a riot,27 or to assist in the commission of robbery, 28 or burglary.29 At common law fear of personal danger will not excuse a man who joins in committing a homicide,30 and statutes 31 in some states expressly Phila. 396, Fed. Cas. No. 15, 262; Respublica v. McCarty, 2 Dall. (Pa.) 86, 1 L. Ed. 300; Rex v. Gordon, 1 East P. C. 71; McGrowther's Case, Fost. C. L. 13. 27 Rex v. Crutchley, 5 C. & P. 133. 28 People v. Merhige, 212 Mich. 601, 180 N. W. 418. And see Thomas v. State, 134 Ala. 126, 33 So. 130; Pirkle v. State, 11 Ga. App. 98, 74 S. E. 709. 29 Beal v. State, 72 Ga. 200. 30 Alabama. Arp v. State, 97 Ala. 5, 12 So. 301, 19 L. R. A. 357, 38 Am. St. Rep. 137. Arkansas. Brewer v. State, 72 Ark. 145, 78 S. W. 773. Montana. State V. Fisher, 23 Mont. 540, 59 Pac. 919. Rhode Island. State v. Nargashian, 26 R. I. 299, 58 Atl. 953. Tennessee. Leach V. State, 99 Tenn. 584, 42 S. W. 195. England. 4 Blackst. 30; Reg. v. Tyler, 8 C. & P. 616. The intentional killing of another under threats is murder. And fear induced by one person is no defense to a defendant who kills another under its influence, nor will it reduce the crime to manslaughter, where the defendant is left with sufficient power of mental action to put his own chances of safety against the life of the person killed. State v. Nargashian, 26 R. I. 299, 58 Atl. 953, 106 Am. St. Rep. 715, 3 Ann. Cas. 1026. In this case it was said that there might be cases, like a panic, where a general fear might not only reduce, but excuse, an unlawful act. The person threatened cannot elect a course absolutely safe to himself, and kill an innocent man, rather than take some risk to himself in an equal combat with the person making the threats. If both are armed with guns, it is the duty of the defendant to spare the third person and at the same time protect himself by turning his gun upon the person making the threats. Brewer v. State, 72 Ark. 145, 78 S. W. 773. Leach v. State, 99 Tenn. 584, 42 S. W. 195. It will not excuse him if he fires the fatal shot, but may do so if the actual killing is done by others. Rizzolo v. Com., 126 Pa. St. 54, 17 Atl. 520. So a defendant who only consents to a robbery, and not to the murder of the person robbed, and who does not himself do the killing, is not guilty of murder because of a killing committed by his companions in the course of the robbery, where such consent is given only because at the time he gives it he has reasonable cause to believe that he will be immediately killed if he does not give it. Baxter v. People, 2 Gilm. (7 Ill.) 578. But see the following note. In Brewer v. State, 72 Ark. 145, 78 S. W. 773, it was said that it was not necessary to inquire whether compulsion might operate to reduce the grade of the offense and mitigate the punishment, since it was not shown that the defendant was obliged to kill the deceased in order to save his own life. 31 See the statutes. Under such a statute the fact that one is compelled by duress to join in the commission of a robbery is no defense to a charge of murder based on a killing committed by one of his campanions while in the act of com provide that it will not excuse murder, or crimes punishable by death.3 32 But under some statutes duress seems to be a defense even in homicide cases.33 The presumption that a wife is coerced by her husband where she commits an offense in his presence, and the effect of such presumption will be considered in another section.34 § 167. What amounts to compulsion. To make out a case of compulsion the accused must have been put in fear of death or great bodily harm,35 and such fear must be well grounded.36 Fear of injury to property, as of having houses burned, crops destroyed, or mitting the robbery. State v. Moretti, 66 Wash. 537, 120 Pac. 102. 