these is the view usually taken. It must be carefully noted, however, that such legislative intent is rarely expressed in the statute. This fact was clearly pointed out by Wills, J., in Regina v. Tolson,24 who said that the construction of the statute depends upon the nature and extent of the penalty attached, the subject matter of the enactment and the various circumstances which may make the one construction or the other reasonable or unreasonable. These are the tests usually employed in determining whether a mental element is involved in a statutory prohibition. If the penalty imposed is simply a fine and if the statute merely regulates for the public interest activities that apart from the statute are lawful and proper, then the penalty follows from the mere doing of the prohibited act 25 without regard to the state of mind of the doer.

The truth is that the statutory prohibitions under consideration, where the penalty is a fine, more nearly resemble torts than they do crimes.

"The mere fact of a fine no more shows that an indictment is a criminal proceeding than the ancient fine in trespass. The proceeding is substantially of a civil and not a criminal character, the distinction taken in the most ancient and approved authorities being, not whether the Crown is a party . . . but whether the real end or object of the proceeding is punishment or reparation.'


Where acts prohibited in the public interest are done, it may be well said that the fine imposed is less for the purpose of punishment than for reparation to the public for the harm done.

In deciding then whether insanity would be a defense, according to the provisions of the proposed section, to a prosecution for the statutory offenses mentioned by the editor, it is necessary to deter[1899] 1 Q. B. 20, 25 (1898). See also People v. Roby, 52 Mich. 577, 579, 18 N. W. 365 (1884).

24 23 Q. B. D. 168, 174.

25 "As regards the subject matter, it is generally where acts which in themselves are not morally wrong are forbidden, that the statute is interpreted so as to render an act which is done without any unlawful intention punishable. As regards the nature of the penalty, the question depends upon whether a fine only is imposed as a punishment, or whether an offender may also be liable to imprisonment. In the former case the statute is more likely to be interpreted strictly than in the latter." CHERRY, OUTLINE OF CRIMINAL LAW, II.

"Most of the cases where ignorance or innocence of intention is no defense are cases punishable by fines." 9 HALSBURY, LAWS OF ENGLAND, 237, note e. 26 Note to Reg. v. Paget, 3 F. & F. 29, 30 (1862).

mine in each case, by applying the usual tests, whether a mental element is involved.

One of the statutory prohibitions mentioned by the editor is selling liquor to minors. The penalties imposed in the different states for violation of such a statute vary greatly. In Massachusetts it is provided that the seller "shall forfeit one hundred dollars for each offence to be recovered by the parent or guardian of such minor in an action of tort." 27 The New York and California statutes prescribe a fine or imprisonment; 28 the Kansas statute, fine and imprisonment.29 The usual penalty is simply a fine.30

According to the principles laid down, no guilty mind need accompany the doing of the prohibited act to make the defendant liable to the payment of a money penalty. Under a statute requiring imprisonment a punishable state of mind should be shown. Some few courts require this in all cases.31 If a state of mind, such as "knowingly," is specified in the statute, this of course must be proved.32 Where either fine or imprisonment may be imposed, the circumstances under which the act was done would very probably be taken into consideration by the judge in deciding between the two penalties, and it is most unlikely that one who violated the law while insane would be sent to prison.33 It is, of course, true that if a statute imposing imprisonment as a penalty has been

27 REV. LAWS, 1902, 851.

28 N. Y. PENAL CODE, § 484, (3); CAL. PENAL CODE, § 397 b.

29 2 GEN. STAT. 1897, 392, §§ 59, 60.

30 ALA. CRIM. CODE, 1907, § 7354; COLO. REV. STAT. 1908, § 1812; CONN. GEN. STAT. 1902, §§ 2696, 2712; DEL. REV. CODE, 1852 as amended 1893, 414; KY. STAT. (CARROLL) 1915, § 1306; LA. ACTS, 1906, 154.

31 Kreamer v. State, 106 Ind. 192, 6 N. E. 341 (1885); People v. Welch, 71 Mich. 548, 39 N. W. 747 (1888); State v. Sanford, 15 S. D. 153, 87 N. W. 592 (1901). 32 Loeffler v. D. C., 15 App. D. C. 329 (1899).

