45 46 Hale, Stephen, and Hawkins are more or less conflicting, it is believed that the following propositions state the law correctly: (1) Actual duress, consisting of threats which reasonably produce a well-grounded fear of immediate death or grievous bodily harm, is usually a defense to a criminal charge.47a 49 (2) Actual duress, consisting of threats of future personal injury, even death, is no defense.48 To constitute a defense, the duress must relate to a present impending injury. Duress, consisting of threats to murder, is no defense to a charge of perjury.5 50 (3) Actual duress, consisting of threats of injury to property, or destruction thereof, is no defense.51 "The only force that doth excuse, is a force upon the person, and present fear of death.”52 45 "A man can not even excuse the killing of another who is innocent, under a threat however urgent of losing his own life unless he comply." Opinion of Lord Hale in East's Crown L., 294. 46 "An act which, if done willingly, would make a person a principal in the second degree and an aider and abettor in a crime, may be innocent if the crime is committed by a number of offenders, and if the act is done only because, during the whole of the time in which it is being done, the person who does it is compelled to do it by threats on the part of the offenders instantly to kill him, or to do him grievous bodily harm if he refuses; but threats of future injury or the command of any one not the husband of the offender, do not excuse any offense." Steph. Dig. Crim. L. (5th ed.), art 32. See also People v. Repke, 103 Mich. 459, 61 N. W. 861. 47 "The question of the practicability of escape is to be considered, and that if the person thus acting under compulsion continued in the treasonable acts longer than was necessary, the defense pro timore mortis will not be available." Hawk. P. C., ch. 17, § 28n. 47a Seiler v. New York, 77 N. Y. 411. 48 Steph. Dig. Crim. L. (5th ed.), art. 32. 49 Bain v. State, 67 Miss. 557, 7 So. 408; Ross v. State, 169 Ind. 388, 82 N. E. 781, Derby's Cases, 253. 50 People v. Repke, 103 Mich. 459, 61 N. W. 861. 51 Respublica V. McCarty, 2 Dall. (Pa.) 86, 1 L. ed. 300, Beale's Cases 364; United States v. Vigol, 2 Dall. (U. S.) 346, 1 L. ed. 409, Fed. Cas. No. 16621. 52 McGrowther's Case, Fost. C. C. 13, Beale's Cases 273. § 94. Actual duress of necessity in other cases.—“An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided."53 Lord Mansfield states: "Wherever necessity forces a man to do an illegal act,-forces him to do it,-it justifies him, because no man can be guilty of a crime without the will and intention of his mind."54 According to Lord Bacon, "If a man steal viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or bark, and one of them get to some plank, or on the boat side to keep himself above water, and another, to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but is justifiable." 1955 While it has been said by Lord Hale: "If a person, being under necessity for want of victuals, or clothes, shall upon that account clandestinely and animo furandi steal another man's goods, it is felony and a crime by the laws of England punishable with death."56 Lord Chief Justice Coleridge thus disposes of the matter: "If Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbor, it certainly is not law at the present day."57 With respect to the foregoing views it is undoubtedly true 53 Steph. Dig. Crim. L. (5th ed.), art. 33. 54 Lord Mansfield in Rex V. Stratton, 21 How. St. Tr. 1045, 1223. Maxims, reg. 5, 55 Bacon's Beale's Cases 356. 561 Hale P. C. 54. 57 Lord Chief Justice Coleridge in Reg. v. Dudley, 14 Q. B. Div. 273, 15 Cox Cr. C. 624, Beale's Cases 357, Derby's Cases 261. that Lord Bacon's, both as regards the stealing of the viands and also as regards the drowning of the castaway, is unsound; while Lord Hale's, as regards the guilt of the accused, and Lord Chief Justice Coleridge's, correctly state the law.58 It has been held that a sailor on a vessel may not kill a passenger to save himself.59 And where three persons were cast away on the high seas and two of them killed the third and fed on his body, believing it necessary to save their lives, they were held guilty of murder.0 Necessity is a defense where a person joins a rebellion to save his life; or where owing to stress of weather the captain of a vessel is compelled to take refuge in a proscribed port;62 or where the crew of a vessel are forced to depose her master.63 § 95. Inability to perform a legal duty.-Inability to perform a legal duty may constitute a defense. Where a person is complained against for allowing his vehicle to stop in a street for a longer period than allowable under an ordinance, and the evidence shows that he was delayed unavoidably owing to the crowding of other vehicles in the street, the compulsion is a good defense; and so where a person is unable to repair a highway owing to vis major, as where the materials for doing so are swept into the sea. Again, circum 64 58 Brewer v. State, 72 Ark. 145, 78 S. W. 773, Derby's Cases 254. In this case an instruction "that, though one may lawfully kill an assailant if it be necessary to save his own life, he can not lawfully slay an innocent third person, even to save his own life, but ought to die himself, rather than take the life of an innocent person," was sustained. 59 United States V. Holmes, Fed. Cas. No. 15383, 1 Wall. Jr. (U. S.) 1. 60 Reg. v. Dudley, (1884), 14 Q. B. Div. 273, 15 Cox Cr. C. 624, Derby's Cases 261, Beale's Cases 357. 61 McGrowther's Case. Fost. Cr. C. 13, Beale's Cases 273; Respublica v. McCarty, 2 Dall. (Pa.) 86, 1 L. ed. 300, Beale's Cases 364. 62 The Brig William Gray, 1 Paine (U. S.) 16, Fed. Cas. No. 17694. 63 United States v. Ashton, 2 Sumn. (U. S.) 13, Fed. Cas. No. 14470. 64 Commonwealth v. Brooks, 99 Mass. 434, Beale's Cases 364. 65 Reg. v. Bamber, 5 Q. B. 279, Beale's Cases 356. stances may justify working on Sunday, though a statute prohibits labor on that day.66 It is essential, however, that the necessity be actual. It has been held that the necessity was not actual in a case where a person cut his wheat on Sunday though it was overripe, and he was poor and had to depend upon his neighbor for the use of a cradle.67 66 Commonwealth Mass. 76. ! V. Knox, 6 67 State v. Goff, 20 Ark. 289. § 100. The general rule.-As a general rule, criminal intent is an essential element of crime. The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed.1 It is a sacred principle of criminal jurisprudence that the intention to commit the crime is of the essence of the crime.2 § 101. Exceptions to the general rule.—The general rule, stated in the next preceding section, is applicable to all com 1 Reg. v. Tolsen, L. R., 23 Q. B. Div. 168, Beale's Cases 286, Derby's Cases 133. See also Commonwealth v. Mixer, 207 Mass. 141, 93 N. E. 240 20 Ann. Cas. 1152; People v. Connors, 253 Ill. 266, 97 N. E. 643, 39 L. R. A. (N. S.) 143n, Ann. Cas. 1913A, 196n. 2 State v. Blacklock (N. Mex.), 167 Pac. 714. |