[In cases of the infliction of bodily harm or restraint for the purpose of arresting or retaking a person honestly and reasonably, but erroneously, supposed to be liable to be arrested or retaken, the person inflicting such harm or restraint is not justified by such belief, unless the state of facts in the existence of which he erroneously believed would, if it had really existed, have made it his legal duty to act as he did, or would have been such as to make his conduct an act of defence of his person or habitation.

Illustrations.

(1.) 1 A, under an insane delusion, kills B. If the delusion is such that its truth would justify him in doing so, his act is not a crime. The delusion would also be evidence that A did not know he was doing wrong even if its truth would not justify the act.

(2.) 2 A, making a thrust with a sword at a place where, upon reasonable grounds, he supposes a burglar to be, kills a person who is not a burglar. A is in the same situation as if he had killed a burglar.

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(3.) A abducts B, a girl under fifteen years of age, from her father's house, believing in good faith and on reasonable grounds that B is eighteen years of age. A commits the offence of abduction, although if B had been eighteen years of age she would not have been within the statute. (4.) A, in the last illustration, abducts B, in ignorance of her age, and

4

[M'Naghten's Case, 10 Cl. & Fin. 200.

2 Levet's Case, 1 Hale, 474.

3 R. v. Prince, L. R. 2 C. C. R. 151.

4 R. v. Prince, Ibid. See judgment of Brett, J., p. 169, and see p. 174. It has been doubted whether a person commits bigamy who contracts a second marriage under a bon â fide belief that the first husband or wife is dead. In R v. Turner, 9 Cox, C. C. 145, Martin, B., directed a jury that if a woman had an honest belief that her husband was dead she was not guilty of bigamy, and this ruling was followed by Cleasby, B., in R. v. Harton. 11 Cox, C. C. 670. In R. v. Gibbons, 12 Cox, C. C. 237, Brett, J., after consulting Willes, J., held (says the report) "that a bona fide belief that the husband was dead was no defence, unless the seven years had passed." In that case, however, the "bonâ fide belief” appears to have arisen solely from the fact that the woman had not heard of her husband for upwards of six years. It was thus a gratuitous belief, founded on ignorance It seems to me that if the belief was founded on positive evidence the case would be otherwise. Suppose, e.g., a woman saw her husband fall overboard in the middle of the Atlantic, and saw a boat go out to search for him, and return without him; suppose that she took out administration to his estate, heard nothing of him for five years, and then married again, would she be guilty of bigamy if by some strange chance he had escaped ? Surely not. I am informed that this view was taken by Denman, J., and Amphlett, J.A., in a case of R. v. Moore, tried at Lincoln Spring Assizes, 1877. I think the proviso in 24 & 25 Vict., c. 100, s. 57] R. SC. 161, s. 4 (b), (Art. 330) [ought clearly to be read not as

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[without making any inquiry about it. A commits the offence of abduction. (5.) A received into her house, not being a registered lunatic asylum, several persons to be medically treated, being persons who were in fact lunatics, though A honestly believed on reasonable grounds that they were not lunatics but sufferers under other disorders. Notwithstanding such a belief, A committed an offence against 8 & 9 Vict., c. 100, s. 14.

(6.) 2 A, a constable, honestly and on reasonable grounds believing B to have committed murder, and not being able otherwise to arrest him, shoots at him and kills him. A is justified. If A had been a private person his act would have been manslaughter at least.

(7.) 3 B, pretending by way of a practical joke to be a robber, presents an empty pistol at A and demands his money. A, believing that B really is a robber, kills B. A is justified.

(8.) (SUBMITTED.) A breaks into B's house in Cornwall, at 5.45 a.m., local mean time, supposing that it is past six, but forgetting that A's watch is set to London time. A commits burglary.]

(excluding the general common law principle stated in this Article, but as supplementing and completing it, by providing that a second marriage, after seven years' ignorance as to the life of the first husband or wife, shall not be criminal, although the party so marrying has no positive reason to believe, and perhaps does not believe, that the absent person is dead.]

And it has since been so held. In R. v. Tolson, L. R. 23 Q. B. D. 168, in which the question was reserved by Stephen, J., to obtain the decision of the Court in view of the conflicting opinions of single judges on the point, it was held by Lord Coleridge, C-J. Hawkins, Stephen, Cave, Day, A. L. Smith, Wills, Grantham and Charles, JJ. (Denman. Field, and Manisty, JJ., and Pollock and Huddleston, BB., dissenting), that a bonâ fide belief on reasonable grounds in the death of the husband at the time of the second marriage, afforded a good defence to an indictment for bigamy, although the second marriage took place within seven years of the time when she last knew of her husband being alive. [R. v. Bishop, L. R. 5 Q. B. D. 259.

22 Hale, P. C. 82, 85.

1 Hale, P. C. 474.]

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CHAPTER V.

1 PARTIES TO THE COMMISSION OF CRIMES – PRINCIPAL AND ACCESSORY.

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2 ARTICLE 35.

PRINCIPALS IN FIRST DEGREE.