32 Cal. Penal Code, § 26, subd. 8; Mont. Penal Code, § 30, subd. 8; Rev. Codes, 1907, § 116; State v. Fisher, 23 Mont. 540, 59 Pac. 919. And see the statutes. 33 Apparently this is true under the Texas statute which contains no express exceptions. See Paris V. State, 35 Tex. Cr. 82, 31 S. W. 855, where a judgment of conviction was reversed for failure to give a requested instruction on the subject. 34 See § 105, supra. 35 United States. United States v. Vigol, 2 Dall. 346, Fed. Cas. No. 16, 621, 1 L. Ed. 409; Respublica v. McCarty, 2 Dall. 86, 1 L. Ed. 300; United States v. Haskell, 4 Wash. C. C. 402, Fed. Cas. No. 15, 321; United States v. Greiner, 4 Phila. 396, Fed. Cas. No. 15, 262. Alabama. Thomas V. State, 134 Ala. 126, 33 So. 130. Georgia. Burns v. State, 89 Ga. 527, 15 S. E. 748; McCoy v. State, 78 Ga. 490, 3 S. E. 768. Michigan. People v. Merhige, 212 Mich. 601, 180 N. W. 418. England. McGrowther's Case, Fost. C. L. 13. 36 United States v. Haskell, 4 Wash. C. C. 402, Fed. Cas. No. 15, 321; State v. Margashian, 26 R. I. 299, 58 Atl. 953, 106 Am. St. Rep. 715, 3 Ann. Cas. 1026. The act must have been done under such threats or menaces as show that life or member was in danger, or that there was reasonable cause to believe and actual belief that there was such danger. Burns v. State, 89 Ga. 527, 15 S. E. 748; McCoy v. State, 78 Ga. 490, 3 S. E. 768; Henderson v. State, 5 Ga. App. 495, 63 S. E. 535. The coercion must be such as would put a reasonable person in reasonable apprehension of danger to his own life or limb if he did not participate in the crime. Rizzolo v. Com., 126 Pa. St. 54, 17 Atl. 520. The duress necessary to constitute a defense to a criminal prosecution differs widely from that which will avoid a contract. Much less freedom of will is necessary to render one responsible for crime than to bind him by a contract, and to overcome the will so far as to render it incapable of contracting a civil obligation is a mere trifle compared to reducing it to that degree of slavery and submission which will exempt from punishment. McCoy v. State, 78 Ga. 490, 3 S. E. 768. That the accused was a boy of tender years may be taken into consideration on the question of his coercion. Beal v. State, 72 Ga. 200. See goods taken, is not enough to excuse any offense.37 Nor, as a rule, is the fact that the offense was committed at the request or command of a third person.38 The threatened injury must also be present, imminent and impending. Threats of future injury are no defense.3 39 The accused must also be under immediate personal restraint at the time he does the act, 40 and, by statute in some states, the person threatening must be actually present when the act is done.41 Compul also People v. Miller, 66 Cal. 468, 6 Pac. 99. 37 United States v. Vigol, 2 Dall. 346, Fed. Cas. No. 16, 621, 1 L. Ed. 409; Respublica v. McCarty, 2 Dall. 86, 1 L. Ed. 300; United States v. Greiner, 4 Phila. 396, Fed. Cas. No. 15,262; McGrowther's Case, Fost. C. L. 13. 38 See ch. 7, infra. 39 Steph. Dig. Cr. Law, art. 31. Arkansas. Brewer v. State, 72 Ark. 145, 78 S. W. 773. California. People v. Martin, 13 Cal. App. 96, 108 Pac. 1034, construing the statute. Georgia. Burns v. State, 89 Ga. 527, 15 S. E. 748; Pirkle v. State, 11 Ga. App. 98, 74 S. E. 709. Indiana. Ross v. State, 169 Ind. 388, 82 N. E. 781. Michigan. People v. Merhige, 212 Mich. 601, 180 N. W. 418; People v. Repke, 103 Mich. 459, 61 N. W. 861. Mississippi. Bain v. State, 67 Miss. 557, 7 So. 408. Montana. State v. Fisher, 23 Mont. 540, 59 Pac. 919. Rhode Island. State v. Nargashian, 26 R. I. 299, 58 Atl. 953, 106 Am. St. Rep. 715, 3 Ann. Cas. 1026. This is true although the person committing the act is a minor and the person exercising the compulsion is an adult. People v. Martin, 13 Cal. App. 96, 108 Pac. 1034. Threats to kill in the future made three days before the crime was committed are no defense where the person making them was not present when the crime was committed. State v. Fisher, 23 Mont. 540, 59 Pac. 919. Threats to kill or injure are no defense to a charge of perjury where they are not made at the instant of giving the testimony. Bain v. State, 67 Miss. 557, 7 So. 408; or where there is no danger at the time of testifying. Burns v. State, 89 Ga. 527, 15 S. E. 748. And see McCoy v. State, 78 Ga. 490, 3 S. E. 768. 