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The Influence of Aggravating or Mitigating Personal Characteristics on the Liability of the Participants*

Published online by Cambridge University Press:  16 February 2016

Miriam Gur-Arye
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Extract

Personal characteristics may be relevant to criminal liability in one of two cases. Firstly, in offences which can only be committed by an actor with a special status (offences of delicta propria): for example, bigamy, committed by a “married person”; perjury which only a “witness” can commit; corruption by a “public servant”. Secondly, where the personal characteristic either aggravates or mitigates the basic offence. Thus, in Israeli law, parricide —killing one's parents—defined in sec. 300(a)(1) of the Penal Law, 1977, is an aggravated form of manslaughter; while infanticide—where a mother kills her newborn baby is, according to sec. 303(a) of the Law, a mitigated form of either murder or manslaughter. Similarily, stealing by an employee, according to sec. 391 of the Penal Law, is an aggravated form of theft; and stealing by public servant, according to sec. 390, is an even more aggravated form of stealing by employee.

In this paper I shall limit myself to the second set of characteristics. My aim is to examine the solution required under the law of complicity in instances where the personal characteristic, which either aggravates or mitigates the offence, obtains only in one of the participants. Will the secondary party, who either instigated or aided a son to kill his father, be held liable as an accomplice to the aggravated offence of parricide committed by the son? Will a similar conclusion be applied where the accomplice instigated infanticide? What about an employee who aided another to steal from his employer? And to what offence will the principal offender in that case be held liable?

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Israel Law Review , Volume 19 , Issue 2 , Spring 1984 , pp. 253 - 283
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1984

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References

1 L.S.I. Special Volume. The section provides: “300. (a) A person who does one of the following is guilty of murder and is liable to imprisonment for life and only to that penalty: (1) by an unlawful act or omission wilfully causes the death of his father or mother or grandfather or grandmother.”

2 Defined in secs. 298–299 of the Penal Law: “298. A person who by an unlawful act or omission causes the death of another is guilty of manslaughter and liable to imprisonment for twenty years. 299. An unlawful omission is an omission amounting to culpable negligence to discharge a duty, whether or not such omission is accompanied by an intention to cause death or bodily harm.”

3 The section provides: “303. (a) Where a woman by a wilful act or omission causes the death of her child under twelve months of age and at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation subsequent to the birth of the child, then, notwithstanding that according to the circumstances the offence comes within the definition of murder or manslaughter, she is liable to imprisonment for five years.”

4 The section provides: “391. An employee who steals a thing which is the property of his employer or came into his possession on account of his employer and the value of which exceeds five hundred pounds is liable to imprisonment for seven years.”

5 Defined in secs. 383–384 of the Penal Law, liable to three years imprisonment.

6 The section provides: “390. A public servant who steals a thing which is the property of the State or came into his possession by virtue of his employment and the value of which exceeds five hundred pounds is liable to imprisonment for ten years.”

7 Graven, P., An Introduction to Ethiopian Penal Law (Addis Ababa, 1965) 116.Google Scholar See also Bernstein, M., Complicity in Crime, Comparative Study of the Israeli, English and French Systems (Doctoral Thesis, Jerusalem, 1971, in Hebrew) 77.Google Scholar

8 Graven, ibid.

9 See Shmueli v. State of Israel (1974) 28 (i) P.D. 281 at 291–2; Feller, S.Z., “Section 24 of the Criminal Code Ordinance, 1936—Is it Designed for Aiding and Abetting?” (1975) 6 Mishpatim 275 at 283–8.Google Scholar

10 The section provides: “28. Where two or more persons associate to pursue an unlawful purpose, and in the course of its pursuit an offence is committed, which by its nature is a probable consequence thereof, each of them present at the commission of the offence is deemed to have committed it.” (emphasis added). The Israeli courts have held that this section widens the liability of the aider. (A leading case representing this view is Dahan & Ben Haroush v. State of Israel (1969) 23 (i) P.D. 197). This view was, however, criticized. It was argued that the conditions in the section apply to the co-principal rather than to the aider: see Feller, ibid.

