1. The court or magistrate must have JURISDICTION of the cause or COGNIZANCE of the matter, in which the order, warrant or writ was issued.. 2. The writ, warrant or order, if written, must have all the substantial requisites prescribed by law for such writs as it purports to be. 3. The person executing it must be an officer bound to execute, by virtue of his office, such writs as it purports to be; or he must be a person to whom such writ is legally directed; or he must be one legally called upon by such officer, to aid in the execution of the order, warrant or writ. 4. He must have no knowledge of any illegality in obtaining or executing the order, warrant or writ. Art. 39. The legal order of a COMPETENT magistrate or court, if executed by a person DULY AUTHORIZED, will justify those acts which are expressly commanded by such order, and also all those acts which are the necessary means of carrying the order into execution, but it will justify no other acts; the means allowed as necessary by law, are detailed in the Code of Procedure. Art. 40. If one be forced by threats or actual violence to do any act, which, if voluntarily done, would be an offence, he shall be exempted from punishment, by proving the following circumstances: 1. That he was threatened with the loss of life or limb, if he did not perform the act; and that he had good reason to believe that such threat would be executed. 2. That he made every endeavour which could be made by any man of common courage, to resist or escape from the power of the person using the threats. 3. That the act of which he is accused, was done while he was in the presence of the person using the threats or violence, and during the continuance of the same. Art. 41. If one intending to commit an offence, and in the act of preparing for, or executing the same, shall, through MISTAKE or ACCIDENT, do another act, which, if voluntarily done, would be an offence, he shall incur the penalty for the act really done. Provided, that if the act intended to be done, be a misdemeanor, he shall only incur the highest penalty provided by law for the offence he intended to commit, although the act done would, if he had intended it, have been a crime. But if the intent was to commit a crime, although INFERIOR IN DEGREE, he shall incur the penalty provided by law for the act really done. Art. 42. No event happening through MISTAKE or ACCIDENT in the performance of a lawful act, done with ORDINARY ATTENTION, is an offence. Art. 43. An act forbidden by law, though done through MISTAKE or ACCIDENT, from the want of ORDINARY CARE AND ATTENTION, is punishable. Art. 44. The provisions of the last preceding article are subject to modifications in the case of homicide, which are expressed in the part of the code which treats of homicide. Art. 45. The intention to commit an offence shall be presumed whenever the means used are such as, in the common course of events, must produce the event which is forbidden. Art. 46. The fact which constitutes an offence being proved, all facts or circumstances on which the accused relies to justify or excuse the prohibited act or omission, must be proved by him. Art. 47. If any person who shall ATTEMPT TO COMMIT an offence, fail in completing the same, or is interrupted from any cause, not depending on his own will, he shall suffer ONE HALF OF THE PUNISHMENT to which he would have been sentenced if he had completed the whole. Art. 48. Military offences are not comprehended in this code. Art. 49. The Indian tribes residing within the boundaries of this state, being governed by their own usages, no act done within their boundaries by individuals belonging to such tribes, in their intercourse with each other, or with other tribes, and not affecting any other person, is considered as an offence against this code: in other respects they are considered in the same light with other persons in the state, both as to protection and liability to punishment. Art. 50. Offences committed by slaves, form the subject of a separate code: such offences are not included in any of the provisions of this system. Art. 51. The Second Book of this code contains modifications of the general provisions contained in this chapter, which control them. CHAPTER IV. Of a repetition of offences. Art. 52. Any person, who having been convicted of a misdemeanor, shall afterwards repeat the same offence, or commit any other misdemeanor of the same nature, shall suffer ADDITION OF ONE HALF to the punishment he would otherwise have suffered. If the first conviction was for a crime, the punishment for the second offence of the same nature, shall also be INCREASED one half. Art. 55. And if any person, having been twice previously convicted of crimes, no matter of what nature, shall a third time be convicted of any crime afterwards committed, he shall be considered as unfit for society, and be imprisoned at hard labour for life. Art. 54. A previous conviction in any of the United States of America, operates the same effect as to the increase of punishment for subsequent offences, as if the same conviction had taken place in this state. Art. 55. By offences of the SAME NATURE, in this section, are intended all such as are comprised within the same title in the Second Book of this code. Art. 56. Where the punishment of the crime of which the offender is a second or a third time convicted, is imprisonment for life, the increased punishment must consist in seclusion, or such other privations as the judges are empowered in the Second Book to direct, with respect to offenders in general. CHAPTER V. Of principals, accomplices and accessaries. Art. 57. An offence being the doing of an act which is forbidden under a penalty imposed by law, or omitting to do some act, which under like penalty is directed by law to be done; those are principal offenders who do the forbidden act, or who being bound to do the act enjoined, are guilty of the omission. Art. 58. If the forbidden act be done by several, all are principal offenders. If several are bound to perform the act which is enjoined, all who omit it are principal offenders. Art. 59. When the act constituting the offence is actually done by only one or more persons, but others are present, and knowing the unlawful intent, aid them by acts, or encourage them by words or gestures; or