BOOK III. Of the Persons capable of committing Crimes. HAVING, in the preceding Books considered the nature of crimes in general, and the several species of felonies and misdemeanors punishable in this state, either at common law or by statute, we are now to inquire what persons are or are not capable of committing crimes, and the several grounds of exemption from punishment. It is a general rule, that no person shall be excused from punishment for disobedience to the laws of his country, unless he be expressly exempted by those laws themselves. (a) All the grounds of exemption from punishment known to our laws proceed upon the want or defect of will in the party charged as the offender. For without the consent of the will, human actions cannot be considered as culpable; nor, where there is no will to commit an offence, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes.(b) As the guilt of offending against law arises from the disobedience being wilful, it follows that those who are incapable of understanding the law, or conforming themselves to it, for any reason, cannot with propriety be said to transgress it, or incur the penalty instituted for its violation.(c) The cases of want or defect of will, which create an exemption from punishment, are reducible to the following heads: 1. Infancy. 2. Insanity. 3. Subjection to the power of others. 4. Ignorance, or mistake. (a) 4 Black. Com. 20. 1 Russ. on Cr. 1. (b) 1 Russ. on Cr. 1. CHAPTER I. Exemption from Punishment, arising from Infancy. An infant is a person under the age of twenty-one years. Infants above the age of discretion, which is, in general, fourteen years, are presumed capable of discerning good from evil, and are, with respect to their criminal actions, subject to the same rules of construction, and the same modes of prosecution and punishment, as others of mature age.(d) There are, however, a few exceptions to this rule recognized by the common law and, in some misdemeanors, an infant is privileged by reason of his non-age, even though he be over fourteen: for instance, if the offence charged be a mere non-feasance, as not repairing a bridge or a highway, and other similar offences. In these cases, not having the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires, and his laches shall not be imputed to him.(e) Infants above seven years of age, and under fourteen, are said to be within the age of possible discretion; during which time they may or may not be guilty of crime, according to their natural capacity or incapacity. The presumption, where the offender is under the age of fourteen, is, that he has not a sufficient sense of right and wrong to be capable of committing crime. But this presumption, like most others, may be overcome by counter evidence, and by circumstances. For the ca pacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understanding. One lad of eleven years old may have as much cunning as another of fourteen; and in these cases the maxim is, that malice supplies age.(ƒ) Thus it is said, that an infant of seven (g) or eight years of age may be 1 Russ. on (d) Arch. Cr. Pl. 10, 11. Cr. 2, 3. 4 Black. Com. 22. 1 Wheel. Crim. Rec. 231. 1 Ashm. Rep. 248. (e) 4 Black. Com. 22. (f) Id. 23. 4 Car. & P. 236. And see 1 Wheel. Crim. Rec. 230, 231, and note. The intellectual capacity of the child may be proved by the testimony of witnesses. Per Southard, J., 1 South. R. 231. (g) 1 Ashm. Rep. 248. indicted for murder, and shall be hanged for it.(h) And an infant between the ages of eight and nine years has been executed for arson-it appearing that he was actuated by malice and revenge, and had perpetrated the offence with craft and cunning.(i) So a girl of thirteen was burnt for killing her mistress. (k) And where an infant nine years of age killed another of the like age, and confessed the felony, it appearing on the examination that he had hid the blood and the body, the justices held that he ought to be hanged; but they respited the execution that he might have a pardon. (1) But an infant under twelve years of age cannot be convicted of murder, upon his own confession alone, without other evidence. (m) An infant under the age of fourteen is presumed unable to commit a rape, and though, in other felonies, malice supplies age, yet, as to this fact, the law presumes the want of ability as well as the want of discretion.