[WHOEVER actually commits, or takes part in the actual commission of, a crime is a principal in the first degree, whether he is on the spot when the crime is committed or not; and if a crime is committed partly in one place and partly in another, every one who commits any part of it at any place is a principal in the first degree.

Illustrations.

(1.) A lays poison for B, which B takes in A's absence. A is a principal in the first degree.

(2.) 5 A steals goods from a ship, and lays them in a place at some distance, whence B, by previous concert, carries them away for sale. A and B are both principals in the first degree.

ARTICLE 36.

INNOCENT AGENT.

Whoever commits a crime by an innocent agent is a principal in the first degree.

1 [2 Hist. Cr. Law, ch. xxii, p. 221-241; Draft Code, ss. 71-74.]

2 S. D., Art. 35.

3 [Foster, 347-50, gives the history of the distinction between principals in the first and second degree. See also Hale, ch. xxii. 1 P. C. 233; ch. xxxiv. 1 P. C. 435, and ch. Iv. 612. 4 Foster, 349, says simply that A is "a principal," without mentioning the degree, but as no one has "aided" or "abetted," it would seem that he must be a principal in the first degree.

5 R. v. Kelly, 2 C. & K. 379.]

S. D., Art. 36.

Illustrations.

[(1.) 1A tells B, a child under seven, to bring him money belonging to C. B does so. A is a principal in the first degree.

(2.) 2 A, knowing a note to be forged, asks B, who does not know it to be forged, to get it changed for him. B does so, and gives A the money. A is a principal in the first degree.

(3.) 3 B, in the last illustration, knows that the note is forged. A is an accessory before the fact.

4 + ARTICLE 37.

PRINCIPALS IN THE SECOND DEGREE.

5 Whoever aids or abets the actual commission of a crime, either at the place where it is committed, or elsewhere, is a principal in the second degree in that crime.

Mere presence on the occasion when a crime is committed does not make a person a principal in the second degree, even if he neither makes any effort to prevent the offence or to cause the offender to be apprehended, but such presence may be evidence for the consideration of the jury of an active participation in the offence.

When the existence of a particular intent forms part of the definition of an offence, a person charged with aiding or abetting the commission of the offence must be shewn to have known of the existence of the intent on the part of the person so aided.

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Illustrations.

(1.) A, B, C, and D go out with a common design to rob. A commits the robbery; B stands by ready to help; C is stationed some way off to

1 [R. v. Manley, 1 Cox, C. C. 104.

2 R. v. Palmer, 1 Russ. Cr. 160.

R. v. Soares, R. & R. 25.J

S. D.. Art. 37.

[See cases in 1 Russ. Cr. 156-59. R. v. Kelly, R. & R. 421, perhaps marks the limit between a principal in the second degree and an accessory. In that case B stole horses and brought them to A, who was waiting half a mile off; A and B then rode away on them. It was held that A was an accessory before the fact. The distinction is now of no importance.

R. v. Coney and Others, L. R. 8 Q. B. D. 534. See especially the judgment of Cave, J., 536-43.] R. v. Curtley, 27 U. C. Q. B. 613.

7 [Foster, 350.]

[give the alarm if any one comes. A is a principal in the first degree, B, C, and D are principals in the second degree.

(2.) B is indicted for inflicting on C an injury dangerous to life with intent to murder. A is indicted for aiding and abetting B. A must be shewn to have known that it was B's intent to murder C, and it is not enough to shew that A helped B in what he did.

2 ARTICLE 38.

COMMON PURPOSE.

3 When several persons take part in the execution of a common criminal purpose, each is a principal in the second degree, in respect of every crime committed by any one of them in the execution of that purpose.

If any of the offenders commits a crime foreign to the common criminal purpose, the others are neither principals in the second degree, nor accessories, unless they actually instigate or assist in its commission.

Illustrations.

(1.) A constable and his assistants go to arrest A at a house in which are many persons. B, C, D, and others come from the house, drive the constable and his assistants off, and one of the assistants is killed, either by B, C, D, or one of their party. Each of the party is equally responsible for the blow, whether he actually struck it or not.

(2.) Three soldiers go to rob an orchard. Two get into a fruit tree. The third stands at the door with a drawn sword, and stabs the owner, who tries to arrest him. The men in the tree are neither principals nor accessories, unless all three came with a common resolution to overcome all opposition.

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(3.) Smugglers fight with revenue officers. In the fight a smuggler fires a gun which kills another smuggler. The gun was not fired at any of the revenue officers. The man who fired the gun is responsible for the act, but not his companions.

1 [R. v. Cruse, 8 C. & P. 546.]

2 S. D., Art. 38.

[See cases referred to in the Illustrations. See also Fost. 350-2; 1 Russ. Cr. 159-163, 759-67.

4 Sissinghurst House Case, 1st Resolution; 1 Hale, P. C. 462.

5 Plummer's Case, Foster, 353. More fully reported in Kelynge, 155 (edition of 1873). Lord Holt in his judgment fully explains the whole law.

6 Ibid. 352.]