if not being actually present, others shall keep watch to give notice of the approach of any one who might interrupt the commission of the offence; or shall be employed in procuring aid, or arms, or instruments for the performance of the act, while it is executing; or shall do any other act at the time of executing the offence, to secure the safety or concealment of those who perform the offence, or to aid them in its execution all such persons are also principal offenders, and may be prosecuted and convicted as such. Art. 60. When the offence is committed by SECONDARY MEANS, without employing the agency of a person who may be convicted as a principal offender, the person employing and preparing those secondary means is a principal offender, although he may not be present when the means he had prepared took their effect. Art. 61. Laying poison where the person whom it is intended to murder may take it himself; employing a child, or other innocent person, to give it; setting a spring-gun, so that the party may fire it himself; are examples of the secondary means intended by the last preceding article. Art. 62. Those persons are also principals, who, having counselled or agreed to the performance of the act, shall be present when it is done, whether they aid in the execution or not. Art. 63. There may be accessaries to all offences committed with premeditation, and accomplices to all except manslaughter, and offences occasioned by neglect. Art. 64. There can be neither accomplice nor accessary, except in cases where an offence has been committed. Art. 65. All those are accomplices who are not present at the commission of an offence, but who, before the act is done, verbally or in writing, shall advise or command, or encourage another to commit it: Those who agree with the principal offender to aid him in committing the offence, although such aid may not have been given: Those who shall promise money, or other reward, who shall offer any place or particular favour, or any other inducement; or shall men ace any injury or loss of favour, in order to procure the commission of an offence: Those who shall prepare arms or instruments, men, money or aid of any kind, or do any other act prior to the commission of the offence, to facilitate its execution, and knowing that it is intended all these persons are accomplices. Art. 66. No person can be found guilty as an accomplice to any offence, other than such as have aided, promoted, advised or encouraged it by some of the means set forth in the last preceding article; but it is not necessary that the advice should be strictly pursued: it is sufficient if the offence be of the SAME NATURE and for the same object, as the offence advised or encouraged. Art. 67. If in the attempt to commit an offence, the principal of fender shall make himself liable to punishment for any other act committed by mistake or accident, according to the provisions for that purpose herein before contained, his accomplices shall be punished only as they would have been had the offence been committed which he intended to commit. Art. 68. The punishment of an accomplice is the same as that designated for the principal offender, excepting the increase of such punishment provided for in the next article. Art. 69. If the principal offender be under fifteen years of age, whether he be found of sufficient intelligence to understand the nature and illegality of the act or not, and there be an accomplice of full age, the punishment of such accomplice shall be INCREASED ONE HALF and if the principal offender be a minor, above fifteen, then the punishment of the accomplice shall be INCREASED ONE QUARTER. Art. 70. Accessaries are those who, knowing that an offence has been committed, conceal the offender, or give him any other aid, in order that he may effect his escape from arrest or trial, or the execution of his sentence; he who aids the offender in preparing and making his defence at law; or who procures him to be bailed, although he may afterwards abscond, shall not be considered as an accessary. Art. 71. The following persons cannot be punished as accessaries. 1. The husband or wife of the offender. 2. His relations in the ascending or descending line, either by affinity or consanguinity. 3. His brothers or sisters. 4. His domestic servants. Art. 72. The accessary shall be punished by fine and simple imprisonment in the manner directed by the Second Book. Art. 73. The accomplice may be arrested, tried and punished before the conviction of the principal offender, and the acquittal of the principal shall be no bar to the prosecution of the accomplice, but on the trial of such accomplice, the commission of the offence must be clearly proved, or the accomplice cannot be convicted. Art. 74. The accessary may be arrested, but not tried without his consent before the conviction of the principal, and the acquittal of the principal shall discharge the person named as accessary. BOOK II. OF OFFENCES AND PUNISHMENTS. TITLE I. OF THE GENERAL DIVISIONS AND DESCRIPTIONS OF OFFENCES AND PUNISHMENTS. CHAPTER I. Definition and divisions of offences. Art. 75. Offences are those acts and omissions which are forbidden by positive law, under the sanction of a penalty. Art. 76. There are two divisions of offences; establishing distinctions drawn, the one from the degree of the offence, the other from its object. By the first division, all offences are either CRIMES OR MISDEMEANORS. By the second, they are PUBLIC OR PRIVATE OFFENCES. Art. 77. All offences punishable by confinement at hard labour, or by a forfeiture of any civil or political right, are crimes; all other offences are misdemeanors. All offences to which either of the punishments enumerated in the last preceding article are expressly assigned, or to which the court have a discretionary power to apply them, are punishable in that manner within the meaning of that article. Art. 78. Offences, in relation to their object, are public or private offences. Art. 79. Those are public offences which principally affect the state or its government in any of its branches, or any of its institutions, or operations for the benefit of the citizens. Those are public offences which affect, 1. The sovereign power of the state. 2. The legislative power. 3. The executive power. 4. The judiciary power. |