See 279, post. Walker's case, 5 C. H. Rec. 137. See Stage's case, id. 177; People v. Davis, 1 Wh. C. C. 230.

Presumption. People v. Teller, 1 Wh. C. C. 231; People v. Randolph, 2 Park. 174; State v. Adams, 76 Mo. 355; State v. Tice, 6 West. 677; Willett v. Com., 13 Bush, 230; Angelo v. People, 96 III. 29; S. C., 36 Am. Rep. 132; Stone v. Dry D., etc., R. Co., 115 N. Y. 109.

Breach of peace.

False pretenses.

353.

Bullock v. Babcock, 3 Wend. 391.

People v. Kendall, 25 Wend. 399; Doran v. Smith, 49 Vt.

Felony. Angelo v. People, 96 Ill. 29.
Manslaughter Irby v. State, 33 Ga. 496.
Murder. Godfrey v. State, 31 Ala. 323.

Rape. Com. v. Green, 2 Pick. 380; Law v. Com., 78 Va. 885; S. C., 40 Am. Rep. 750; see § 279, post.

Proof of age. By personal inspection. Matter of Serafino, 66 How. 178; State v. Arnold, 13 Ired. 184; Shingar v. State, 53 Ind. 251; People v. Plath, 3 N. Y. Cr. 129, rev'd on other grounds in 100 N. Y. 590; People v. Townsend, 3 Hill, 479; People v. Stott, 4 N. Y. Cr. 388; People, ex rel. Zeigler, v. Special Sessions, 10 Hun, 224.

By family Bible. People v. Sheppard, 5 N. Y. Cr. 132; S. C., 55 Hun, 565; 1 Greenl. Ev., § 104; 1 Phil. Ev. 255.

By infant's own testimony. Morrison v. Emsley, 53 Mich. 564; Cheever v. Congdon, 34 id. 296; Central R. Co. v. Coggin, 73 Ga. 689; Banks v. Metcalfe, 1 Wheeler Cas 351

See further 37 Alb. L. J. 130; 28 Eng. Rep. 516; 37 id. 702; § 933 of Code of Civ. Pro.

$20. Irresponsibility of idiot, lunatic, etc.- An act done by a person who is an idiot, imbecile, lunatic, or insane, is not a crime. A person cannot be tried, sentenced to any punishment, or punished for a crime, while he is in a state of idiocy, imbecility, lunacy, or insanity, so as to be incapable of understanding the proceeding or making his defense.

If reasonable doubt of sanity, must acquit. People v. McCann, 16 N. Y. 58; Wagner v. People, 2 Keyes, 684; Cole's case, 7 Abb. Pr. (N. S.)321. See People v. Schryver, 42 N. Y. 1; Brotherton v. People, 75 id. 159; State v. Crawford, 11 Kans. 32; Polk v. State, 19 Ind. 170; Dove v. State, 3 Heisk. 348; Boswell v. Com, 20 Gratt. 860; State v. Marler, 2 Ala. 43; State v. Felter, 32 Ia. 49. See People v. Coffman, 24 Cal. 230; People v. Best, 39 id. 690. Lunatic, responsible during lucidity. Clark's case, 1. H. Rec. 176. Sanity at trial, no bearing on condition at time of offense. Freeman v. People, 4 Den. 9. Delirium from fever. People v. Beno Ville, 3 Abb. N. C. 125. Epileptic. Staudeman's case, id. 187; Jenisch's case, id. 200. Weakness of intellect no defense. Patterson v. People, 46 Barb. 625. Partial insanity. State v. Huting, 21 Mo. 464; Bovard v. State, 30 Miss. 600 Moral insanity not recognized. Chorci v. State, 31 Ga. 424; Humphreys v. State, 45 id. 190. See Scott v. Com., 4 Metc. (Ky.) 227; People v. Pine, 2 Barb. 566; Krom v. Schoonmaker, 3 id. 467; People v. Lake, 2 Park. 215. See O'Connell v. People, 62 How. Pr. 435; 89 N. Y. 377: Moett v. People, 85 N. Y. 373; Walker v. People, 88 id 81; People v. Coleman, 1 N. Y. Cr. 1; People v. Carnel, 2 Edm. S. Č. 200. Hereditary insanity. Walsh v. People, 88 N. Y. 458. Plea of not guilty raises question. Ostrander v. People, 28 Hun, 38. Momentary insanity. People v. Ross, 2 Edm. S. C. 413.

