him, he was brought a second time before the justice, and then he repeated his former confession:-upon which he was committed to gaol. On the trial, evidence was given of the declarations before mentioned to have been made before the coroner and his jury, and before the justice of the peace; and of many declarations to the same purpose which the boy made to other people after he came to gaol, and even down to the day of his trial; for he constantly told the same story in substance, commonly adding that the devil put him upon committing the fact. Upon this evidence, with some other circumstances tending to corroborate the confessions, he was convicted. The judges having taken time to consider this report, unanimously agreed; 1. That the declarations stated in the report were evidence proper to be left to the jury. 2. That, supposing the boy to have been guilty of this fact, there were so many circumstances stated in the report which were undoubtedly tokens of what Lord Hale calls a mischievous discretion, that he was certainly a proper subject for capital punishment, and ought to suffer; for it would be of very dangerous consequence to have it thought that children may commit such atrocious crimes with impunity. That there are many crimes of the most heinous nature, such as (in the present case) the murder of young children, poisoning parents or masters, burning houses, &c., which children are very capable of committing; and which they may in some circumstances be under strong temptations to commit; and therefore, though the taking away the life of a boy of ten years old might savour of cruelty, yet, as the example of that boy's punishment might be a means of deterring other children from the like offences, and as the sparing the boy, merely on account of his age, would probably have a quite contrary tendency; in justice to the public, the law ought to take its course; unless there remained any doubt touching his guilt. In this general principle all the judges concurred: [*10 but two or three of them, out of great tenderness and caution, advised the chief justice to send another reprieve for the prisoner; suggesting that it might possibly appear, on further inquiry, that the boy had taken this matter upon himself at the instigation of some person or other, who hoped by this artifice to screen the real offender from justice. Accordingly the chief justice granted one or two more reprieves; and desired the justice of the peace who took the boy's examination, and also some other persons, in whose prudence he could confide, to make the strictest inquiry they could into the affair, and report to him. At length he, receiving no further light, determined to send no more reprieves, and to leave the prisoner to the justice of the law at the expiration of the last; but, before the expiration of that reprieve, execution was respited till further order, by warrant from one of the secretaries of state: and at the summer assizes, 1757, the prisoner had the benefit of His Majesty's pardon, upon condition of his entering immediately into the sea service.(z)

It is said that an act making a new felony does not extend to an infant under the age of discretion, namely, fourteen years old(a) and that general statutes which give corporal punishment are not to extend to infants; and that, therefore, if an infant be convicted in ravishment of ward, he shall not be imprisoned, though the statute of Merton, c. 6, be general in that case (b) But this must be understood, where the corporal punishment is, as it were, but collateral to the offence, and not the direct intention of the proceeding against the infant for his misdemeanor; in many cases of which kind the infant under the age of twenty-one shall be spared, though possibly the punishment be enacted by Parliament.(c)

But where a fact is made felony or treason, it extends as well to infants, if above fourteen years, as to others. And this appears by several Acts of Parliament, as by 1 Jac. 1, c. 11, (d) of felony for marrying two wives, in which there was a special exception of marriages within the age of consent, which in females is twelve, in males fourteen years; so that if the marriage were above the age of consent, though within the age of twenty-one years, it was not exempted from the penalty.

(z) York's case, Fost. 70, et seq.

(4) Hale 706; Eyston and Studde's case, Plowd. Com. 465, a. And see 1 Hale 21, 22; Bac. Abr. Infancy (H).

(b) Bac. Abr. Infancy (H); Plowd. 364; 1 Hale 21. (e) Bac. Abr. Infancy (H); 1 Hale 21.

(d) Repealed, 9 Geo. 4, c. 31, s. 1.

So by the 21 Hen 8, c. 7,(e) concerning felony by servants that embezzle their masters' goods delivered to them, there was a special provision that it should not extend to servants under the age of eighteen years, who certainly had been within the penalty, if above the age of discretion, namely, fourteen years, though under eighteen years, unless there had been a special provision to exclude them. And so by the 12 Ann. c. 7,(e) (by which it was made felony without benefit of clergy to steal goods to the value of 40s. out of a house, though the house were not broken open), where apprentices who should rob their masters were excepted out of the Act.(f) *11] dence respite the execution in order to get a pardon: and it is said that if an infant apparently wanting discretion be indicted and found guilty of felony, the justices themselves may dismiss him without a pardon.(g) But this authority to dismiss him, must be understood of a reprieve before judgment; or of a case where the jury find the prisoner within the age of seven years, or not of sufficient discretion to judge between good and evil.(h)

