英文法律词典 D-70

DISCREPANCY¹. A difference between one thing and another, between one writing and another; a variance². (q. v.)

2. Discrepancies³ are material and immaterial. A discrepancy is immaterial when there is such a difference between a thing alleged⁴, and a thing offered in evidence, as to show they are not substantially the same; as, when the plaintiff in his declaration for a malicious⁵ arrest averred⁶, that "the plaintiff, in that action, did not prosecute⁷ his said suit, but therein made default," and the record was, that he obtained a rule to discontinue. 4 M. & M. 2 5 3. An immaterial discrepancy is one which does not materially affect the cause as, where a declaration stated that a deed bore date in a certain year of our Lord, and the deed was simply dated " March 30, 1701." 2 Salk. 658; 19 John. 49 5 Taunt⁸. 707; 2 B. & A. 301; 8 Miss. R. 428; 2 M'Lean, 69; 1 Metc. 59; 21 Pick. 486.

DISCRETION⁹, practice. When it is said that something is left to the discretion of a judge, it signifies that he ought to decide according to the rules of equity¹⁰, and the nature of circumstances. Louis. Code, art. 3522, No. 13; 2 Inst. 50, 298; 4 Serg. & Rawle, 265; 3 Burr. 2539.

2. The discretion of a judge is said to be the law of tyrants¹¹; it is always unkown; it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice¹², folly¹³, and passion, to which human nature is liable. Optima lex quae minimum relinquit arbitrio judicis: optimus judex qui minimum sibi. Bac. Aph; 1 Day's Cas.. 80, ii.; 1 Pow. Mortg. 247, a; 2 Supp. to Ves. Jr. 391; Toull. liv. 3, n. 338; 1 Lill. Ab. 447.

3. There is a species of discretion which is authorized¹⁴ by express law, and, without which, justice cannot be administered; for example, an old offender¹⁵, a man of much intelligence and cunning, whose talents render him dangerous to the community, induces a young man of weak intellect to commit a larceny¹⁶ in company with himself; they are both liable to be punished for the offence. The law, foreseeing such a case, has provided that the punishment should be proportioned, so as to do justice, and it has left such apportionment to the discretion of the judge. It is evident that, without such discretion, justice could not be administered, for one of these parties assuredly deserves a much more severe punishment than the other.

DISCRETION, crim. law. The ability to know and distinguish between good and evil; between what is lawful¹⁷ and what is unlawful.

2. The age at which children are said to have discretion, is not very accurately¹⁸ ascertained¹⁹. Under seven years, it seems that no circumstances of mischievous²⁰ discretion can be admitted to overthrow²¹ the strong presumption²² of innocence²³, which is raised by an age so tender. 1 Hale, P. C. 27, 8; 4 Bl. Coin. 23. Between the ages of seven and fourteen, the infant is, prima facie, destitute²⁴ of criminal design, but this presumption diminishes as the age increases, and even during this interval²⁵ of youth, may be repelled²⁶ by positive evidence of vicious intention; for tenderness of years will not excuse a maturity²⁷ in crime, the maxim²⁸ in these cases being, malitia supplet aetatem. At fourteen, children are said to have acquired legal discretion. 1 Hale, P. C. 25.