"Though a few courts, notably Massachusetts, have held that a person may be convicted of bigamy (Commonwealth v. Mash, 7 Met. 472 (1844)) or adultery (Commonwealth v. Thompson, 11 Allen 23 (1865)) where the second marriage occurred under the mistaken belief that a former spouse was dead, this result probably would not have been reached if the defense had been insanity. The reasoning of Hoar, J., in Commonwealth v. Presby, 14 Gray 65 (1859), would seem to indicate this. The Mash and Thompson cases have been very severely criticized [I BISHOP, NEW CRIMINAL LAW, 8 ed., § 303 a, note] and are opposed by the weight of authority. Apart from this, however, they do not present any difficulty in this connection, for under the proposed section insanity could be set up as a defense. The court recognizes that a punishable state of mind is necessary under the statutes, but holds that this was not negatived by the mistake.

construed, because of what is conceived to be the legislative intent, as not requiring any punishable state of mind, insanity would be no defense under the proposed section. The impropriety, if such it is deemed, of this result is due, not to any defect in the proposed section, but to the holding of the court that imprisonment may be imposed, in any case, upon a person who innocently violated the


When, therefore, it has been determined that a punishable state of mind is required by the prohibitory statute, then under the section of the proposed bill insanity could be set up as a defense, and if by reason thereof the necessary state of mind is negatived the defendant should be acquitted. If, on the other hand, no state of mind is involved, the defendant would be convicted and would be required to pay the fine which the statute imposes. And why should not an insane person pay a pecuniary penalty in such cases just as he must pay damages for his private torts? 34 The language of Wills, J., in Regina v. Tolson is appropriate here:

"There is nothing that need shock any mind in the payment of a small pecuniary penalty by a person who has unwittingly done something detrimental to the public interest." 35

There is practically no difference except that of procedure between the prohibiting statutes which provide a fine and those which provide for recovery of a penalty in a civil action, and the grounds on which an insane person is held liable for his torts would seem to apply to both these cases.36

The liability of an insane person for torts is well settled. I HALE, P. C., 15; HAWK. P. C., ch. 1, § 5; BAC. 'ABR., Idiots and Lunatics, § E; Weaver v. Ward, Hobart 134; McIntyre v. Sholty, 121 Ill. 660, 13 N. E. 239 (1887); Cross v. Kent, 32 Md. 581 (1870); Morain v. Devlin, 132 Mass. 87 (1882); Feld v. Borodofski, 87 Miss. 727, 40 So. 816 (1905); Jewell v. Colby, 66 N. H. 399, 24 Atl. 902 (1890); Williams v. Hays, 143 N. Y. 442, 38 N. E. 449 (1894); Ward v. Conatser, 4 Bax. (Tenn.) 64 (1874); Morse v. Crawford, 17 Vt. 499 (1845).

It has been held that evidence of insanity is admissible in an action of slander in order to show the exact amount of the damage done to the reputation of the plaintiff. Dickinson v. Barber, 9 Mass. 225 (1812); Yeates v. Reed, 4 Blackf. (Ind.) 463 (1838). A recent case in Kentucky holds that insanity may excuse a defendant from liability in such case. Irvine v. Gibson, 117 Ky. 306, 77 S. W. 1106 (1904). The court quotes from COOLEY, TORTS, 103.

35 23 Q. B. D. 168, 177 (1889).

36 "If an insane person is not held liable for his torts, those interested in his estate, as relatives or otherwise, might not have a sufficient motive to so take care of him

The reasoning applicable to statutes prohibiting the sale of liquor to minors would also apply to those prohibiting the purchase of lottery tickets and the frequenting of brothels and gambling houses, for all of these are police regulations. Statutory rape, however, differs from these, for it is an offense which involves moral turpitude, and is punished by imprisonment. Consequently a punishable state of mind is required.37 Apart from the intent to use force, if necessary, the same state of mind is necessary for statutory as for common-law rape. Both offenses are covered by the proposed section.

II. Is irresistible impulse a defense under the proposed section? Yes.

It is a fundamental principle of the criminal law that volition is a necessary element of every crime.38 Stephen forcibly states this principle thus: "No involuntary action, whatever effects it may produce, amounts to a crime by the law of England." 39 Two

as to deprive him of opportunities for inflicting injuries upon others. . . The liability of lunatics for their torts tends to secure a more efficient custody and guardianship of their persons." McIntyre v. Sholty, 121 Ill. 660, 664, 13 N. E. 239 (1887).

37 Some confusion on this point has arisen because a mistaken belief as to the girl's age has been held to be no defense. (People v. Ratz, 115 Cal. 132, 46 Pac. 915 (1896); Holton v. State, 28 Fla. 303, 9 So. 716 (1891); State v. Newton, 44 Iowa 45 (1876); State v. Houx, 109 Mo. 654, 19 S. W. 35 (1891).) The reason for this is the fact that, notwithstanding the mistaken belief, there was a guilty state of mind. "His intent to violate the laws of morality and the good order of society, though with the consent of the girl, and though in a case where he supposes he shall escape punishment, satisfies the demands of the law and he must take the consequences." BISHOP, STATUTORY CRIMES, § 490.