In many cases of crimes committed by infants, the judges will *in pru

II. It has been considered, that there are four kinds of persons who may be said to be non compos: 1. An idiot. 2. One made non compos by sickness. 3. A lunatic. 4. One that is drunk.(i) But it should be observed, that every person at the age of discretion is presumed sane, unless the contrary is proved: and if a lunatic has lucid intervals, the law presumes the offence of such person to have been committed in a lucid interval, unless it appears to have been committed in the time of his distemper.(k)

An idiot is a fool or madman from his nativity, and one who never has any lucid intervals and such an one is described as a person that cannot number twenty, tell the days of the week, does not know his father or mother, his own age, &c.: but these are mentioned as instances only; for whether idiot or not is a question of fact for the jury.(1) One who is surdus et mutus a nativitate is in presumption of law an idiot, and the rather because he has no possibility to understand what is forbidden by law to be done, or under what penalties: but if it appear that he has the use of understanding, which many of that condition discover by signs to a very great measure, then he may be tried and suffer judgment and execution, though great caution should be used in such a proceeding.(m)

(e) Repealed, 7 & 8 Geo. 4. c. 27.

(f) Bac. Abr. Infancy (H); Co. Lit. 147: 1 Hale 21, 22.

(g) 35 Hen. 6, 11 and 12.

(h) 1 Hale 27; 1 Hawk. P. C. c. 1, s. 8. And, quære, whether in any case of an infant convicted by a jury, the judge would take upon himself to dismiss him. It is submitted that the regular course would be to respite execution, and recommend the prisoner for a pardon.

(i) Co. Lit. 247; Beverley's case, 4 Co. 124.

(k) 1 Hale 33, 34.

(1) Bac. Abr. Idiots, &c. (A.); Dy. 25; Moor 4, pl. 12; Bro. Idiot 1 ; F. N. B. 233. (m) 1 Hale 34. And see the note (0) where it is said that according to 43 Assis. pl. 30, and 8 Hen. 4, c. 2, if a prisoner stands mute, it shall be inquired whether it be wilful, or by the act of God; from whence Crompton infers that if it be by the act of God, the party shall not suffer: Crompt. Just. 29, a. But if one who is both deaf and dumb, may discover by signs, that he hath the use of understanding, much more may one who is only dumb, and consequently such a one may be guilty of felony. It may be observed, that from the humane exertions of many ingenious and able persons, and from the extensive charitable institutions for the instruction of the deaf and dumb, many of those unfortunate people have at the present day a very perfect knowledge of right and wrong. In Steel's case, 1 Leach 451, a prisoner who could not hear, and could not be prevailed upon to plead, was found mute by the visitation of God, and then tried, found guilty, and sentenced to be transported. And in Jones's case, 1 Leach 102, where the prisoner (who was indicted on 12 Ann. c. 7, for stealing in a dwelling-house) on being put to the bar appeared to be deaf and dumb, and the jury found a verdict, Mute by the visitation of God;" after which a woman was examined upon her oath, to the fact of her being able to make him understand what others said, which she said she could do by means of signs, such prisoner was arraigned, tried, and convicted of the simple larceny. The proper course in such cases is, 1. To swear a jury to determine whether the prisoner be mute of malice or by the visitation of God. 2. Whether he be able to plead. 3. Whether he be sane or not on which issue the question is, or whether he is of sufficient intellect to comprehend the course of the proceedings on the trial so as to be able to make a proper defence: Rex

*A person made non compos mentis by sickness, or, as it has been sometimes expressed, a person afflicted with dementia accidentalis vel adventitia, is excused [*12 in criminal cases from such acts as are committed while under the infiuence of his disorder.(n) Several causes have been assigned for this disorder; such as the distemper of the humors of the body; the violence of a disease, as fever or palsy; or the concussion or hurt of the brain: and, as it is more or less violent, it is distinguishable in kind or degree, from a particular dementia, in respect of some particular matters, to a total alienatiou of the mind, or complete madnesss.(o)

A lunatic is one laboring also under a species of the dementia accidentalis vel adventitia, but distinguishable in this, that he is afflicted by his disorder only at certain periods and vicissitudes; having intervals of reason. Such a person during his frenzy is entitled to the same indulgence as to his acts, and stands in the same degree with one whose disorder is fixed and permanent.(p) The name of lunacy was taken from the influence which the moon was supposed to have in all disorders of the brain; a notion which has been exploded by the sounder philosophy of modern times.

