(b) of fact. Ignorance of law may, however, be relevant in considering the question of intention: e. g., A., a poacher, sets wires for game; B., a gamekeeper, under the authority of an Act of Parliament, of the existence of which A. is ignorant, seizes these wires; A. forcibly takes the wires from B., and is tried for robbery. A.'s ignorance of the Act is relevant to the question whether he took the wires under a claim of right (c). Also, in the interpretation of a statute which forbids some act of a continuous nature, a reasonable time is presumed to be allowed for the discontinuance of the act so forbidden, and the ignorance of the agent of the passing of the statute is a fact relevant to the question whether his discontinuance was within such reasonable time or not: e. g., A. is in command of a ship on a voyage, which during its continuance is rendered unlawful by the passing of an Act; A. continues the voyage in ignorance of the Act, and of its having been passed. The fact of A.'s ignorance is relevant to the question whether the particular voyage in which A. was engaged was one to which the Act was intended by the legislature to apply (d). Ignorance of fact will or will not excuse, according as the original intention was or was not lawful: provided always that such ignorance be neither wilful nor negligent, in which cases it will not Thus: excuse. (a) A. makes a thrust with a sword at a spot where he has reasonable grounds to sup (c) R. v. Hale, 3 C. & P. 409; cf. R. v. Read, Car. & Mar. 308. (d) Burns v. Nowell, L. R., 5 Q. B. D. 444; cf. Thompson v. Farrer, L. R., 9 Q. B. D. 444. pose a burglar to be, and kills B. who (b) A., intending to do grievous bodily harm (c) A. abducts B., a girl under sixteen, in An accident, in order to form a valid excuse, must (vi) Accident. have happened in the performance of some lawful act; for a man is not exempted from punishment, if he is engaged at the time in some criminal act, or if he is guilty of a want of due skill and caution. Thus: (a) A., in the due pursuit of his employment as (b) A., while committing a burglary, acci- (vii) Com- If a person commits a crime, under threats of instant death or grievous bodily harm, continuing during the whole time of the commission of such an act, he will in most cases not be held liable: but this non-liability does not extend to cases where the death of an innocent person is the result of the act in question. (e) Levet's case, 1 Hale, 474. (g) R. v. Prince, L. R., 2 C. C. R. 154. pulsion. (viii) Selfdefence. (ix) Provocation. Thus, A., B. and C., engaged in a rebellion, compel D. to join the rebel army, and to do duty as a soldier by threats of death, continuing during the whole of his service: D.'s act is not a crime (h). The violence threatened must not, however, be future, and it must be personal, for the mere apprehension of injury to one's goods or property is not sufficient. The intentional infliction of death or bodily harm is not a crime, when it is inflicted by any person in order to defend himself or any other person from unlawful violence; but he must inflict no greater injury than he in good faith and upon reasonable grounds believes to be necessary. If a person is unlawfully assaulted by another with a deadly weapon, without any fault of his own, it is his duty to retreat as far as he can with safety to himself, before inflicting death or grievous bodily harm upon the person assaulting him; e.g., A., a madman, violently attacks B. in such a manner as to cause instant danger to B.'s life. B. may kill A., though A. is not committing any crime (¿). Provocation is a plea which may be raised in mitigation of punishment in the cases of homicide and assault, but is chiefly important in the former case in determining whether the slaying amounts to the crime of murder or merely of manslaughter. If the act which causes death is done in the heat of passion, caused by provocation, the agent is guilty of manslaughter only, unless the provoca (h) R. v. M'Growther, 18 St. Tr. 394. (i) Steph. Dig. of the Crim. Law, pp. 136-138. tion was sought by the offender as an excuse for killing for doing bodily harm (k). Such provocation may consist of— (a) An assault and battery of such a nature as to inflict bodily harm or great insult; or, (b) The sight of certain acts of immorality committed on one's wife or child; or, (c) An unlawful imprisonment. But in all these cases, in order to reduce the homicide to the crime of manslaughter, the person provoked must at the time of the commission of the act be deprived of the power of self-control by the provocation which he has received. It is uncertain to what extent the above acts of provocation will excuse those who are with the person provoked at the time, and to his friends who, in the case of a mutual combat, take part in the fight for his defence (1). The consent of the party injured may in some (x.) Consent. cases be pleaded in bar of punishment, where the consent is freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which he consents. Thus, everyone has a right to consent to the infliction of a bodily injury in the nature of a surgical operation upon himself or any child under his care and too young to exercise a reasonable discretion in the matter: and everyone has a right to consent to the infliction upon himself of bodily harm not amounting to a maim (m). (k) Vide Steph. Dig. of the Crim. Law, pp. 161-165. (7) For further discussion of this subject, see 1 Russ. Cr. (5th ed.), p. 704. (m) Maim, or mayhem, is defined as a bodily harm whereby H. C But no one has the right to consent to the infliction upon himself of— (a) Death; (b) An injury likely to cause death, except in the case of a surgical operation; (c) Bodily harm amounting to a maim for any purpose injurious to the public; (d) Bodily harm, inflicted in such a manner as to amount to a breach of the peace, or in a prize fight, or other exhibition calculated to draw together disorderly persons. The following cases may be taken in illustration of the above rules : (1) A. and B. agree to fight a duel with deadly weapons. If either is killed or wounded his consent is immaterial (n). (2) A. gets B. to cut off A.'s hand in order that A. may avoid labour and be enabled to beg. Both A. and B. commit an offence (o). (3) A prize fight is illegal, and all persons aiding and abetting therein are guilty of assault; the consent of the principals to the interchange of blows is no answer to the charge (p). The welfare of the state has served as a pretext a man is deprived of the use of any member or sense which he can use in fighting, or by the loss of which he is generally and permanently weakened; but a bodily injury is not a maim merely because it is a disfigurement. Thus, to knock out a front tooth is, to cut off a man's nose is not, a maim. (n) R. v. Barronet, Dear. 51. (o) 1 Inst. 107, a, b. (p) Vide R. v. Coney, L. R., 8 Q. B. D. 534. Cf. R. v. Billingham, 2 C. & P. 234, and R. v. Perkins, 4 C. & P. 537. |