Defense of insanity. Anderson v. State, 25 Neb. 550; Conway v. State, 118 Ind. 482; Martina v. State, 105 id. 445; People v. Montgomery, 13 Abb. (N. S.) 207; Sanchez v People, 4 Park. 535; S. C., 22 N Y. 147; 18 How 72; People v. Beno Ville, 3 Abb. N. C. 195: Lake v. People, 1 Park. 495; Waltz's case, 50 How 201; Sindram v. People, 88 N. Y. 196; People v. Barber, 115 id. 475; McFarland's trial, 8 Abb. (N. S.) 57; People v. McElvaine, 36 N. Y. State Rep'r, 181; 125 N. Y. 600

Moral insanity Guiteau's case, 10 Fed. Rep'r. 161; Boswell v. State. 63 Ala. 307; 35 Am Rep. 20; Charci v. State, 31 Ga. 424; People v. Pine, 2 Barb. 566; Krom v. Schoonmaker, 3 id. 467; State v. Potts, 100 N. C. 457; People v. Kerrigan, 73 Cal. 222.

Delirium tremens. People v Carpenter, 102 N. Y. 250; S C., 4 N Y. Cr 187; O'Brien v. People, 48 Barb. 274; Real v People, 55 id. 551; 42 N. Y. 270; O'Connell v. People, 87 id. 377: 62 How. 436; Willis v. Com., 22 Alb. L. J. 176; Erwin v. State, 10 Tex. App 700, People v. Mills, 98 N. Y. 176.

Mental disease. Parsons v. State, 36 Alb. L. J. 249; 81 Ala. 577; 60 Am. Rep. 193. See 36 Alb. L. J. 221; 63 Ala. 307.

Rule of responsibility. Walker v. People, 88 N. Y. $6; 1 N. Y. Cr. 27; People v. Coleman, id. 1; Willis v. People, 32 Ñ. Y. 715; 5 Park. 621; Wagner v. People, 4 Abb App. Dec. 509; 2 Keyes, 684; Casey v. People, 31 Hun, 158; 2 N. Y. Cr. 187; People v. Walworth, 4 id. 355; Flanagan v. People, 52 N. Y. 467; People v. Moett, 23 Hun, 60; People v. Waltz, 3 Abb. N. C. 209; 50 How. 204; People v. Sprague, 2 Park. 43; People v. Montgomery, 13 Abb. (N. S.) 207; United States v. Faulkner,35 Fed. Rep'r, 730; Same v. Young, 7 Cr. L. M. 732; State v. Mowry, 37 Kans. 369; People v. Hoin, 62 Cal. 120; 45 Am. Rep. 651; State v. Potts, 100 N C. 457; State v. Murray, 11 Ore. 413; State v. Bundy, 24 8. C. 439; 58 Am. Rep. 262; Kearney v. People, 11 Colo, 258; Cunningham v. State, 56 Miss. 269; 31 Am. Rep. 360; People v. McFarland, 8 Abb. (N. S.) 57.

Burden of proof. Brotherton v. People, 75 N. Y. 159; O'Connell v. People, 87 id. 377; People v. McCann, 16 id. 58; Walker v. Feople, 88 id. 81; People v. Cole, 7 Abb. (N. S.) 321; Casey v. People, 31 Hun, 158; Walters v. People, 32 N. Y. 147; Wagner v. People, 2 Keyes, 684; 4 Abb. App. Dec. 509; O'Brien v. People, 48 Barb. 274; People v. Schryver, 42 N. Y. 1; People v. Robinson, 1 Park 649; Dacey v. People, 116 Ill. 555; State v. Lawrence, 57 Me. 574: State v. Hoyt, 46 Conn. 330; State v. Crawford, 11 Kans. 32; State v. Jones, 50 N. H. 369.

Proof. People v. Hawkins, 109 N. Y. 408; People v. Barber, 115 id. 457; People v. Kemmler, 119 id. 580; Real y People, 42 id. 282; O'Brien v. People, 36 id. 276; People v. Packenham, 115 id. 200; Plake v. State, 121 Ind. 433; State v. Alexander, 30 S. C. 74; 14 Am. St. Rep. 879; People v. Wood, 36 N. Y. State Rep'r, 952; People v. McElvaine, 121 N. Y. 256; Same v. Same, 36 N. Y. State Rep'r, 181; 125 N. Y. 600.