With respect to a person non compos mentis from drunkenness, a species of madness which has been termed dementia affectata, it is a settled rule, that if the drunkenness be voluntary, it cannot excuse a man from the commission of any crime.(7) but on the contrary must be considered as an aggravation of whatever he does amiss.(r) Yet if a person, by the unskillfulness of his physician, or by the contrivance of his enemies, eat or drink such a thing as causes frenzy, this puts him in the same condition with any other frenzy, and equally excuses him; also, if by one or more such practices an habitual or fixed frenzy be caused, though this madness was contracted by the vice and will of the party, yet the habitual and fixed frenzy caused thereby puts the man in the same condition as if it were contracted at first involuntarily.(s) And, though voluntary drunkenness cannot excuse from the commission of crime, yet where as upon a charge of murder, the material question is, whether an act was premeditated or done only with sudden heat and impulse, the fact of the party being intoxicated has been holden to be a circumstance proper to be taken into consideration.(t)1

. Pritchard, 7 C. & P. 303 (32 E. C. L. R.), Alderson, B.; Rex v. Dyson, Ibid. 305, n. (a), Parke, B.; s. c. 1 Lewin 64. In Rex v. Pritchard, the jury were sworn on each of the three issues separately. See Rex v. Dyson, for the form of the oath administered to the interpreter. See Thompson's case, Lewin 137, where the prisoner being deaf and dumb, but able to read, the indictment was handed to him with the usual questions written upon paper, and he wrote his plea on paper. The jurors' names were then handed to him, with the question, "whether he objected to any of them?" and he wrote for answer, "No." The judge's note of the evidence of each witness was handed to him, and he was asked in writing, if he had any questions to put. In a case of misdemeanor, after a jury had found that the prisoner was mute by the visitation of God, but was of sound mind, his counsel was permitted to plead not guilty for him, and the trial proceeded in the usual manner, and the evidence was not interpreted to the prisoner: Reg. v. Whitfield, 3 C. & K. 121, Williams, J. Where a prisoner, on being brought up to be arraigned, stands mute, or it appears questionable whether he be sane or not, the proper course is to swear a jury to try the question, as it is for them and not for the court to decide whether the prisoner stands mute of malice, or is insane: Reg. v. Israel, 2 Cox C. C. 263.

(n) 1 Hale 30; Bac. Abr. Idiots (A).

(p) 4 Co. 125; Co. Lit. 247; 1 Hale 31.

(g) Co. Lit. 247; 1 Hale 32; 1 Hawk. P. C c. 1, s. 6.

(0) 1 Hale 30.

(r) 4 Blac. Com. 26; Plowd. 19; Co. Lit. 247. Nam omne crimen ebrietas incendit et detegit. And see Beverley's case, 4 Co. 125.

(8) 1 Hale 32.

(f) By Holroyd, J., in Rex. v. Grindley, Worcester Sum. Ass. 1819, MS. But in a case of murder by stabbing with a bayonet, where Rex v. Grindley was relied upon, Park, J. J. A., in the presence of Littledale, J., said, "highly as I respect that late excellent judge (Holroyd), I differ from him, and my brother Littledale agrees with me. He once acted upon that case but afterwards retracted his opinion, and there is no doubt that that case is not law." Rex v. Carroll, 7 C. & P. 145 (32 E. C. L. R.).

The doctrine of the American cases accords with the text, and what follows. Drunkenness is no excuse for crime: State v. Harlowe, 21 Mo. 444; Mercer v. State, 17 Geo. 146: Carter v. State, 12 Texas 500; People v. Robinson, 1 Parker C. R. 649; People v. Willey, 2 Ibid. 19; State v. John, 8 Iredell 330; State v. Bullock, 13 Ala. 413; Schaller

*So in a case of maliciously stabbing, a very learned judge observed, that *13] with regard to the intention, drunkenness might perhaps be adverted to according to the nature of the instrument used. If a man used a stick, a jury would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as they would if he had used a different kind of weapon; but where a dangerous instrument was used, which, if used, must produce grievous bodily harm, drunkenness could have no effect on the consideration of the malicious intent of the party.(u) So drunkenness is often very material where the question is as to the intent with which an act was done. On an indictment for inflicting a bodily injury dangerous to life, with intent to murder, it appeared that the prisoners were both very drunk at the time, and Patteson, J., told the jury, that "although drunkenness is no excuse for any crime whatever, yet it is often of very great importance in cases where it is a question of intention. A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of very great violence."(v) So where a prisoner was indicted for shooting with intent to murder, and he was shown to have been intoxicated shortly before he fired the shot; Coleridge, J., told the jury, that "drunkenness is ordinarily neither a defence nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable, unless the intoxication was such as to prevent his restraining himself from committing the act in question, or to take away from him the power of forming any specific intention."(w) And where, on an indictment for attempting to commit suicide, it appeared that the prisoner had thrown herself into a well, and the witness who proved this, stated that at the time she did so, she was so drunk as not to know what she was about; Jervis, C. J., said, "If the prisoner was so drunk as not to know what she was about, how can you say that she intended to destroy herself."(x) So drunkenness may be taken into consideration in cases where what the law deems sufficient provocation has been given, because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger excited by the previous provocation, and that passion is more easily excitable in a person when in a state of intoxication than when he is sober.(y) So (u) Rex v. Meakin, 7 C. & P. 297 (32 E. C. L. R.), Alderson, B. (v) Reg. v. Cruse, 8 C. & P. 541 (34 E. C. L. R.). (w) Reg. v. Monkhouse, 4 Cox C. C. 55.