40 It is no defense to a prosecution for bigamy that the accused was threatened with violence by a mob unless he married his second wife, where such threats were made the night before the second marriage took place, and it did not appear that he was under personal restraint when it took place. Burton v. State, 51 Tex. Cr. 196, 101 S. W. 226. On a prosecution for arson, an offer to prove that shortly before the commission of the offense a third person drew a revolver on the defendant and threatened to kill her, thereby putting her in fear at the time, and that she was weak in will power and easily persuaded, which was known to such person, unconnected with other proof showing that such threat had any. thing to do with the commission of the crime, was held to have been properly excluded. Ross v. State, 169 Ind. 388, 82 N. E. 781. 41 The provision of the Texas statute to this effect means only that the person threatening shall be so near as to have the other party with the sion at the outset is not a defense if the accused takes any further part in the offense after the cause of his fear and the fear cease, or in other words, after the immediate danger has passed away.42 Nor will the fact that he acted under immediate necessity or compulsion when the offense was committed excuse him if he previously had an opportunity to escape with reasonable safety to himself from the person threatening him and failed to take advantage of it.43 That a person marries in order to escape a pending prosecution for seduction does not amount to duress which will constitute a defense to a charge of bigamy committed in contracting such marriage, where the statute provides that a person charged with seduction may escape prosecution by marrying the girl alleged to have been seduced.44 § 168. Request or command of another. As a general rule it is not an excuse for crime that the criminal act was committed by the accused at the request or command of another person.45 So if a child who is old enough and of intelligence enough to be criminally responsible commits a crime, it is no defense that he did so by command of his parent, or one standing in loco parentis.47 And the same W. 861; Carlisle v. State, 37 Tex. Cr. 108, 38 S. W. 991. means at his command under his power and control at the time he does the act. So a person 20 or 30 paces from the immediate place of a killing, armed with a pistol or shotgun, may have the person doing the act as much within his power and control as if he was only a few feet distant. Paris v. State, 35 Tex. Cr. 82, 31 S. W. 855. 42 Respublica v. McCarty, 2 Dall. 86, 1 L. Ed. 300; United States v. Greiner, 4 Phila. 396, Fed. Cas. No. 15, 262; Baxter v. People, 2 Gilm. (Ill.) 578; McGrowther's Case, Fost. C. L. 13. 43 Arp v. State, 97 Ala. 5, 12 So. 301, 19 L. R. A. 357, 38 Am. St. Rep. 137; State v. Nargashian, 26 R. I. 299, 58 Atl. 953, 106 Am. St. Rep. 715, 3 Ann. Cas. 1026. 44 Medrano v. State, 32 Tex. Cr. 214, 22 S. W. 684, 40 Am. St. Rep. 775. 