21. Idiots, lunatics, etc., when excused from criminal liability. A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person, except upon proof that, at the time of committing the alleged criminal act, he was laboring under such a defect of reason, as either

1. Not to know the nature and quality of the act he was doing; or 2. Not to know that the act was wrong.

Where prisoner knows act unlawful, he is responsible. Willis v. People, 32 N. Y. 715; Flanagan v. People, 52 id. 467; Wagner v. People, 4 Abb. Dec. 509; People v. Montgomery, 13 Abb. Pr. (N. S.) 207; People v. Moett, 23 Hun, 60; Smith v. Com., 1 Duvall (Ky.), 224; Kriel v. Com., 5 Bush (Ky.), 362; People v. McDonnell, 47 Cal. 134; Hopps v. People, 31 III. 385; Spain v. State, 47 Ga. 553; Brown y. Com., 78 Penn. St. 122; State v. Johnson, 40 Conn. 136. Knowledge must be accompanied with reason to apply it. Macfarland's trial, 8 Abb. Pr. (N. S.) 57. Influence of spirits no defense, when knowledge of right and wrong. People v. Waltz, 50 How. Pr. 204. Feigned insanity. Waltz's case, 3 Abb. N. C. 209. Insane impulse. People v. Sprague, 2 Park. 43. Phrenzy, without derangement, no defense. Pierson's case, 3 C. H. Rec. 123; Sanchez v People, 4 Park. 535; 22 N. Y. 147. Monomania. Stevens v. State, 31 Ind. 485 See People v. Kline, Edm. S. C. 13; People v. Divine, id. 594; People v. Pine, 2 Barb. 566. Opinion of non-expert as to rational character of act, competent People v. Conroy, 2 N. Y. Cr. 565. See cases under last section,

$ 22. Intoxicated persons, intent. No act committed by a person while in a state of voluntary intoxication, shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.

Voluntary intoxication furnishes no excuse. People v. Rogers, 18 N. Y. 9; People v. Smith, 2 Park. Cr. 223; People v. Robinson, id. 235; 1 id. 649; Kenny v. People, 27 How. Pr. 202; S. C, 31 N. Y. 330; Lanergan v. People, 6 Park. 209; Friery v. People, 54 Barb. 319; People v. Perter, 2 Park. 14; People v.

Fuller, id. 36; People v. Wiley, id. 19; People v. Hammill, id. 223; People v. Batting, 49 How. Pr. 392; People v. Eastwood, 3 Park 25; 14 N. Y. 562; State v. Harlow, 21 Mo. 446; Shanahan v. Com., 8 Bush, 463; Com. v. Hawkins, 3 Gray, 463; Rafferty v. People, 66 Ill. 118; Chorei v. State, 31 Ga. 424; Humphreys v. State, 45 id. 190. See People v. Lewis, 36 Cal. 531; Hale v. State, 11 Humph. 154; Pirtle v. State, 9 id. 663; Cluck v. State, 40 Ind. 263. Evidence of intoxication to explain motive and conduct. Lanergan v. People, supra; People v. Hammill, supra; Eastwood v. People, supra; State v. Gut, 13 Minn. 341; Kelly v. State, 3 Smed. & Marsh 518; Golden v. State, 25 Ga. 527; Jones v. State, 29 id. 594; Jones v. Com., 75 Penn. St. 403; Golliber v. Com, 2 Duvall (Ky.), 163; Smith v. Com., 11 id. 224; Curry v. Com., 2 Bush (Ky.), 7; Kriel v. Com., 5 id. 362; Blimm v. Com., 7 id. 320; Shanahan v. Com., 8 id. 463; State v. Horne, 9 Kans. 119; Nichols v. State, 8 Ohio (N. S.), 435; State v. Schingen, 20 Wis. 74; State v. Garvey, 11 Minn. 154. Where intoxication produces insanity. Lanergan v. People, supra; O'Brien v. People, 48 Barb. 274; People v. Williams, 43 Cal. 344; Cromwell v. State, 1 Mart. & Yerg. 147; U. S. v. Drew, 5 Mason, 28; State v. McGonigal, 5 Harring. 510 Delirium tremens. O'Brien v. People, supra; Real v. People, 55 Barb. 551: S. C., 42 N. Y. 270; Maconnekey v. State, 5 Ohio (N. S.), 77; Willis v. Com. (Va.), 22 Alb. L. J. 176; People v. Cavanagh, 62 How. Pr. 187; People v. Pearce, 2 Edm S. C 76; People v. Jones, iá. 86; Flanigan v. People, 86 N. Y. 554; People v. O Connell, 87 id. 377. See People v. Cassiano, 17 W. Dig. 499; People v. Mills, 98 N. Y. 176.