(x) Reg. v. Moore, 3 C. & K. 319.

(y) Rex v. Thomas, 7 C. & P. 817 (32 E C. L. R.), Parke, B.; Pearson's case, Lewin 144, Park, J. J. A.

v. State, 14 Mo. 502; United States v. McGlue, 1 Curt. 1; State v. Mullen, 14 La. Ann. 570; Tyra v. Comm., 2 Met. (Ky.) 1; Kenny v. People, 31 N. Y. 330; Smith v. Comm., 1 Duvali 224; O'Harra v. State, 14 Ind. 420; Warren v. Comm., 1 Wright 45; State v. Avery, 44 N. H. 392; Nichols v. State, 8 Ohio (N. S.) 435; People v. Rogers, 18 N. Y. 9; State v. Cross, 27 Mo. 332; Gallicker v. Comm., 2 Duvall 163; Bailey v. State, 26 Ind. 422; McIntyre v. People, 38 Ill. 514; State v. Schingen, 20 Wis. 74; State v. Garvey, 11 Minn. 154; State v. Hundley, 46 Mo. 414; Real v. People, 42 N. Y. 270; Friery v. People, 54 Barb. 319; 2 Keyes 424; Bradley v. State, 31 Ind. 492; Lanergan v. People, 50 Barb. 266; Shannahan v. Comm., 8 Bush 464.

Yet it is always an element for the consideration of the jury where the law requires deliberation or a particular intent: Pennsylvania v. McFall, Add. 247; Golden v. State, 25 Geo. 527; Jones v. State, 29 Ibid 594; Pigman v. State, 14 Ohio 555; Kessy v. State, 35 Ill. 518; Mooney v. State, 33 Ala. 419; Dawson v. State, 16 Ind. 428; Pirth v. State, 4 Humph. 663; People v. Belencia, 21 Cal. 544; People v. King, 27 Ibid. 507; People v. Eastman, 4 Kernan 562; People v. Robinson, 2 Parker C. R. 235; People v. Hammill, Ibid. 223; Jones v. Comm., 25 P. F. Smith 403; State v. Bell, 29 Iowa 316; Kriel v. Comm., 5 Bush 362; Comm. v. Hart, 2 Brews. 546; Roberts v. People, 19 Mich. 401; Curry v. Comm., 2 Bush 67; O'Brien v. People, 48 Barb. 274. It has been held, however, that intoxication at the time of committing a homicide, is not entitled to any weight in determining whether the provocation was such as to reduce the crime from murder to manslaughter Comm. v. Hawkins, 3 Gray 463. But see State v. McCants, 1 Spear 384. When, however, an habitual or fixed frenzy is produced by drunkenness in cases of delirium tremens and mania-a-potu, or whenever there is actual insanity, though the remote cause is drunkenness, the party is not responsible: United States v. Drew, 58 Mason 28; Burnett v. State, Mart. & Yerg. 133; Cornwall v. State, Ibid. 147; State v. McCants, i Spear 384; United States v. Forbes, Crabbe 558; Carter v. State, 12 Texas 500; Macconeky v. State, 5 Ohio (N. S.) 77; State v. Sewell, 3 Jones (Law) 245; State v. McGonigal, 5 Harring. 510.

