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for the prosecution; or of evidence tending to show that the prisoner could not be guilty of the crime, because he was in another place at the period when it is said to have occurred, and which is popularly called an alibi; or of evidence calculated to show that the witnesses for the prosecution are unworthy of credit, by contradicting them upon points of their evidence relative to the transaction; or, lastly, of evidence tending to show the improbability of the prisoner's guilt, by proving that he has borne a character for qualities the reverse of those which would produce the criminality imputed. The two last of these grounds of defence are all which require observation here, because they alone involve questions of evidence differing from those which govern the proofs in support of the charge.

Drunkenness, or Insanity.]-Drunkenness at the time of committing the offence affords no excuse, but is rather an aggravation of the act (g), and this is so even in murder, where premeditated malice is a necessary ingredient. Insanity at the time of committing the act charged will be a defence, if clearly made out by competent witnesses.

Infancy.]-When a child of any age between seven and fourteen is indicted for felony, it should be left to the jury to say, first, whether the offence was committed by the prisoner, and if it was, then whether at the time it was so committed the child knew that it was wrong; and the legal presumption being that a child of that age has not such (viz. guilty) knowledge, it is for the prosecutor to rebut it by evidence (h).

(g) Co. Lit. 247; R. v. Carroll, 7 C. & P. 145; 1 Hale, 32; R. v. Meakin, 7 C. & P. 297.

(h) R. v. Elizabeth Owen, 4 C. & P. 236. In York's case, Foster, 70, which occurred in 1748, a little girl of five years old, supported in a parish work-house, was murdered by blows, and her body found concealed in a dunghill. A boy of ten years old, who inhabited the same house, confessed several times that he had deliberately murdered her; giving a methodical and consistent detail of a multitude of circumstances, showing what Lord Hale calls (1 Hale, 630) a "mischievous discretion" in himself. He was found guilty, but sentence was respited for the opinion of the judges. They all thought that to spare this criminal merely on account of his age would be of very dangerous consequence, considering the many serious offences,

as arson, &c. of which children are capable. However, many reprieves were granted to afford time to investigate the origin of the matter more closely, but no light being cast on it, it was resolved to grant no more of them; when, after nine years, a pardon was granted at the Summer Assizes, 1757, on condition of the prisoner immediately entering the sea service.

Indictment for assaulting A. S. with intent to commit rape. The prisoner was sworn to be about fourteen. He did not penetrate the person. Held, that as a lad under fourteen cannot, in point of law, be guilty of an assault with intent to commit rape, he cannot be proved to be able to commit it. Convicted on second count for common assault. Patteson, J., in Reg. v. Philips, 8 C. & P. 736. Again, in Reg. v. Jordan and another, 9 C. & P. 118, it was held, that a boy

Defence by Wife on ground of Coercion by Husband.]-The general rule governing this line of defence is, that a wife cannot be convicted of a bare theft or even of a burglary committed in the company of her husband; such act of hers being presumed to be done under his coercion, and therefore punishable in his person only. But this is in all cases merely a presumption, open like all others to be rebutted by evidence to the contrary; for if the husband is crippled or bed-ridden, or if she is the principal actor in and inciter to the felony, she seems punishable as well as the husband (i). And it is quite clear that if in his presence she commits treason, homicide, robbery, or perjury, or as it would seem, any felony accompanied with violence; or if in his absence she steals, or takes an active and independent part in receiving stolen goods, or in receiving a person whom she knows to have committed felony; or utters a forged order for the payment of money; or aids or abets her husband in assaulting another, and causing a bodily injury dangerous to life, she will be liable as if she were sole, though ber offence may have been planned or commanded by her absent husband (j). For offences of this nature committed by a wife in the absence of her husband, they may be indicted together, charging the wife as principal, and the husband as accessory (k).

A distinction has been laid down that a wife is punishable for any offence short of felony committed by her, whether alone or in company with her husband (1); but its soundness may be questioned, and it has been disregarded in a case where husband and wife were jointly indicted for uttering base coin; the uttering being by the wife in her husband's presence (m). Again, a wife, being looked upon as the ser

under fourteen cannot be found guilty of a rape, or of feloniously abusing and carnally knowing a girl under ten, though he is proved to have arrived at the full age of puberty.