See further People v. Conroy, 33 Hun, 119; 2 N. Y. Cr. 247; Kenny v. People, 31 N. Y. 330; 27 How. 202; Upstone v. People, 109 III. 169; Hopt v. People, 104 U. S. 631; People v. Burns, 33 Hun, 296; 2 N. Y. Cr. 415; Com. v. Hagenlock, 140 Mass. 125; Wood v. State, 34 Ark. 341; People v. Fish, 125 N. Y. 146; 34 N. Y. State Rep'r, 843; State v. Mowry, 37 Kaus. 369; State v. Shores, 31 W. Va. 491; People v. Otto, 38 Hun, 97.

§ 23. Morbid criminal propensity, no defense. A morbid propensity to commit prohibited acts, existing in the mind of a person who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor.

People v. Otto, 38 Hun, 97. See Huntington's trial and authorities cited; Flanagan v. People, 52 N. Y. 467; People v. Carpenter, 102 id. 250; 4 N. Y. Cr. 177; People v. Waltz, 50 How. 204.

24. Defense of duress, by married woman. It is not a defense, to a married woman charged with crime, that the alleged criminal act was committed by her in the presence of her husband.

Boyd's case, 3 C. H. Rec. 134; Goldstien et al. v. People, 10 W. Dig. 506; 82 N. Y. 231; Seiler v. People, 77 id. 411; People v. Ryland, 28 Hun, 568; aff'd, 2 N. Y. Cr. 438: 97 N. Y. 126; Brown's case, 3 C. H Rec. 56; Goodman's case, 6 id. 21; Rooney's case, 3 id. 126; Brandon's case, 4 id. 140; People v. Townsend, 3 Hill, 479; Quinlan v. People, 6 Park. 9.

§ 25. Duress, how constituted. - Where a crime is committed or participated in by two or more persons, and is committed, aided, or participated in by any one of them, only because, during the time of its commission, he is compelled to do, or to aid or participate in the act, by threats of another person engaged in the act or omission, and reasonable apprehension on his part of instant death or grievous bodily harm, in case he refuses, the threats and apprehension constitute duress, and excuse him.

Goldstein v. People, 82 N. Y. 231.

§ 26. Act done in defense of self or another. An act, otherwise criminal, is justifiable when it is done to protect the person committing it, or another whom he is bound to protect, from inevitable and irreparable personal injury, and the injury could only be prevented

by the act, nothing more being done than is necessary to prevent the injury.

See post, §§ 203, 204, 205, 223; Code Cr. Proc., §§ 79, 80, 81.

Statutory offenses indictable, though penalty also. People v. Stevens, 13 Wend. 341; People v. Brown, 16 id. 561. A person attacked, if justified in reasonably apprehending great bodily harm and the danger imminent, may kill his assailant. Shorter v People, 2 N. Y. 193; Patterson v. People, 46 Barb. 625. See People v. Lamb, 54 Barb. 342: People v Austin, 1 Park. 154; People v. Cole, 4 id. 55; Pfomer v. People, id. 558; Uhl v. People, 5 id. 410. Party assailed must avoid attack, if possible, to justify resistance. People v. Sullivan, 7 N. Y. 396; People v. Cole, supra; People v. Harper, Edm. S. Č. 180; Shorter v. People, supra. Resistance to prevent felony. Ruloff v. People, 45 N. Y. 213; People v. Hand, 4 Alb. L. J. 91. Need not first invoke protection against anticipated assault. Evers v. People, 3 Hun, 716; 63 N. Y. 625. Defense of possession of real property. Corey v. People, 45 Barb. 262; Wood v. Phillips, 43 N. Y. 152; People v. Gulick, Lalor, 229; Harrington v. People, 6 Barb. 607. Defense of personal property. Gyre v. Culver, 47 Barb. 592; Morgan v. Durfee, 21 Alb. L. J. 215.

See People v. Lyons, 6 N. Y. Cr. 105; note on self-defense, id. 119; People v. Pearl, 76 Mich. 207; People v. Lennon, 71 id. 298; State v. Broussard, 39 La. Ann. 671; Sawyer v. People, 16 W. Dig. 394; People v. McGrath, 47 Hun, 325; Hall v. People, 18 W. Dig. 357; 2 N. Y. Cr. 134; Morgan v. Durfee, 21 Alb. L. J. 215; People v. Minisci, 12 N. Y. State Rep'r, 720.

27. Exemption of public ministers.—Ambassadors and other public ministers from foreign governments, accredited to the president or government of the United States, and recognized according to the laws of the United States, with their secretaries, messengers, families and servants, are not liable to punishment in this state, but are to be returned to their own country for trial and punishment.

