (2d ed.) 65. of offenses against the person, or of those involving malice or evil intention.70 § 91. Attempts and Solicitation. The law does not punish mere intention, but requires some overt act in an attempt to carry that intention into execution.71 As soon as the attempt is made, the law takes notice of and punishes it. All attempts to commit a crime, whether the crime be a felony or a misdemeanor, and whether it be such at common law or by statute, are misdemeanors at common law. An attempt to commit a crime is an act done with intent to commit that particular crime, and tending to, but falling short of, its actual commission. To constitute an attempt: (1) The act must be such as would be proximately connected with the completed crime; (2) there must be an apparent possibility to commit the crime in the manner proposed; (3) there must be a specific intent to commit the particular crime at the time of the act. Voluntary abandonment of purpose after an act constituting an attempt is no defense. Neither mere words and threats, nor mere preparations to commit a crime, are sufficient to constitute an attempt. It is essential that there shall be some overt act in pursuance of the intent, and more or less directly tending to the commission of the crime. Buying a gun for the purpose of killing another is a mere preparation, and is not an attempt to murder, but it is different if the gun is pointed and the trigger pressed, and probably even if it is merely pointed with intent to shoot and kill. If one walks toward a house intending to commit a burglary, this is not an attempt; but if he tries to open the door, and is unable to do so, it is otherwise.72 It has been held in England and some of the States that it is a crime to solicit another to commit a felony, like murder or larceny, or even an aggravated misdemeanor, although the person solicited refuses. Some courts, however, have held the contrary.' 73 § 92. Parties in Crimes. A crime is not always committed by a single individual, but several persons may be concerned in different degrees, some of them by actually doing the deed, others by standing by and abetting it, others by having advised or commanded it, although absent when it is committed, and still others by assisting in the escape of one concerned. Whenever persons join for the purpose of executing a common criminal purpose, each one is the agent of the other, as to all acts in furtherance thereof, and each is criminally liable for such acts of the others. It is otherwise, however, as to acts not in furtherance of the com70. See 10 Cyc. 1225; Clark Cr. L. overt act, which is doubtful. (2d ed.) 76. supra, 88, c, Conspiracy." 72. See 12 Cyc. 176; Clark Cr. L. (2d ed.) 126. 71. There is an exception to this rule in the case of conspiracy, unless the conspiring may be regarded as an 66 73. See 12 Cyc. 182. See |