Page:Harvard Law Review Volume 12.djvu/301

281 RECENT CASES. 28 1 of an attempt nor of an assault with intent to commit rape. Reg. v. Phillips, 8 C. & P. 736; State V. Sam, Winston, 300. In some American jurisdictions it is held that the presumption of incapacity is rebuttable by evidence of the boy's actual ability. Wtl- Hams V. State, 14 Ohio, 222. And in Massachusetts it has been decided that though the boy cannot be convicted of rape, he can be convicted of an assault with intent to commit rape. Cotnmonwealth v. Green, 2 Pick. 3S0. This is on the ground that the law does not mean that the boy is actually incapable of committing rape, but that he is too young to be punished for such a serious offence. This is sound reasoning, and the present case, therefore, seems to be correct on principle. Criminal Law — Constructive Grand Larck.ny. — The prosecutor, a mining company, had missed from its reduction works, at various times for several months, small quantities of the product. The defendani was later found with a large quantity in his possession. ffelJ, that an indictment for a single grand larceny is proper. State V. Maiidich, 54 Pac. Rep. 516 (Nev.). Several sheep of several owners were stolen at one time. Held, a single offence of grand larceny. Ackerman v. State, 54 Pac. Rep. 288 (Wyo.). See Notks. Criminal Law — Plkading. — A statute prohibited the sale of liquor " except as hereinafter provided." In a later clause it was provided that the act did not apply to sales by manufacturers or wholesale dealers in quantities 6f over five gallons, if made in good faith. Held, that an indictment framed on this statute need not negative the ex- ception, since it is contained in a clause separate from the enacting clause. Common' wealth V. Risiier, 47 S. W. Rep. 213 (Ky.). By the test here laid down it depends entirely upon the location of the excepted matter in the statute whether it must be negatived in the indictment. If the exception is stated in the enacting clause, it must be negatived ; but if it is in a separate clause, whether referred to in the enacting clause or not, it need not be negatived. Some authorities make an exception where the separate clause is referred to in the enacting clause. King V. Pratten, 6 T. R. 559 ; Vavasour v. Ormrod, 6 B. & C. 430. The true inquiry, however, seems to l)e whether the separate clause is to be treated as part of the definition of the offence or was only Intended to work an exemption from an already fully stated offence. I Bish., Crim. Proc, 4th ed., § 631. To this end it seems that a study of the intrinsic nature of the excepted matter with reference to the whole statute would be necessary to a correct solution of the difficulty. The result in the principal case, therefore, appears to have been reached by a technical rather than a logical test, and, in view of the sub- ject-matter, its correctness seems doubtful. Him v. State, i Ohio St. 15; State v. O'Donnell, 10 R. I. 472. Criminal Law — Sf.lf-Defence — Burden of Proof. — On a criminal prosecu- tion for homicide, held, that the defendant must establish a justification of self-defence by a preponderance of the evidence. State v. Ballou, 40 Atl. Rep. 861 (R. I.). The decision seems unsound on principle, although it has the support of some au- thority. State V. Welsh, 29 S. C. 4; People v. Milgate, 5 Cal. 127. In a criminal prose- cution the State must prove the defendant guilty beyond a reasonable douljt, and yet, under the rule here adopted, he may be convicted although there remains a doubt which he has produced by evidence which raises a question as to his justification, but does not amount to proof of it. The error has arisen from a failure to distinguish between the effect of an affirmative plea in a civil action, and a justification in a criminal prose- cution. A defendant in a civil action admits by an affirmative plea that he has injured the plaintiff. But a defendant in a criminal prosecution does not admit the commission of a crime by acknowledging he did the act for which he is held, and the prosecution does not establish his guilt beyond a reasonable doubt, until it disproves to that extent any excuse he may have raised, the existence of which would make him criminally irre- sponsible. People V. Riordan, 117 N. Y. 71. Criminal Law — Stenographer in Grand Jury Room. — The defendant in a criminal case pleaded in abatement that a stenographer had been present in the grand jury room while the evidence was given upon which the indictment was found. On demurrer, held, that the plea is bad. State v. Brewster, 40 At!. Rep. 1037 (Vt.). Although the decisions upon the point are to some extent conflicting, this case is supported by the great weight of modern authority, and is correct historically and upon principle. Cf. Earl of Shaftesbury's Case, 8 How,, St. Tr, 759, 771-5. See 11 Harv. Law Rev. 411. Equity — Dead Bodies. — Respondent owned a burial lot, and removed the re- mains of her step-son lawfully buried therein. Complainant, the heir of deceased, brings this bill to compel respondent to return the body to its former grave. On de- murrer, held, that the bill States a good case, Gardner v. Swan Point Cemetery, 40 Atl. Rep. 871 (R. I.).