11 The section provides: “29. Where a person counsels another person to commit an offence, and an offence is thereafter committed by the other person, the first-mentioned person is deemed to have counselled the offence actually committed even if it is not committed in the way counselled or is not the offence counselled, so long as the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.” (emphasis added).

12 Past president of the Supreme Court of Israel, Agranat P., headed the committee, and the proposal was published in (1980) 10 Mishpatim 203.

13 Silving, H., Constituent Elements of Crime (Springfield, Ill, 1967) 150–151Google Scholar; Bernstein, supra n. 7.

14 Silving, ibid.

15 See: Graven, supra n. 7; Bernstein, ibid., at 77–79.

16 For that view of complicity, see: Silving, H., Criminal Justice (Buffalo, N.Y., 1971) Vol. 1, pp. 451–459Google Scholar; Silving, supra n. 13 at 133–137, 153; Fletcher, G., Rethinking Criminal Law (Boston-Toronto, 1978) 641–644.Google Scholar

17 That distinction results in classifying the defences in the criminal law as either “justifications” or “excuses”. For that distinction under German law, see: Eser, A., “Justification and Excuse” (1976) 24 Am. J. of Comp. L. 621CrossRefGoogle Scholar; Fletcher, ibid., at 575–579.

18 Graven, supra n. 7.

19 Ibid., at 117.

20 Silving, supra n. 13. See also Bernstein, supra n. 7 at 112.

21 I have elaborated on that view elsewhere, see: Gur-Arye, M., “Complicity and not Causation; Principal and not Accomplice” (1981) 11 Mishpatim 518 at 519.Google Scholar See also: Feller, S.Z., “The Provisions Relating to the Typical Form of an Offence and their Application to its Derivative Forms of Criminal Conduct” (1967) 2 Is.L.R. 580 at 583.Google Scholar

22 For an expanded discussion of aggravating or mitigating characteristics, see: Kremnitzer, M., Principles of Structure and System of the Specific Offences, (Doctoral Thesis, The Hebrew University of Jerusalem, 1980) 94–144.Google Scholar

23 See Graven, supra n. 7 at 117 and Kremnitzer, ibid., at 129–130.

24 In a similar spirit, see: Kremnitzer, ibid.

25 See text at n. 19 supra.

26 Graven, supra n. 7 at 119.

27 For that classification see, Kremnitzer, supra n. 22 at 94–104.

28 For a discussion of both the implications of, and the criteria for, the classification, see Kremnitzer, ibid.

29 This section is cited in n. 4 supra.

30 See text at n. 19 supra.

31 In this spirit, see Kremnitzer, supra n. 22 at 131.

32 Ibid., at 281–283.

33 This section is cited in n. 1 supra.

34 See nn. 10–11 supra.

35 Dahan and Ben Haroush, supra n. 10; Abdul Hadi and Za'arur v. A.G. (1949) 3 P.D. 13.

36 Feller, supra n. 9 at 290–291; Williams, G., Criminal Lasv, The General Part (London, 2nd ed., 1961) 402Google Scholar; Smith, J.C. and Hogan, B., Criminal Law (London, 4th ed., 1978) 129.Google Scholar

37 Dahan and Ben Haroush, supra n. 10 at 229–232.

38 Sec. 28 of the proposal, supra n. 12.

39 See Kremnitzer, supra n. 22 at 139–143 and the references thereof. In Israeli Law, on the other hand, recidivism aggravates only three offences, see sec. 436 of the Penal Law.

40 See for example, sec. 29 of the West Germany Penal Code, 1975; sec. 13 of the Austrian Penal Code, 1974; sec. 40 of the Ethiopian Penal Code, 1957.

41 See sec. 28(2) of the West German Penal Code, 1975; sec. 40 of the Ethiopian Penal Code, 1957; sec. 26 of the Swiss Penal Code, 1942; sec. 17 of the Polish Penal Code, 1970; Sec. 22(3) of the Yugoslavian Penal Code, 1951; sec. 49(2) of the Greek Penal Code, 1951.

42 See Graven, supra n. 7 at 118; Logoz, P., Commentaire du Code Pénal Suisse, Partie Générale (Paris, 2nd ed., 1976) 140.Google Scholar Sec. 118 of the Italian Penal Code, 1931 expressly provides that recidivism affects only the liability of the party in whom it obtains.

