press mention of any other mode of proceeding impliedly excludes that of indictment.j (4.) Where a Common Law Misdemeanor is made a Statutory Felony. In England, when a misdemeanor at common law is created a felony by statute, the misdemeanor is merged, and cannot be prosecuted as such;k and the reason is, that if such were not the case, the defendant would lose his right to a special jury, and to a copy of the bill of indictment. The same doctrine is held at common law in Pennsylvania, m Massachusetts, n and in Maryland. In New York, Vermont, and Ohio, however, it is said, that as the reason for the English rule does not there apply, the rule itself does not hold; and it is accordingly held that if the evidence, in an indictment in such case, does not make good the felony, the word feloniously may be rejected, and judgment had for the constituent misdemeanor. p In Massachusetts the latter principle is now established by statute. q o § 11. (5.) When Common Law is absorbed in Statute generally, and herein of the Pennsylvania Act of March 21, 1806. — Where a new mode of punishment, or new method of procedure, is directed, the class of the offence not being altered, the remedies, in general, are considered cumulative, and the defendant may still be indicted at common law. r But in Pennsylvania the law is different. It is there provided, that "in all cases where a remedy is provided or a duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to j R. v. Robinson, 2 Burr. 805; R. v. Buck, 1 Str. 679. k R. v. Cross, 1 Ld. Raymond, 711; 3 Salk. 193. See post, § 400. Hawk. b. 2, c. 47, s. 6; 1 Ch. C. L. 251, 639; R. v. Walker, 6 C. & P. 657; though see R. v. Carradice, Rus. & R. 205. m Com. v. Gable, 7 Serg. & Rawle, 423, per Tilghman, C. J.; Hackett v. Com. 3 Harris, 95, is seemingly contra, but here the term "feloniously" was a mere matter of impertinence in the bill, and there was no attempt to prosecute the case as a felony. n Com. v. Newell, 7 Mass. 245. q Com. v. Squires, 1 Metc. 258. r R. v. Dickinson, 1 Saund. 135, note (4); 2 Hawk. P. C. c. 25, s. 4; R. v. Wigg, Lord Raymond, 1163; 2 Salk. 460; 1 Russell on Crimes, 49; State v. Jesse, 7 Gill & Johnson, 290; Turnpike Road v. People, 15 Wend. 267. the provisions of the common law, in such cases, further than shall be necessary for carrying such act or acts into effect." s It has been held by the courts, in conformity with this act, that wherever a mode of procedure is attached to a specific offence by any act of assembly, the common law remedy is abrogated, and the indictment and sentence must pursue the act. t It was even held, that where an act of assembly gave a penalty to the party injured by the extorsive and corrupt conduct of a magistrate, which penalty was to be recovered in a civil suit, the offence ceased to be indictable at common law. But it seems that the act in question only applies when a specific method of procedure is directed by act of assembly; for when a new penalty is attached to a common law offence, then the indictment may still be at common law, though in case of conviction, no other than the statutory punishment can be inflicted. Thus, when an act of assembly provided a new punishment for murder, it was held, that though by so doing the act of 21st of March, 1806, prevented any other than the statutory punishment from being imposed, yet the indictment would still lie at common law, and that it was not necessary for it to conclude contrary to the act.u In nuisances, also, either in the obstruction of navigable rivers against which there are peculiar statutory provisions, v or in the endangering of the health of the city of Philadelphia, to protect which a board of health, armed with plenary powers, is established, w the remedy of common law is unextinguished. x Revised Statutes. When a code covering a whole branch of law is adopted, it is a serious question whether the common law on that topic is not abrogated. In Massachusetts, at least, it is held that by a well established rule of the construction of statutes, the common law is held to be repealed by implication, when the whole subject has been revised by the legislature.” x1 § 12. (6.) Penal Statutes are to be strictly construed. — This u Com. v. Evans, 13 Serg. & Rawle, s Act of 21st March, 1806, sect. xiii.; 4 Smith's Laws, p. 332. Post, $ 373. 13 Serg. & Rawle, 273; 1 Rawle, 290; 3 Penn. R. 180; 3 Watts, 330; 5 Rawle, 64; 5 Wharton, 357. Post, $ 373. 426. v Com. v. White, 6 Binney, 179. Post, § 371. w Com. v. Church, 1 Barr, 105. x Com. v. Vansickle, Brightly R. 69. Post, § 373. x1 Com. v. Dennis, 105 Mass. 162. elementary proposition it is scarcely necessary to recapitulate; though we must keep in mind that this strictness of construction is to be applied not to the merely remedial but only to the restrictive and punitive clauses in penal statutes. A statute operates to enlarge or to restrain liberty: when the former, it is to be largely construed; when the latter, cautiously and reluctantly. This is a maxim of the Roman law, which, though foreign to the notion of the old English common law, that crime is to be avenged in kind and in full measure, was at an early period adopted by English jurists. y Yet in construing such statutes, we are to look for the reasonable sense designed by the legislature; and if this is clearly ascertained, it must be applied, though a narrower sense is possible.z y L. 42. D. de poen. (48. 