(i) See R. v. Archer, 1 Mood. C. C. 143, cited in R. v. Cruse et ux. 2 id. 53; R. v. Hughes, 1 Russ. Cr. 18, relied on in R. v. Cruse, 2 Mood. C. C. 58.

(j) See 1 Hawk. c. 1, s. 2, 9; 1 Hale, 45, 47, 516, 621; 2 East, P. C. 552; R. v. Sarah and John Morris, R. & Ry. C. C. 270, S. C.; 2 Leach, 1096; R. v. Eliza Archer and others, 1 Moo. C. C. 143; R. v. Dicks, 1 Russ. C. & M. 16. The original reason for this privilege may have been that suggested by Mr. Christian, in a note to his edition of Blackstone, 4th vol. p. 29, that the wife could not pray benefit of clergy as the

husband might. As to wife's aiding and abetting her husband's felonious assault on another, see Reg. v. Cruse, post, this chapter, Judgment and Discharge.

(k) See last note.

(7) 1 Salk. 384; Ryland's note (10) to 4 Bla. c. 29; 1 Hawk. c. 1, s. 13; Dalton, c. 139, p. 314, e. g. keeping a disorderly house; for which she may be indicted alone, if her husband does not live with her, 1 Bac. Ab. 294, or jointly with him if he does, 1 Hawk. c. 1, s. 12. So she is indictable jointly with him for keeping a gaming house, 10 Mod. 335, R. v. Dickson and wife, and for conspiring with another as well as her husband, and for forcible entry, &c.; and alone for riot, assault, &c. See 1 Hawk. c. 1, s. 10-14.

(m) R. v. Price, 8 C. & P. 19. By

vant of the husband, is not indictable for breach of duty in not providing his apprentice with sufficient food and necessaries, whereby he died, unless she wilfully withheld them when furnished to her for his use by her husband (n).

A wife cannot be indicted for conspiring with her husband alone, or as accessory after the fact for receiving him after knowing him to have committed felony, or for receiving jointly with her husband a third person known to be in a like circumstance (o). She is absolved from liability in the first case, by being in law one person and having but one will with her husband, and by her subjection to him in the other two. On the other hand, a husband is indictable as accessory after the fact for receiving his wife, knowing her to have been guilty of felony (p).

Wife (or her Paramour) taking Husband's Goods, &c.]—The possession of the wife being in point of law identical with that of the husband, she cannot be guilty of stealing any article belonging to him alone, or to him and others (g), unless when so stolen it was in the actual possession of a third person, who by any rule of a society of which he is a member, or by compulsion of law, would, in case of its loss, be chargeable for it as bailee (r). Though a wife may thus with impunity part with her husband's property to another, yet if, as in a common case in the humbler walks of life, she and a male confederate jointly abstract it, the man is indictable, notwithstanding her consent to and share in the act; for the taking is still presumed to be invito domino (s). A married woman who stole the goods of another in the house in which she herself resided with her husband as the householder, was held only punishable for simple larceny, and not capitally under st. 12 Anne, c. 7, then in force, for stealing to a certain amount in a dwelling house (t).

Proof of Coverture as a Defence.]-A woman who sets up her

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band, a member of it.

(r) 1 Hale, 514; R. v. Phœbe Bramley, R. & Ry. 478. See R. v. Eliza March, 1 Mood. C. C. 182, arson of a husband's house.

(s) R. v. Tolfree, 1 Mood. C. C. 243, appearing to overrule R. v. Clark, id. 376, n. Semb. the same if they are found in joint possession of it. In R. v. Tolfree, no adultery previous to the stealing was proved.

(t) R. v. Gould, 1 Leach, 217.

coverture in her defence must prove it (u), unless her character as such is admitted by her description in the indictment, e. g. wife of A. B. (v); and though strict evidence of a marriage need not perhaps be given, the jury must be satisfied of it on the evidence given. Cohabitation and reputation of a marriage have been considered sufficient evidence of it (w), though mere cohabitation and passing by a man's name are not (x).