where the question is whether words have been uttered with a deliberate purpose, or are merely low and idle expressions, the drunkenness of the party uttering them is proper to be considered.(z) But if there is really a previous determination to resent a slight affront in a barbarous manner, the state of drunkenness in which the prisoner was, ought not to be regarded; for it would furnish no excuse.(z) So upon an indictment for stabbing, *the jury may take into their consideration, [*14 among other circumstances. the fact of the prisoner being drunk at the time, in order to determine whether he acted under a bona fide apprehension that his person or property was about to be attacked. (a) So on an indictment for an assault, in considering whether the prisoner apprehended an assault upon himself, the jury may take into consideration the state of drunkenness in which he was.(b) But though this subject of non compos mentis may be spun out to a greater length, and branched into several kinds and degrees, yet it appears that the prevailing distinction herein in law is between idiocy and lunacy; the first, a fatuity a nativitate, or dementia naturalis, which excuses the party as to his acts; the other, accidental or adventitious madness, which, whether permanent and fixed, or with lucid intervals, goes under the name of lunacy, and excuses equally with idiocy as to acts done during the frenzy.(c)

The great difficulty in cases of this kind is to determine where a person shall be said to be so far deprived of his senses and memory as not to have any of his actions imputed to him; or where, notwithstanding some defects of this kind, he still appears to have so much reason and understanding as will make him accountable for his actions. Lord Hale, speaking of partial insanity, says that it is the

(2) Rex v. Thomas, Ibid.

(a) Marshall's case, 1 Lewin 76, Park, J. J. A.; Goodier's case, Ibid., Parke, J. (b) Reg. v. Gamlen, 1 F. & F. 90, Crowder, J.

(e) Bac. Abr. Idiots, &c. (A.); 4 Co. 125.

See generally, United States v. Shultz, 6 McLean 121; People v. Sprague, 2 Parker C. R. 48; People v. Kleim, 1 Edm. S. C. 13; People v. Devine, Ibid. 594; People v. Griffin, Ibid. 126; State v. Haywood, Phill. (Law) 376; McFarland's case, 8 Abbott Pr. N. S. 57, 89; Cole's Trial, 7 Ibid. 321; People v. Francis, 38 Cal. 183; United States v. Holmes, 1 Cliff. 98; State v. Felter, 25 Iowa 67; State v. Hay, 22 La. Ann. 39; State v. Granville, Ibid. 587; State v. Windsor, 5 Harring. 512; State v. Brandon, 8 Jones (Law) 136; Fouts . State, 4 Green 500; People v. Hobson, 17 Cal. 424; Chain v. State, 31 Geo. 424; State e. Shippey, 10 Minn. 223; Anderson v. State, 42 Geo. 9; State v. Jones, 50 N. H. 369. The question is whether the prisoner could distinguish between right and wrong in relation to the particlar act committed: Comm. v. Rogers, 7 Metc. 500; Clarke v. State, 12 Ohio 483 Comm. v. Mosten, 4 Barr 264. Weakness of mind and excitement to such an extent that the prisoner did not know what the effect of his act would be is no defence: People v. Harley, 8 Cal. 390; Willis v. People, 32 N. Y. 715. Insanity at the time of the offence can only be established by evidence that the prisoner was insane at some period before or afterwards: People v. March, 8 Cal. 543; State v. Stark, 1 Strobh. 479.

A question which has created considerable difficulty, especially of late years, is, how far what is termed monomania, excuses from the commission of crime. It is the case of a partial derangement arising either from physical or moral causes, producing in the individual a hallucination on some particular subject. An eminent medical writer of our own country, Dr. Ray, who from his official position as superintendent of the main hospital, had very extensive opportunities for observation, had written a book on this subject, entitled, "A Treatise on the Medical Jurisprudence of Insanity," which may be consulted with advantage by the advocate on all cases, when this question arises. He lays it down as a principle which the progress of pathological anatomy during the present century has established beyond the reach of a reasonable doubt, that nania arises from a morbid affection of the brain. Insanity then observes the same pathological laws as other diseases, and it is the conclusion of this intelligent writer that "it is the prolonged departure without an adequate external cause, from the state of feeling and modes of thinking usual to the individual when in health, that is the true feature of disorder in the mind." He then proceeds to trace this disorder through its different classes of general or partial, intellecual or moral mania. Upon the question of partial insanity or insane delusion on particular subjects, see Roberts v. State, 3 Geo. 326; Comm. v. Rogers, 7 Metc. 500; State v. Spencer, 1 N. J. 196; State v. Huting, 21 Mo. 464; Bovard v. State, 30 Miss. 600; Sanchee . People, 4 Parker C. R. 535; Scott v. Comm., 4 Metc. (Ky.) 227; Smith v. Comm. 1 Duvall 224; State v. Gutt, 13 Minn. 341.

Sanity is always presumed, and the onus of proving insanity is on the prisoner, so that it is not sufficient for him to raise by his evidence a doubt of his sanity. This is the