the wife did not act in the direct presence of her husband or under his eye, it must usually be left to the jury to determine incidentally whether his presence was sufficiently immediate or direct to raise the presumption. But the ultimate question, after all, is whether she acted under his coercion or control, or of her own free will independently of any coercion or control by him; and this is to be determined in view of the presumption arising from his presence, and of the testimony or circumstances tending to rebut it, if any such exist. Commonwealth v. Burk, 11 Gray, 437; Commonwealth v. Gannon, 97 Mass. 547; Commonwealth v. Welch, 97 Mass. 593; Commonwealth v. Eagan, 103 Mass. 71; Commonwealth v. Munsey, 112 Mass. 287; Commonwealth v. Gormley, 133 Mass. 580; Commonwealth v. Flaherty, 140 Mass. 454; Commonwealth v. Hill, 145 Mass. 305, 307.1

SECTION IV.

Infancy: Incorporation.

1 Hawk. P. C. ch. 1, s. 14. Neither a son nor a servant are excused the commission of any crime, whether capital or not capital, by the command or coercion of the father or master.2

REGINA v. SMITH.

SOMERSET ASSIZES. 1845.

[Reported 1 Cox C. C. 260.]

INDICTMENT for maliciously setting fire to a hayrick.

It appeared that the prisoner was a boy of the age of ten years. There was no evidence of any malicious intention.

ERLE, J. (to the jury). Where a child is under the age of seven years, the law presumes him to be incapable of committing a crime; after the age of fourteen, he is presumed to be responsible for his actions as entirely as if he were forty; but between the ages of seven and fourteen, no presumption of law arises at all, and that which is termed a malicious intent, a guilty knowledge that he was doing wrong, must be proved by the evidence, and cannot be presumed from the

1 Where a crime is committed by a wife in the absence of her husband there is no presumption of coercion, though coercion in fact may be shown. Com. v. Tryon, 99 Mass. 442; State v. Collins, 1 McCord, 355; State v. Potter, 42 Vt. 495.- ED. 2 See Com. v. Mead, 10 All. 398; State v. Learnard, 41 Vt. 585. Ed.

mere commission of the act. You are to determine from a review of the evidence whether it is satisfactorily proved that at the time he fired the rick (if you should be of opinion he did fire it) he had a guilty knowledge that he was committing a crime. Not guilty.1

COMMONWEALTH v. PROPRIETORS OF NEW BEDFORD BRIDGE.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1854.

[Reported 2 Gray, 339.]

INDICTMENT for a nuisance, occasioned by the erection and maintenance of a bridge in and across the Acushnet, a navigable river, flowing between the city of New Bedford and the town of Fairhaven, and thereby filling up and obstructing the navigation of the river. The indictment was found at June term, 1852, of the Court of Common Pleas.

At the trial in that court, before BYINGTON, J., the defendants admitted that they had erected and maintained a bridge across the Acushnet River; that the bridge was so far an obstruction to the navigation of the river, that its erection and maintenance could only be justified under an act of the legislature; and that, without such justification, they would be subject to a prosecution of some kind. But they contended that they were not liable to indictment.

The defendants gave in evidence their act of incorporation (St. 1796, c. 19), under which they acted in maintaining their bridge.

2

The presiding judge, "being of opinion that the several questions of law are so important or doubtful as to require the opinion of the Supreme Judicial Court," directed a verdict of guilty, and reported the case, with the consent of the defendants, for the consideration of this court.

BIGELOW, J. The indictment in the present case is for a nuisance. The defendants contend that it cannot be maintained against them, on the ground that a corporation, although liable to indictment for nonfeasance, or an omission to perform a legal duty or obligation, are not

See acc. Rex v. Owen, 4 C. & P. 236; Angelo v. People, 96 Ill. 209; State v. Fowler, 52 Ia. 103; State v. Adams, 76 Mo. 355; State v. Doherty, 2 Overton, 80.

Criminal capacity in a child between seven and fourteen may be proved by evidence, or may be inferred from the circumstances of the act. 4 Bl. Com. 23; Godfrey v. State, 31 Ala. 323; State v. Toney, 15 S. C. 409.

As to proof of criminal capacity, see Willet v. Com., 13 Bush, 230; Carr v. State, 24 Tex. App. 562.

As to the conclusive presumption that a boy under fourteen cannot be guilty of rape, except as principal in the second degree, see Rex v. Eldershaw, 3 C. & P. 396; Com. a Green, 2 Pick. 380 (supra); Law v. Com., 75 Va. 885. — ED.

