Page:The American Cyclopædia (1879) Volume V.djvu/493

 CRIMINAL LAW 489 to mention the cases of grand larceny, or stealing above the value of 12 pence ; em- bezzlement of a master's goods by a ser- vant; burning stacks of corn, hay, &c., in the night time ; killing horses, sheep, and other domestic animals; breaking down dikes or bridges, or breaking away the banks of fish ponds ; cutting down trees in an avenue, or growing in an orchard ; the malicious tearing or defacing of the garments of a person pass- ing in the street ; *all of which, and various other acts of no greater degree of criminality, were thus punished. The origin of this sever- ity in the majority of such cases was no doubt owing to the great prevalence of a particular grievance in some locality, and, according to the former mode of reasoning, the frequency of an evil called for increased severity of pun- ishment ; but it has happened that when the emergency has ceased the law remained. Com- mon humanity was outraged by the contin- uance of such a system of criminal law in a civilized community; public attention was at last directed to the necessity of reform, and important modifications were made by several different statutes, beginning with 7 and 8 George IV., c. 27 (1827), and leading to a com- plete revision in 24 and 25 Victoria (1861), by which capital punishment is abolished in most cases. The criminal law of the United States closely followed that of England, except that some of the barbarous accompaniments of the death penalty were not adopted, and the pen- alty itself was not inflicted except for the few offences deemed most heinous. (See CAPITAL PUNISHMENT.) It remains to speak of some principles recognized in criminal law as to the nature of crime in respect to individuals and to the community, the degree of guilt of the person accused, and the rules of evidence by which the offence is proved. I. It is common to divide wrongs into private and public inju- ries, and it has been erroneously supposed that when the offence is of such magnitude as to become the subject of a public prosecution, the private right is merged. As respects some lesser crimes, as assault and battery, obtaining money by false pretences, libel, and the like, there is a right of private action independent of the proceeding by indictment, and it is not necessary that the individual injured should procure a criminal conviction at all. In cases of larceny, robbery, and other wrongs affect- ing property, it is generally assumed that there must first be a conviction of the crime before there can be a civil suit for a recovery of the property taken, or damages in lieu thereof. The only reason assigned for this in the Eng- lish law is, that the injured party may thereby be more strongly induced to procure a convic- tion of the offender for the benefit of society. This reason is of no force in this country, where public prosecutors are appointed, and the doctrine which rests upon it is consequent- ly not accepted. In England, as felony worked a forfeiture of the personal estate of the con- vict, including estates in land for life or a term of years, there was usually nothing to look to as an indemnity for private injury; yet the right of prosecuting for such injury after con- viction of the offender is admitted in some old cases ; and so after acquital, if there has been no collusion, an action for damages can be maintained (12 East., 409). II. As to the degree of guilt of the persons accused. This involves several inquiries, the first of which is capacity of mind. There must be the mens doli capax ; for although ignorance is not in general admitted as an excuse for crime, yet this is to be understood of such only as have sufficient understanding to distinguish between right and wrong. The precise limit of capa- city cannot be defined. A vicious life undoubt- edly produces hardness and insensibility, and there is often to be seen such natural depravity as is wholly inconsistent with the existence of any moral discrimination. Yet the law does not take into account any such perversity of nature, if there is any intellectual power, which is rather vaguely denominated reason. In what degree this power must exist is not sus- ceptible of being defined by any general rule, and is often the subject of perplexing doubt in the application of the rule to particular cases. Children before the age of discretion are ex- empt by law from responsibility for crime, but the exact period when such discretion shall be pronounced to commence is not fixed. By the Saxon laws the age of 12 was fixed as the earliest possible development of legal under- standing ; between that and the age of 14 there might be guilt according to the actual capacity. But the rule of the English law now is, that capacity is not to be judged by age in any case, except that under the age of 7 a child cannot be held guilty of felony ; but there is a reported case of a child of 8 years of age who was convicted of arson and hanged ; so a girl of 13 was convicted and executed for killing her mistress. In all cases capacity is to be judged by actual proof. Idiocy and lu- nacy excuse from the guilt of crime. If there was a total want of reason at the time the act was committed, whether the deprivation be permanent or temporary, the law acquits from all guilt ; but if there be partial reason, as if there is thought and design, or faculty to distin- guish the nature of actions, then there will be legal responsibility for every act. Intoxication is not admitted as an excuse for criminal mis- conduct. In this respect the rule of the com- mon law is different from that of the civil law. By the latter, capital punishment was never inflicted for acts committed in a state of ebriety. The second ground of exemption is where there was no criminal intent, but the act has been committed either by accident, mistake, or necessity. Accident excuses, ex- cept where it has happened when a man was engaged in the commission of some unlawful act. A distinction is also made in respect to such unlawful act, as whether it was what is