"It is unlawful per se to carry on such practices with any female not the lawful wife of the malfeasor, and we think that the offense here, so far as intent is involved, comes within the rule, that a man shall be held responsible for all the consequences of his wrongdoing. By having illicit intercourse with any female he violates the law; should it turn out that the partner in his crime is within the prohibited age, he will not be allowed to excuse himself by asserting ignorance as to her age." Holton v. State, 28 Fla. 303, 308, 9 So. 716 (1891). The same reasoning has been applied to the similar case of abduction. (Reg. v. Prince, L. R. 2 C. C. 154 (1875); Brown v. State, 7 Pen. (Del.) 159, 74 Atl. 836 (1909).) The proposition is well stated in an early Iowa case: "If defendant enticed the female away for the purpose of defilement or prostitution, there existed a criminal or wrongful intent, even though she was over the age of fifteen." State v. Ruhl, 8 Iowa 447, 450 (1859).

38 "Where it [volition] is absent, an immunity from criminal punishment will consequently arise." KENNY, OUTLINES OF CRIMINAL LAW, 40. "It is felt to be impolitic and unjust to make a man answerable for harm, unless he might have chosen otherwise." HOLMES, COMMON LAW, 54.

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different reasons for this well-accepted proposition are found in the books. The first is that without volition there is no act.40 The second is that volition is a mental element that must accompany an act in order to constitute a crime.41 It is sometimes said that

40 "External acts are such motions of the body as are consequent upon determinations of the will." 2 AUSTIN, JURISPRUDENCE, 28.

"That is a man's act which he wills to do, exercising a choice between acting and forbearing, and the strongest moral compulsion still leaves freedom of such choice." CLERK & LINDSELL, TORTS, 2 ed., 7.

"An act is the result of an exercise of the will." Gray, J., in Duncan v. Landis, 106 Fed. 839, 848 (1901).

"For all legal purposes an act presupposes a human being. It assumes that he is practically free to do such act or leave it undone. It implies that he desires a particular end, and that for the purpose of attaining that end he makes certain muscular movements. These motions thus willed, and their immediate and direct consequences are called, without any minute analysis, an act." HEARN, LEGAL DUTIES AND RIGHTS,


"Jurisprudence is concerned only with outward acts. An 'Act' may therefore be defined, for the purposes of the science, as a 'determination of will, producing an effect in the sensible world.'" HOLLAND, JURISPRUDENCE, 9 ed., 100.

"An act is always a voluntary muscular contraction, and nothing else." HOLMES, COMMON LAW, 91.

"An act is the bodily movement which follows immediately upon a volition." MARKBY, ELEMENTS OF LAW, 6 ed., § 215.

"The movements of a man's limbs when he gesticulates in a troubled dream, or walks in his sleep, are manifest but not voluntary. Perhaps these last are not properly to be called acts at all; in any case they are not on the footing of normal acts." POLLOCK, FIRST BOOK OF JURISPRUDENCE, 137.

"Acts are exertions of the will manifested in the external world." POUND, READINGS ON THE HISTORY AND SYSTEM OF THE COMMON LAW, 453

“An act is an event subject to the control of the will." SALMOND, JURISPRUDENCE, 4 ed., 324.

"Suppose B takes A's hand and with it strikes C, this is clearly not A's act. Suppose B strikes A below the knee, as a result of which A's leg flies up and strikes C. This is not A's act. Suppose A is suffering from locomotor ataxia, and as a symptom of the disease his foot flies out and strikes C. This again is not A's act. Suppose A, while tossing in the delirium of typhoid fever, flings his arm against C. I do not think any judge would have difficulty in saying that this was not A's act and that he was, therefore, not guilty of a crime. Now, suppose A's hand strikes C because of an uncontrollable impulse, the symptom of mental disease. No distinction can be drawn between these cases, and yet many courts would not allow A a defense in the last case. Others would allow the defense without a consideration of the legal principle involved. When, therefore, it can be shown that the defendant's physical movement which caused the injury in question was due to an uncontrollable impulse he should not be convicted, which conclusion is based upon the most fundamental principle of criminal jurisprudence." From my paper on Tests of Criminal Responsibility of the Insane, I J. CRIM. LAW AND CRIMINOLOGY, 394, 400.

41 "In order that an act may by the law of England be criminal. . . it must be voluntary." 2 STEPHEN, HISTORY OF THE CRIMINAL LAW, 97.

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