2 Part of the case has been omitted.

amenable in this form of prosecution for a misfeasance, or the doing of any act unlawful in itself and injurious to the rights of others. There are dicta in some of the early cases which sanction this broad doctrine, and it has been thence copied into text writers, and adopted to its full extent in a few modern decisions. But if it ever had any foundation, it had its origin at a time when corporations were few in number, and limited in their powers, and in the purposes for which they were created. Experience has shown the necessity of essentially modifying it; and the tendency of the more recent cases in courts of the highest authority has been to extend the application of all legal remedies to corporations, and assimilate them, as far as possible, in their legal duties and responsibilities, to individuals. To a certain extent, the rule contended for is founded in good sense and sound principle. Corporations cannot be indicted for offences which derive their criminality from evil intention, or which consist in a violation of those social duties which appertain to men and subjects. They cannot be guilty of treason or felony, of perjury or offences against the person. But beyond this, there is no good reason for their exemption from the consequences of unlawful and wrongful acts committed by their agents in pursuance of authority derived from them. Such a rule would, in many cases, preclude all adequate remedy, and render reparation for an injury, committed by a corporation, impossible; because it would leave the only means of redress to be sought against irresponsible servants, instead of against those who truly committed the wrongful act by commanding it to be done. There is no principle of law which would thus furnish immunity to a corporation. If they commit a trespass on private property, or obstruct a way to the special injury and damage of an individual, no one can doubt their liability therefor. In like manner, and for the same reason, if they do similar acts to the inconvenience and annoyance of the public, they are responsible in the form and mode appropriate to the prosecution and punishment of such offences. Angell & Ames on Corp. ss. 394-396; Maund v. Monmouthshire Canal, 4 M. & G. 452, and 5 Scott N. R. 457; The Queen v. Birmingham & Gloucester Railway, 3 Q. B. 223; The Queen ". Great North of England Railway, 9 Q. B. 315, and 2 Cox C. C. 70; Eastern Counties Railway v. Broom, 6 Ex. 314; The State v. Morris & Essex Railroad, 23 N. J. (3 Zab.) 360. If, therefore, the defendants have been guilty of a nuisance, by obstructing unlawfully a navigable stream, an indictment may well be maintained against them. It may be added that the distinction between a non-feasance and a misfeasance is often one more of form than of substance. There are cases where it would be difficult to say whether the offence consisted in the doing of an unlawful act, or in the doing of a lawful act in an improper manner. In the case at bar, it would be no great refinement to say that the defendants are indicted for not constructing their draws in a suitable manner, and thereby obstructing navigation, which would be a non-feasance, and not for unlawfully placing obstructions in the

river, which would be a misfeasance. The difficulty in distinguishing the character of these offences strongly illustrates the absurdity of the doctrine that a corporation are indictable for a non-feasance, but not for a misfeasance. See 9 Q. B. 325.1

SECTION V.

Ignorance or Mistake.

1 Hale P. C. 42. Ignorance of the municipal law of the kingdom, or of the penalty thereby inflicted upon offenders, doth not excuse any that is of the age of discretion and compos mentis from the penalty of the breach of it; because every person of the age of discretion and compos mentis is bound to know the law, and presumed so to do; Ignorantia eorum quæ quis scire tenetur non excusat.

But in some cases ignorantia facti doth excuse, for such an ignorance many times makes the act itself morally involuntary; and indeed many of the cases of misfortune and casualty mentioned in the former chapter are instances that fall in with this of ignorance: I shall add but one or two more.

It is known in war that it is the greatest offence for a soldier to kill, or so much as to assault his general; suppose, then, the inferior officer sets his watch, or sentinels, and the general, to try the vigilance or courage of his sentinels, comes upon them in the night in the posture of an enemy (as some commanders have too rashly done), the sentinel strikes, or shoots him, taking him to be an enemy; his ignorance of the person excuseth his offence.2

LEVETT'S CASE.

NEWGATE SESSIONS. 1638.

[Reported Croke Car. 538.]

JONES said that it was resolved by the Chief Justice BRAMPTON, himself, and the Recorder of London, at the last sessions at Newgate, in the case of one William Levett, who was indicted of the homicide of a woman called Frances Freeman, where it was found by special verdict that the said Levett and his wife being in the night in bed and

1 As to the criminal liability of members of a corporation who take part in its crimi nal acts, see Reg. v. Ry., 9 Q. B. 315, 327; People v. England, 27 Hun, 139. — ED. 2 Here follows a statement of Levett's Case, infra. - ED.

-

asleep, one Martha Stapleton, their servant, having procured the said Frances Freeman to help her about house-business, about twelve of the clock at night going to the doors to let out the said Frances Freeman, conceived she heard thieves at the doors offering to break them open; whereupon she, in fear, ran to her master and mistress, and informed them she was in doubt that thieves were breaking open the house-door. Upon that he arose suddenly and fetched a drawn rapier. And the said Martha Stapleton, lest her master and mistress should see the said Frances Freeman, hid her in the buttery. And the said Levett and Helen his wife coming down, he with his sword searched the entry for the thieves; and she, the said Helen, espying in the buttery the said Frances Freeman, whom she knew not, conceiving she had been a thief, crying to her husband in great fear, said to him, "Here they be that would undo us." Thereupon the said William Levett, not knowing the said Frances to be there in the buttery, hastily entered therein with his drawn rapier, and being in the dark and thrusting with his rapier before him, thrust the said Frances under the left breast, giving to her a mortal wound, whereof she instantly died; and whether it were manslaughter, they prayed the discretion of the court. And it was resolved that it was not; for he did it ignorantly without intention of hurt to the said Frances; and it was there so resolved.1

THE prisoner was tried before Lord ELDON, at the Admiralty Sessions, December, 1799, on an indictment for wilfully and maliciously shooting at Henry Truscott.2

It was insisted that the prisoner could not be found guilty of the offence with which he was charged, because the Act of the 39 Geo. III. c. 37, upon which (together with the statute relating to maliciously shooting, 9 Geo. I. c. 22, "Black Act") the prisoner was indicted at this Admiralty Sessions, and which act of the 39 Geo. III. is entitled "An act for amending certain defects in the law respecting offences committed on the high seas," only received the royal assent on the 10th of May, 1799, and the fact charged in the indictment happened on the 27th of June, in the same year, when the prisoner could not know that any such act existed (his ship, the "Langley," being at that time upon the coast of Africa.)

LORD ELDON told the jury that he was of opinion that he was, in

1 See Regina v. Lynch, 1 Cox C. C. 361; McGehee v. State, 62 Miss. 772. - ED. 2 Part of the case is omitted.