(n) But he may be punished for aiding and assisting in the commission of this offence, if it appear that he had a mischievous discretion. (0) And he may be indicted for an assault, with intent to commit a rape.(p) With regard to the maxim that malice supplies age, it seems agreed among all the writers on criminal law, that before an infant under fourteen is to be presumed capable of committing a crime, the evidence of mischievous discretion should be strong and clear, beyond all doubt and contradiction.(g) An infant under the age of seven years cannot commit a crime; for within that age the law regards him as doli incapax, (incompetent to discern evil,) and as not being endowed with any sort of discretion. No evidence is admissible to contradict this legal presumption; and all persons under seven years of age are absolutely exempted from criminal prosecutions, without regard to their mental capacity.(r) On the trial or examination of an infant for a crime or misdemeanor, he has a right to appear and defend himself in person, or by attorney; and (h) Dalt. Just. ch. 147. Arch. Cr. Pl. 11. 1 Russ. on Cr. 3. (i) 1 Hale's P. C. 25. Arch. Cr. Pl. 11. 1 Russ. on Cr. 3. 4 Black. Com. 24. (k) 1 Hale's P. C. 26. (0) Id. ib. (p) 2 Pick. Rep. 380. But the contrary has been decided in England. See 3 Car. & P. 396. (q) 1 Russ. on Cr. 3. 1 Black. Com. (1) Id. 27. 1 Russ. on Cr. 3. 4 Black. 24. Arch. Cr. Pl. 11. 4 Car. & P. 236 Com. 24. Arch. Cr. Pl. 11. (m) 1 South. 231, 240. (n) 3 Car. & P. 396. 1 Hale's P. C. 630. Roscoe's Cr. Ev. 777. Arch. Cr. Pl. 11. 1 Russ. 3. 1 Wheel. Crim. Rec. 230, 231, and note. 1 Ashm. 248. (r) 4 Black. Com. 23. Arch. Cr. Pl. 10, 11. 1 Russ. on Cr. 2. it is error for the court to assign him a guardian, and try the case on a plea pleaded for him by the guardian.(s) Where infancy is set up as a defence to a criminal prosecution, it is necessary that the infancy should be proved, by competent evidence. It has been held that the mere opinion of a witness respecting the age of a person, judging from his appearance, unaccompanied by the facts on which that opinion is founded, is inadmissible evidence.(t) By the revised statutes it is provided, that any person under sixteen years of age convicted of any felony, instead of being sentenced to imprisonment in a state prison, may be sent to the house of refuge for juvevenile delinquents, in the city of New-York.(u) (8) 3 Leigh's Rep. 743. (t) 6 Conn. Rep. 9. (u) 2 R. S. 701, § 17. CHAPTER II. Exemption from Punishment, arising from Insanity. THIS ground of exemption from punishment in criminal cases has been usually considered under three heads: 1. Idiocy; 2. Adventitious insanity; 3. Voluntary or acquired insanity. 1st. Idiocy.] An idiot is a fool, or madman from his birth; one who never has any rational or lucid intervals.(v) And those are said to be idiots whose want of intellectual capacity is such that they do not know their fathers or mothers, cannot number twenty, tell the days of the week, or the like; but these instances are mentioned as tests of sanity only, and are not always conclusive.(w) A man who is deaf and dumb from his birth, is by presumption of law an idiot; he being supposed incapable of discriminating between right and wrong, or of understanding the penal enactments of the law, as applicable to particular offences. But if it can be shown that he has the use of his understanding, which many of that condition discover by signs, then he may be tried, and suffer judgment and execution; though great caution should be observed in such proceedings.(x) 2d. Adventitious insanity.] This proceeds from various causes, and is of several kinds and degrees. It may be partial, as monomania, which is an insanity upon some particular subject, the party being sane upon all others; or total. So it may be permanent, when it is usually called madness; or temporary, the subject of it being afflicted with the disorder only at certain periods and vicissitudes, and having lucid intervals. In the latter case, it is denominated lunacy.(y) A person made non compos mentis by sickness, or as it has been sometimes expressed, a person afflicted with accidental or adventitious madness, is excused in criminal cases, from such acts as are committed while (v) Coke Litt. 247. 1 Russ. on Cr. 6, 7. Arch. Cr. Pl. 12. 1 Black. Com. 303. (w) Arch. Cr. Pl. 12. (x) 1 Russ. on Cr. 7. Arch. Cr. Pl. 12. 1 Black. Com. 304. (y) Arch. Cr. Pl. 12. |