1911 Encyclopædia Britannica/Extenuating Circumstances

EXTENUATING CIRCUMSTANCES. This expression is used in law with reference to crimes, to describe cases in which, though an offence has been committed without legal justification or excuse, its gravity, from the point of view of punishment or moral opprobrium, is mitigated or reduced by reason of the facts leading up to or attending the commission of the offence. According to English procedure, the jury has no power to determine the punishment to be awarded for an offence. The sentence, with certain exceptions in capital cases, is within the sole discretion of the judge, subject to the statutory prescriptions as to the kind and maximum of punishment. It is common practice for juries to add to their verdict, guilty or not guilty, a rider recommending the accused to mercy on the ground of grave provocation received, or other circumstances which in their view should mitigate the penalty. This form of rider is often added on a verdict of guilty of wilful murder, a crime as to which the judge has no discretion as to punishment, but the recommendation is sent to the Home Office for consideration in advising as to exercise of the prerogative of mercy. Quite independently of any recommendation by the jury, the judge is entitled to take into account matters proved during the trial, or laid before him after verdict, as a guide to him in determining the quantum of punishment.

Under the French law (Code d’instruction criminelle, art. 345), it is the sole right and the duty of a jury in a criminal case to pronounce whether or not the commission of the offence was attended by extenuating circumstances (circonstances atténuantes). They are not bound to say anything about the matter, but the whole or the majority may qualify the verdict by finding extenuation, and if they do, the powers of the court to impose the maximum punishment are taken away and the sentence to be pronounced is reduced in accordance with the scale laid down in art. 463 of the Code pénal. The most important result of this rule is to enable a jury to prevent the infliction of capital punishment for murder. In cases of what is termed “crime passionel,” French juries, when they do not acquit, almost invariably find extenuation; and a like verdict has become common even in the case of cold-blooded and sordid murders, owing to objections to capital punishment.