45 Thomas v. State, 134 Ala. 126, 33 So. 130; Hately v. State, 15 Ga. 346; People v. Repke, 103 Mich. 459, 61 N. 46 Steph. Dig. Crim. Law, art. 31; 1 Hawk. P. C. c. 1, § 14. Cagle v. State, 87 Ala. 38, 6 So. 38, 93, (Sale of liquor); People v. Richmond, 29 Cal. 414 (larceny); Carlisle v. State, 37 Tex. Cr. 108, 38 S. W. 991 (poisoning of her infant child by girl of sixteen, because of request, command, or persuasion of her mother). The command of the parent, however, may be taken into consideration by the jury, in connection with the age of the child, in determining whether the child knew that he was committing a crime. Com. v. Mead, 10 Allen (Mass.) 398; State v. Learnard, 41 Vt. 585. A child of ten was acquitted of possession of tools for counterfeiting, while living with his parents who were convicted. Reg. v. Boober, 4 Cox, C. C. 272. 47 People v. Martin, 13 Cal. App. 96, 108 Pac. 1034. is true of a crime committed by a servant or agent in obedience to the command of his master or principal.48 But, as a rule, a wife is not guilty of a crime, except in the case of treason or murder, if the act is done under coercion by her husband, and, if an act is committed by her in the presence of her husband, there is a rebuttable presumption of coercion.49 And an order given by an army officer to his private, which does not expressly and clearly show on its face its own illegality, the soldier is bound to obey and such order is his full protection.50 But a soldier is not bound to obey an illegal order, and an order illegal in itself and not justified by the rules of war, and which a man of ordinary sense and understanding would know when he heard it read or given was illegal, will afford a private no protection for a crime committed under it.51 48 See § 265, infra. 49 See § 273, infra. 50 In re Fair, 100 Fed. 149; United States v. Clark, 31 Fed. 710; Com. v. Shortall, 206 Pa. 165, 55 Atl. 952, 65 L. R. A. 193, 98 Am. St. Rep. 759; Riggs v. State, 3 Coldw. (Tenn.) 85, 91 Am. Dec. 272. A private who burns a house by command of his superior officer in the usual course of prosecuting war cannot be held answerable for arson. Clark v. State, 37 Ga. 191. An order given by a sergeant to shoot a prisoner who was attempting to escape if he did not halt when commanded to do so was held not to be apparently and palpably illegal to the commonest understanding, and hence it was further held that soldiers who shot and killed the prisoner while acting under it in good faith, and without any criminal intent, but with an honest purpose to perform a supposed duty, were not liable to prosecution under the criminal laws of the state. In re Fair, 100 Fed. 149. A private soldier is not responsible for a homicide committed by members of a force of which he is also a member although he is present at the scene of the killing, where he goes there pursuant to an order of his superior officer, without knowledge of the purpose for which the force was sent there, and does not participate in the actual killing by firing, or aid or abet in the act of killing. Riggs v. State, 3 Coldw. (Tenn.) 85, 91 Am. Dec. 272. In Com. v. Shortall, 206 Pa. 165, 55 Atl. 952, 65 L. R. A. 193, 98 Am. St. Rep. 759, it was held that a member of the state militia, who, at a time when martial law was in force, and while acting as a sentry, and under orders of his superior officers, shot and killed a man who refused to halt on command, was not guilty of any crime. 51 United States v. Clark, 31 Fed. 710; United States v. Jones, 3 Wash. C. C. 209, Fed. Cas. No. 15,494; United States v. Carr, 1 Woods 480, Fed. Cas. No. 14,732; Riggs v. State, 3 Coldw. (Tenn.) 85, 91 Am. Dec. 272. The mere fact that a soldier is ordered by an officer to kill another soldier will not justify him in doing so, or prevent him from being guilty of murder. United States v. Carr, 1 Woods 480, Fed. Cas. No. 14,732. In Rex v. Thomas, 1 Russ. Crimes (9th Ed.) 823, 4 Maule & S. 442, a marine on a man of war was held guilty of murder where he fired upon a boat which approached the ship after being |