Discrediting Witness,-by showing his different Statement at another Time,-Imputing Crime, &c.]—It is a general rule, that where it is proposed to discredit a witness called on the other side, by showing that, on another occasion, he has given a different account of the transaction, he must be first cross-examined as to such account, and the subject brought distinctly to his memory (y), by specifying particulars of time and place, and of the person, if any, involved in the contradiction to be afterwards given (z). When this has been first done, evidence of his declarations, or acts inconsistent with his testimony, on matters relevant to the issue, and which he has denied on crossexamination, may be admitted (a). But such declaration can only be received to contradict him, where he absolutely denies that he ever used it, and not when he says he has no recollection one way or other (b). If he has been asked whether he committed a crime, or has been in prison, or any other matter intended to affect his general credit, and denies the imputation, evidence cannot be received to show that his denial is false; or else the time of the court might be occupied in the trial of a number of collateral circumstances on which neither the witness nor those who call him can be supposed ready to enter (c). Thus, where a witness, on the trial of his master for felony, was asked whether he had not been charged with robbing the prisoner, and also whether he had not threatened to be revenged of him, and to fix him in gaol, but denied both; on the offer of evidence in contradiction, it was holden that the witness's answer as to the charge of robbery against him was conclusive; but that on the latter, as the words

(u) R. v. Jones, Kelynge, 7.

(v) 1 Hale, 46; R. v. Knight, 1 C. &

P. 116.

(w) R. v. Atkinson, Russ. C. & M. 20, Bayley, J.

(x) R. v. Hassall and another, 2 C. & P. 434.

(y) The Queen's case, 2 Brod. & Bing. 229, 311; 1 Phill. Ev. 292, 5th ed.

(z) Angus v. Smith, M. & Malk. 473. (a) Ibid. De Jailly v. Morgan, 2 Esp.

N. P. C. 691; but if the particular question which should have been put to the plaintiff's witness for the defendant, has not been put, the court has a discretion to suffer him to be recalled before the defendant's proceeding to contradict him, Angus v. Smith, M. & Malk. 474.

(b) Pain v. Beeston, 1 M. & Rob. 20. (c) R. v. Clarke, 2 Stark. N. P. C.

244.

might have reference to his testimony on the pending indictment, evidence might be received to show that the words were spoken by the witness (d). It is in no case allowable to adduce evidence to prove that the witness is unworthy of credit, because he has been guilty of a crime, or a number of crimes, as to which he has not been examined; the reverse was strenuously contended for in a case of high treason, in reference to the principal witness for the crown; and the judges then, without requiring the attorney-general to reply, rejected the evidence, as clearly inadmissible (e). The only general evidence to discredit a witness which is allowed in any case (except the production of a record of conviction to disqualify him. in point of law) is that of witnesses who state that they would not believe him on his oath. This is the simple answer which such witnesses can be allowed to give on examination in chief, but they may be cross-examined as to the grounds of their opinion, and, unless they can give some very satisfactory reasons, little weight will be attached to such a statement. It is obvious that such an assertion is as difficult to support as it is easy to make. Its admission seems inconsistent with the principle, that irrelevant facts shall not be allowed to heap infamy on a witness, since such testimony can only be supported as the result of facts known to the party who makes it ; and, in practice, judges are in the habit of directing juries that it is worthy of very little attention.

2. Evidence to Character of Accused;-and its Effect.]-A party accused is always permitted to call witnesses, who have been more or less acquainted with him, to bear testimony to the character he has maintained in respect of the qualities which are inconsistent with the imputed offence; as to his character for honesty, on a charge of stealing; to his humanity, on a charge of violent assault; to his loyalty, on a charge of sedition or libel. These witnesses will be permitted to speak to general character only, and not to particular actions; but they may be allowed to state their peculiar means of knowledge, as, that the prisoner was in their employ and trusted by them; and the jury may draw the inference of the value of character derived from such

sources.

As to the effect of character, and the manner in which it should be left to the consideration of the jury, it may be observed, that it

(d) R. v. Jewin, 2 Campb. 638.
(e) R. v. Watson, 2 Stark. N. P. C.

150. Point as to the witness Castles.

PP

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