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actions. But if there be a defective or vitiated understanding, there is no consent of the will; and this is either natural, acci. dental or acquired, and is permanent or temporary and has been divided by the writers upon criminal law into three classes, viz:

(a) A nativitate vel dementia naturaliswhich is idiocy or natural fatuity.

(6) Dementia accidentalis vel adventitiawhich is such as have had understanding but have lost the use of their reason by disease, grief or other accident.2

(c) Dementia affectatawhich is a voluntary insanity produced by intoxication, or other like causes, which places a person in a temporary frenzy.

We will follow the classification above laid down, and discuss each in its order.

(a) An idiot is one who is of non sane memory from his birth, by perpetual infirmity, without lucid intervals,' and hath had no understanding from his nativity. It is laid down that a man is not an idiot if he hath any glimmering of reason so that he can tell his parents, his age, or the like common matters ;5 but a man who is born deaf, dumb and blind, is looked upon by the law in the same state as an idiot; he being supposed incapable of any understanding, as wanting aļl those senses which furnish the human mind with ideas.

An idiot is not of course capable of committing a crime, but to make a lack of natural sense a valid excuse, we are not to suppose that the party must, in all cases, come within the strict definition given above. One may possess such a glimmering of reason as to show that he is not, strictly speaking, an idiot, and still not have sufficient discretion and judgment to enable him to distinguish between good and evil. The question then to be determined in regard to such persons is, whether they possess enough reason to make them capable of malicious discretion.

1 Lake v. Peo., 1 Park., 495; 3 C. & K., 188; 6 Cox, C. C., 385; 4 Id., 149; 5 John., 144; 4 Cow., 207; Peo. v. Robinson, 1 Park., 649; Peo. v. Kirby, 2 Id., 28.

11 Blac. Com. 304. 3 Co. Lit. 247.

1 Blac. Com. 303. * Id.; F. N. B. 233. • Id.; Co. Lit. 42; Fleta, b. 6, c. 40. '1 Arch. Cr. Pl. § 4, note.

The question, however, whether the accused is an idiot or not. is a question of fact for the jury, and it is for them to determine whether the accused has the use of understanding sufficient to enable him to distinguish good from evil.1

(0) In this class of cases commonly called insanity, when the loss of reason is permanent, constant and total, it is called mad. ness, and when it is temporary, the subject being only afflicted at times, enjoying lucid intervals, when his reason returns, it is called lunacy. Besides this general classification adopted by the older writers, the modern authors upon medical jurisprudence,3 in their investigations into the question of insanity, considered as a legal defence, have bestowed great care and labor in classifying the different cases of insanity, and describing their attendant symptoms and peculiarities, and the reader who desires to study this interesting branch of the criminal law, is referred to the later works upon medical jurisprudence.

The rules recognized in governing pleas of insanity, are different from what they were in the days of the earlier writers. The improvements in the science of medical jurisprudence, a more enlarged benevolence, and a clearer sense of Christian obligation have relaxed the cruel severity of the earlier doctrines.

A controling case upon the question of insanity, as a defence for the commission of crime, is that of Rogers. The court there laid down the rule, that a party indicted is not entitled to acquittal on the ground of insanity if, at the time of the alleged offence, he had capacity and reason enough to enable him to distinguish between right and wrong, and understood the nature, character and consequences of his act, and had mental powers sufficient to apply that knowledge to his own case; that when the delusion of a party is such that he has a real and firm belief of the existence of a fact which is wholly imaginary, and under that insane belief he does an act which would be justifiable if such fact existed, he is not responsible for such act; nor is a party responsible for an act done under an uncontrollable impulse,

' 1 Russ. on Cr. 6; Bac. Abr. Idiots, a.; Bro. Idiot L. Dy. 25; Moor, 4 Pl. 12; F. N. B. 233.

1 Arch. Cr. Pl. § 5, note.

Wharton & Steele's Med. Juris. 75, et seq. • Vide Beck, Guy, Dean, Whar. & Steele on Med. Juris. * 1 Arch., Cr. Pl., § 5, note, 7th ed. • Com. v. Rogers, 7 Met., 500; more fully in pamphlet of Rogers' trial.

which is the result of mental diseases. The same doctrine has been held in this State, that when insanity is set up as a defence the single question is whether, at the time of committing the act, the person was laboring under such mental disease, as not to know the nature and quality of the act he was doing, or if he did know it that he did not know he was doing wrong.?

Where insanity is alleged as a defence to the indictment, the test is whether, at the time of committing the act, he was laboring under such mental disease as not to know the nature and quality of the act he was doing, or that it was wrong;: for where the lunatic has lucid intervals the law presumes the offence of such person to have been committed in a lucid interval, unless it appears to have been committed in the time of his malady.4

The question, as to whether the prisoner is insane or not at the time of the trial, is regulated by statute, and will be spoken of hereafter;" and the finding of a jury upon a preliminary issue to the trial, as to whether the prisoner be sane at the time of the .trial, (the statute providing that no insane person shall be tried) cannot be taken into consideration upon the question of insanity set up as a defence upon the trial of the indictment itself.6

Independent of the common law docrine, the Revised Statutes declare that no act done by a person, while in a state of insanity, can be punished as an offence.?