43 See M. Gur-Arye, supra n. 20 at 525–526; S.Z. Feller, supra n. 9 at 287–288.

44 The full version of the section is brought in n. 3 supra.

45 See Silving, H., Constituent Elements of Crime, supra n. 13 at 151.Google Scholar

46 In a similar spirit see Kremnitzer, supra n. 22 at 132.

47 See Kremnitzer, Ibid., at 143 and the references in n. 176 there. In Israeli Law see sec. 209(b) of the Penal Law compared to sec. 209(a).

48 In several legal systems that conclusion is expressed within the definition of infanticide, see: sec. 302 of the French Penal Code, 1810; sec. 292 of the Dutch Penal Code, 1886; sec. 1, chap. 22 of the Finnish Penal Code, 1889; sec. 527 of the Ethiopian Penal Code, 1957.

49 See the traditional approach of the common law infra in the text at n. 52.

50 See supra n. 39.

51 For such a legislative technique in other contexts as well, see, Behar, R., “The Relation between Lex Generalis and Lex Specialis” (1978) 9 Mishpatim 59.Google Scholar

52 That approach was described in Moore v. Lowe, 116. W. Va. 165, 180 S.E. 1 (1935) at 3. See also the citation from Russell brought by Smith and Hogan (supra n. 36) at 132.

53 [19541 Crim. L. R. 141.

54 Ibid., at 143. Similar conclusion was reached by the American Court in Moore v. Lowe, supra n. 52. In that case the instigator instigated a provoked principal to kill. The court held that the provocation ought to affect the liability of the principal alone: only he will be held liable for manslaughter. The instigator, on the other hand, was held liable for murder. In this context, I may only mention that the said conclusion may apply only in systems where provocation is indeed a mitigating characteristic (i.e. where manslaughter is a mitigated form of murder). Tn Israeli Law, on the other hand, provocation is a negative ingredient of murder; i.e. it negates premeditation which is required to constitute murder. The importance of the difference between constitutive ingredients of the offence and aggravating or mitigating characteristics in the context with which we are dealing, was explained in Part II of this paper, supra.

55 Williams, G., Textbook of Criminal Law (London, 1978) 323.Google Scholar See also, Williams, G., Criminal Law, The General Part, supra n. 36 at 390–391Google Scholar; Smith & Hogan supra n. 36 at 132.

56 Gur-Arye, M., “Committing an Offence by Another”, in A Collection of Essays in Memory of the Late Justice Sussman (Jerusalem, 1984, in Hebrew) 319.Google Scholar

57 In this context it is sufficient to note that, since the liability of the accomplices is a derivative liability, one will usually not be able to derive a further form of punishable conduct from the accomplices' liability. An attempt to aid is not punishable (although an attempt to instigate may be punished under a special norm prohibiting solicitation), and neither aiding to instigate nor instigating to aid are punishable as such. Conversely, one can derive all types of conduct—attempt, instigating and aiding—from the liability of the perpetrator, even where he commits the offence through an innocent agent.

58 The section is cited in n. 3 supra.

59 In the text at nn. 32–33 supra.

60 In Israeli Law incitement is punishable under sec. 34 of the Penal Law.

61 See n. 19 supra, and the text therein.

62 See n. 14 supra.

63 In several decisions, the U.S. Courts held that an instigator, who while being provoked instigated the principal to kill, will only be held liable for manslaughter, although the principal is liable for murder. See: Moore v. Lowe, supra n. 54; Speer v. State 52 Ga. App. 209. 182 S.E. 324 (1935); People v. Blackwood 35 Col. App. 2d. 728; 96 P. 2d 982 (1939).

64 (1980) 34 (i) P.D. 361.

65 Ibid., at 363.

66 Ibid.

67 For that assertion, see the references at n. 9 supra and also, M. Gur-Arye, supra n. 21.

68 Surgon & Cohen, supra n. 64 at 363.

69 See n. 55 supra.

70 ibid.

71 See the text following n. 55 supra.