Page:The American Cyclopædia (1879) Volume V.djvu/494

490 CRIMINAL LAW termed by the law malum in se, or only malum prohibitum, the criminality being less for any accident occurring in the latter case than in the former. There was much good sense in the rules of the Roman law in respect to culpability for accident. Gross negligence was held as culpable as a wrong intent (non minus ex dolo quam ex culpa quisque hac lege tenetur). Thus, if a man was lopping a tree near the road, and it should fall and kill a per- son passing by, he was held guilty if he had omitted to give proper warning. If a soldier exercising in a place appointed for that purpose should accidentally kill a slave by throwing a javelin, he was without fault ; but if it had happened in a place where he had no right to exercise, he was held guilty. Mistake is ad- missible when it relates to a fact, though, as before mentioned, mistake of law is no excuse ; as if a person should kill another that he sup- posed was breaking into his house, and it should turn out to be a member of his own family, he would be excused on the ground of having mistaken the person. Necessity, as a legal excuse, includes that class of cases which the law designates as duress. In the English law one other case is also included, viz. : the criminal misconduct of the wife by the com- mand or in the presence of her husband. The reason given in this case is, that the wife is sup- posed to be under the power of her husband ; but a better reason may probably be derived from the old law, by which the husband had the benefit of clergy if he could read, but the wife had not, and the rule was introduced from a motive of humanity. The exemption was allowed only in felonies other than treason and murder, but was not admitted as a defence to a charge of any misdemeanor less than felony. Duress is compulsion by the menace of death or other bodily harm, or by actual force. Blackstone limits the expression "bod- ily harm " to mayhem, or loss of limb ; ac- cording to which the fear of being beaten would be no duress, so neither would the fear of imprisonment. In this country, on the con- trary, a threat of any bodily harm, or even of the destruction of property, would be held to be a duress in that connection. But when it is set up as a justification for the commission of a criminal act, perhaps nothing less than the fear of losing life, or of some permanent bod- ily injury, would be admitted as a legal excuse. As to the law relating to principals and acces- sories, there is less discrimination than is called for by our natural sense of justice, as well as by a due regard to public policy. An acces- sory before the fact, who is one that has pro- cured or advised the commission of the crime which is the subject of prosecution, is properly held liable in equal degree with the principal for the act which has been committed, and all its natural consequences ; but not for another and distinct crime which may have been com- mitted by the principal while engaged in the commission of the offence to which he had been instigated. If A procures B to beat 0, and in consequence of such beating C should die, A is guilty of murder ; but if A hires B to beat a man, and he should set fire to his house, this being a distinct offence, A is not indictable for it as accessory. An accessory after the fact is one who, knowing a felony has been committed, receives, relieves, and assists the felon. The criminality of an ac- cessory after the fact is in England and this country deemed less' than that of the principal. The punishment is imprisonment only, even if the offence committed by the principal is punishable by death. III. The rules of evidence and mode of proceed- ing in criminal trials can be but briefly referred to. The most important principle of the Eng- lish and American law, and what chiefly dis- tinguishes it from the criminal codes of other countries, is that the person accused is not compelled to testify. In the preliminary ex- amination upon arrest, where the arrest pre- cedes indictment, he is indeed allowed to make his statement, and such statement may be used as evidence against him. But he is usually in- formed by the magistrate that he is not bound to answer the charge unless he chooses to do so. Another rule, which follows naturally from the preceding, is that it is not necessary to prove the guilt of the accused by more than one witness, except in the case of treason and perjury. In the tribunals of some other coun- tries a different rule prevails, because it is the general practice to put the accused under rigid examination; and if he denies the crime, it is an oath in his own favor, which ought not to be overbalanced by a single oath against him. It was the ancient practice in England not to allow the accused to produce witnesses ; and when the courts so far relaxed this strictness as to hear witnesses for the defence, it was still without oath, and the evidence was therefore of less weight. But by statute 1 Anne, c. 9, witnesses are required to be examined on oath for the prisoner as well as against him. The privilege of defence by counsel was until a re- cent period denied in the English courts in trials for treason and felonies, while by a strange inconsistency it was allowed in trials for misdemeanor. In cases of treason, which was a class of trials in which there had been the greatest outrage of common rights, relief was given by statute 7 and 8 William III., c. 3, which allowed counsel to be assigned to the prisoner upon his request; and in cases of felony, by statute 6 and 7 William IV., c. 114, by which all persons arraigned upon a crimi- nal charge are allowed to make defence by counsel. In the United States, this right was thought of such importance that it was secured by article 6 of the amendments to the federal constitution, and in the several states a similar provision has been made either by the consti- tution or by law. In France, the practice formerly was to hold the accused to answer in person without the aid of counsel ; but it is