Wheat. Int. L. 264, § 6: 271, § 14; Vattel, 470, § 91, etc.; 1 Bish. Cr. L., § 585. Act of Cong., Apr. 30, 1790, chap. 9, § 25. By treaty, assault by and upon German citizens, on board vessel in port, state courts have no jurisdiction, except as it disturbs the peace; People v. Marine Court, 6 Hun, 214. Section 2, Art. 3 of Federal Const.

TITLE II.

Of Parties to Crime.

SEC. 28. Principal and accessory.

29. Definition of principal.

30. Definition of accessory.

31. All principals in misdemeanors.
32. Trial of accessories.

33. Punishment of accessories.

28. Principal and accessory.-A party to a crime is, either 1. A principal; or,

2. An accessory.

29. Definition of principal.-A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal. People v. McMurray, 4 Park. 234: Wixson v. People, 5 id. 119; Carrington v. People, 6 id. 336; People v. Bliven, 112 N. Y. 82; 20 N. Y. State Rep'r, 487; People v. Katz, 23 How. 94: People v. Batterson, 50 Hun, 44: Leonard v. Poole, 114 N. Y. 371; People v. Ryland, 97 id. 126; People v. Brien, 53 Hun, 496; 25 N. Y. State Rep'r, 239; People v. Bassford, 21 W. Dig. 349; 3 N. Y. Cr.

343: People v. Fitzgerald, 5 id. 343; People v. Hall, 57 How. 342; State v. Kirk, 11 Ore. 505; United States v. Hughes, 34 Fed. Rep'r, 732; McCartney v. People, 83 N. Y. 413; People v. McElroy, 36 N. Y. State Rep'r, 650; People v Sanborn, 46 Hun, 682; 14 N. Y. State Rep'r, 126; People v. Kief, 58 Hun, 344; 34 N. Y. State Rep'r, 533; aff'd, 126 N. Y. 661; 37 N. Y. State Rep'r, 479; People v. Phelps, 39 id. 599; People v. Cotto, 42 id. 715.

30. Definition of accessory.-A person who, after the commission of a felony, harbors, conceals, or aids the offender, with intent that he may avoid or escape from arrest, trial, conviction, or punishment, having knowledge or reasonable ground to believe that such offender is liable to arrest, has been arrested, is indicted or convicted, or has committed a felony, is an accessory to the felony.

Innocent agent. People v. McMurray, 1 Sheld. 563; People v. Hall, 57 How. Pr. 342.

See People v. Dunn, 53 Hun, 381; 25 N. Y. State Rep'r, 460; 7 N. Y. Cr. 173; 6 N. Y. Supp. 805.

§ 31. All principals in misdemeanors.-A person who commits or participates in an act which would make him an accessory if the crime committed were a felony, is a principal and may be indicted and punished as such, if the crime be a misdemeanor.

See § 682, post.

People v. Erwin, 4 Den. 129; Lowenstein v. People, 54 Barb. 229; People v. Mathews, 4 Wend. 229; Ward v People, 3 Hill, 395; Commonwealth v. Dale, 144 Mass. 363; People v. Lyon, 33 Hun, 623; 2 N. Y. Cr. 484.

§ 32. Trial of accessories.-An accessory to a felony may be indicted, tried, and convicted, either in the county where he became an accessory, or in the county where the principal felony was committed, and whether the principal felon has or has not been previously convicted, or is or is not amenable to justice, and although the principal has been pardoned or otherwise discharged after conviction.

See § 126, post. Evidence. Levy v. People, 80 N. Y. 327; 19 Hun, 383. See Jones v. People, 20 Hun, 545; 81 N. Y., 637; People v. Lyon, 99 id. 210; People v. Ryland, 97 id. 126; People v. Gray, 25 Wend. 464; Starin v. People, 45 N. Y. 333; People v. Bassford, 3 N. Y. Cr. 219.

33. Punishment of accessory.-Except in a case where a different punishment is specially prescribed by law, a person convicted as an accessory to a felony is punishable by imprisonment for not more than five years, or by a fine of not more than five hundred dollars, or by both.

TITLE III.

Degrees in the Commission of Crimes and Attempts to Commit
Crimes.

SEC. 34. What is an attempt to commit a crime.

35. Prisoner indicted may be convicted of lesser crime, or attempt.

36. Acquittal or conviction bars indictment for another degree, or attempt.

$34. Attempt to commit crime defined.-An act, done with intent to commit a crime, and tending but failing to effect its commis sion, is an attempt to commit that crime.

See $685, post.

People v. Lawton, 56 Barb. 126. Solicitations are not an attempt. Stable v Commonwealth (Pa.), 22 Alb. L. L. 458 Contra, People v. Bush, 4 Hill, 134;

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