19.) Interpretatione legum poenae molliendae sunt potius, quam asperandae. L. 155, § 2. D. de reg. iur. (50. 17.) In poenalibus causis benignius interpretandum est. cap. 49. de reg. iur. in VI. (5. 13.) In poenis benignior est interpretatio facienda. English and American cases are given, post, § 364, 371-8. See also 1 Bl. Com. 86, 87; Bac. Abr. Stat. I. 7, 9; State v. Stephenson, 2 Bailey, 334; Com. v. Martin, 17 Mass. 359; Carpenter v. People, 8 Barbour, 603; Warner v. Com. 1 Barr, 154; Randolph v. State, 9 Texas, 521; U. S. v. Andrews, 2 Story, 203; U. S. v. Ragsdale, Hempst. 497. z State v. Smith, 32 Me. 369; Com. v. Houghton, 8 Mass. 109; Com. v. Whitmarsh, 4 Pick. 233; Stone v. State, Spencer, 401; Hodgman v. People, 4 Denio, 235; People v. Mather, 4 Wend, 229; People v. Hennessy, 15 Wend. 147; Ream v. Com. 3 S. & R. 207; Com. v. King, 1 Whart. 448; State v. Fearson, 2 Md. 310; Angel v. Com. 2 Va. Cas. 228; Thomas v. Com. 2 Leigh, 741; State v. Girken, 1 Ired. 121; State v. Taylor, 2 McCord, 483; U. S. v. Jones, 3 W. C. C. R. 209; U. S. v. Brewster, 7 Peters, 164; U. S. v. Staats, 8 How. U. S. 41. This qualification is com mon to all systems of jurisprudence. Thus the Roman law: .... L. 6, § 1. D. de verb. signif. (50. 16.) Verbum: ex legibus, sic accipiendum est, tam ex legum sententia quam ex verbis. L. 3. D. de L. Pomp. de parric. (48. 9.) Sed sciendum est, lege Pompeia de consobrino comprehendi, sed non etiam eos pariter complecti, qui pari proprioreve gradu sunt. Sed et novercae et sponsae personae omissae sunt, sententia tamen legis continentur. L. 1. § 13, D. ad SC. Turpill. (48. 16.) . . . . verum hunc, qui hoc ministerio usus est ad mandandam accusationem, non ex verbis, sed ex sententia Senatus-consulti puniri, Papinianus respondit. Quintilian. Declam. 331. Nulla tanta providentia potuit esse eorum, qui leges componebant, ut species criminum complecterentur Fecerunt ergo, ut rerum genera complecterentur, et spectarent ipsam aequitatem. Multa ergo invenientur frequenter, quae legum verbis non teneantur, sed ipsa vi et potestate teneantur. Idem Declam. 350. Nulla tanta esse potuit prudentia maiorum, ut ad omne genus nequitiae occurrat. Ideoque per universum, et per genera singula conscripta sunt iura. Caedes videtur significare sanguinem et ferrum. Si quis alio genere homo fuerit But still, in matters of reasonable doubt, this doubt is to tell in favor of liberty and life. This proposition is involved in the first. By the English judges it was pressed sometimes to an unreasonable extreme under the stress of statutes imposing capital execution on minor crimes; and hence as a maxim it has subsequently been hesitatingly expressed. But in its right sense it lies at the foundation of our penal jurisprudence. occisus, ad illam legem revertemur: si inciderit in latrones, aut in aquas praecipitatus, si in aliquam immensam alti VOL. I.-2 tudinem deiectus fuerit, eadem lege vindicabitur, qua ille, qui ferro percussus sit. 17 CHAPTER II. WHAT PERSONS MAY BE INDICTED. 1. PERSONS NON COMPOTES MENTIS, § 13. 1. WHERE THE DEFENDANT IS INCAPA BLE OF DISTINGUISHING RIGHT FROM 2. WHERE THE DEFENDANT IS ACTING CONSEQUENCE OF THE DELUSION, § 17. 3. WHERE THE DEFENDANT, BEING INSANE, IS IMPELLED BY A MORBID RE MIT THE PARTICULAR ACT, § 24. 4. "MORAL INSANITY," § 31. 5. HOW INTOXICATION AFFECTS SPONSIBILITY FOR CRIME, § 32. (a.) Insanity produced by delirium tremens affects the responsibility in the same way as insanity produced by any other cause, § 33. (b.) Insanity produced immediately by intoxication does not destroy responsibility, where the patient, when sane and responsible, made himself voluntarily intoxicated, § 37. (c.) While intoxication per se is no defence to the fact of guilt, yet when the question of intent or premeditation is concerned, evidence of it is material for the purpose of determining the precise degree, § 41. 6. RESPECTIVE PROVINCES OF WITNESSES, COURT, AND JURY, § 45. (a.) Non-expert witnesses, § 45. (c.) Questions to be put to experts, § 50 a. (b.1) As to particular facts in proof, § 50 c. (c.1) On a hypothetical case, § 50 d. (d.1) Conclusions of law, § 50 g. (d.) Weight to be attached to experts, § 50 h. (e.) Technical admissibility of ex parte expert testimony, § 50 l (f.) Law to be determined by court, § 50 m. (g.) Scientific treatises, § 50 n. 7. BY WHOM AND HOW THE DEFENCE 9. FACTS FROM WHICH INSANITY MAY (a.) Prior or subsequent insanity, § 56. (b.) Physical peculiarities, § 56. (c.) Hereditary tendency, § 57. 10. PREDISPOSITION ΤΟ INSANITY AS LOWERING GRADE OF GUILT, § 57 a. II. INFANTS, § 58. III. FEME COVERTS, § 66. IV. PERSONS IN CERTAIN EXTREME CASES IGNORANT OF LAW OR FACT, § 82. V. CORPORATIONS, § 85. VI. PERSONS UNDER COMPULSION, § 90 a. VII. PERSONS ACTING UNDER NECESSITY, § 90 b. I. PERSONS NON COMPOTES MENTIS. § 13. BOTH the legal and psychological relations of persons of unsound mind are discussed at large in another work, a to which the reader is referred as containing the learning on these a Wharton & Stille's Med. Juris. Vol. I. § 108 et seq. |