(c) The third species of insanity, viz: that which is acquired or voluntary, is looked upon by the law as an aggravation of the offence, rather than as an excuse for criminal misbehavior, and the law holds a person responsible for a criminal act, though at the time he was intoxicated to such an extent as to be unconscious of what he was doing.'

Voluntary intoxication can form no excuse or immunity for

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Com. v. Rogers, 7 Met. 500; more fully in pamphlet of Rogers' trial. · Clark's case, 1 City H. Rec., 176; Bolls, Id., 2 Id., 85; Peo. o. Pine, 2 Barb., 566; Peo. v. Sprague, 2 Park., 43. Vide, 2 Green's Ev., $ 373; 10 Clark & Fin, 210; 9 C. & P., 525; see Peo. v. Lake, 2 Park., 215. • Id.; Freeman v. Peo., 4 Den., 9; Willis v. Peo., 5 Park., 621.

1 Russ. on Cr., 6; 1 Hale, P. C., 33, 34; 3 Stark. on Ev., 1702.

* Post page.

• 4 Den., 9.
'2 R. S., 697, § 2.
• 4 Blac. Com. ch. 25 & 6.

• Peo. v. Robinson, 1 Park. 649; 7 C. & P. 145; 2 Id. 235; 1 Beck. 627; 5 Mason, 28; Lewis' Cr. L. 394-405.

crime, and so long as the offender is capable of conceiving a design, he will be presumed in the absence of contrary proof, to have intended the natural consequences of his own acts.?

Thus, the voluntary intoxication of one who without provocation commits a homicide, although amounting to frenzy, does not exempt him from the same construction of his conduct, and the same legal inferences upon the question of intent, as affecting the grade of his crime, which are applicable to a person entirely sober.2

But evidence of intoxication is, however, always admissible. Where the crime was committed after provocation, it may be considered in determining whether it was done in the heat of passion; and in other cases whether threatening words were uttered by the culprit, with deliberate purpose, or otherwise, and generally, to explain his conduct.3

The question is well settled, that insanity occasioned by previous habits of intemperance, and not directly resulting from the immediate effects of intoxicating liquors, is entitled to the same consideration as insanity from any other cause ; thus, where a person is insane at the time he commits a murder, he is not punishable as a murderer, although such insanity be remotely occasioned by undue indulgence in spirituous liquors; although, as we have previously seen, it is otherwise if he be at the time intoxicated, and his insanity be directly caused by the immediate influence of such liquors."

So, also, where the frenzy is induced by a violent passion, unless settled down into a state of total derangement, it will not excuse the commission of an offence.5

That the prisoner was intoxicated, is no defence to an indictment for perjury. 'Kenny o. People, 31 N. Y. 330. * Peo. v. Rogers, 18 N. Y. (4 Smith,) 9.

• Idem; 1 Russ. on Cr. 8; Add. R. 257 ; Ros. Cr. E. 784; Peo. v. Eastwood, 14 N. Y. (4 Kern.) 562; Peo. v. Hammil, 2 Park. 223.

Drew, 5 Mason (Circuit Court), 28; Peo. v. Rogers, 18 N. Y. 9; Peo. o. Robinson, 2 Park. 235.

* Pienovi's Case, 3 City H. Rec. 123. • Peo.o. Wildey, 2 Park. 19.

+ U.S. o.

SECTION III.

EXEMPTION FROM PUNISHMENT FOR ACTS DONE IN SUBJECTION TO

THE POWER OF OTHERS.

It is laid down from the earliest writers that persons are pro. perly excused from those acts which are not done of their own free will, but in subjection to the power of others;' for where there is compulsion and inevitable necessity, they are a constraint upon the will whereby a man is urged to do that which his judgment disapproves, and which it is to be presumed his will (if left to itself) would reject. The principal cases, under which this class of exemptions from punishment arise, may be arranged under the following heads:

1 Duress per minas, or by threats and menaces.

2. The obligation of civil subjection which arises from either public or private relations.

1 The species of compulsion or necessity which arises in cases of threats and menaces, are those which induce a fear of death or other bodily harm, and the fear which compels a man to do an unwarrantable action ought to be just and well founded. 3

The general rule may be laid down, that the person committing a crime will not be answerable if he was not a free agent, and was subject to actual force at the time the act was done. Thus, if A, by force, take the arm of B, in which is a weapon, and thereunto kill C, A is guilty of murder but not B; but if it be only a moral force put upon B, as by threatening him with duress or imprisonment, or even by an assault to the peril of his life, in order to compel him to kill C, it is no legal excuse.*

The law regards life and member, and not only protects every man in the enjoyment of them, but furnishes him with everything necessary for their support;5 and it is said that duress per menas is either fear for loss of life, or else fear for mayhem, or loss of limb. This fear of battery or being beaten, though never so

* Russ on Cr., 18; 1 Hale, 43; 4 Black. Com., 27. 2 4 Blac. Com.,

28. : 4 Blac. Com., 30.

1 Russ. on Cr., 18; 1 Hale, 433; 1 East., P. C. C., 5, $ 12. • 1 Black. Com., 131. • Id.

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