A B C D E F
G H I J K L M 

Total read books on site:
more than 10 000

You can read its for free!


Text on one page: Few Medium Many
The same author (1 Cr. Prac. 521),
repeated in other words, the same idea: In order to render a
party criminally responsible, a vicious will must concur
with a wrongful act.

I quote from a more distinguished author:

Felony is always accompanied with an evil intention, and
therefore shall not be imputed to a mere mistake or
misanimadversion, as where persons break open a door, in
order to execute a warrant, which will not justify such
proceeding: _Affectio enim tua nomen imponit operi tuo: item
crimen non contrahitur nisi nocendi, voluntas intercedat_,
which, as I understand, may read: For your violation puts
the name upon your act; and a crime is not committed unless
the will of the offender takes part in it. (1 Hawk. P. C.,
p. 99, Ch. 25, 3.)

This quotation by Hawkins is, I believe, from Bracton, which
carries the principle back to a very early period in the
existence of the common law. It is a principle, however, which
underlies all law, and must have been recognized at all times,
wherever criminal law has been administered, with even the
slightest reference to the principles of common morality and
justice. I quote again on this subject from Mr. Bishop:

The doctrine of the intent as it prevails in the criminal
law, is necessarily one of the foundation principles of
public justice. There is only one criterion by which the
guilt of man is to be tested. It is whether the mind is
criminal. Criminal law relates only to crime. And neither in
philosophical speculation, nor in religious or moral
sentiment, would any people in any age allow that a man
should be deemed guilty unless his mind was so. It is,
therefore, a principle of our legal system, as probably it
is of every other, that the essence of an offense is the
wrongful intent without which it can not exist. (1 Bishop's
Crim. Law, 287.)

Again, the same author, writing on the subject of knowledge, as
necessary to establish the intent, says:

It is absolutely necessary to constitute guilt, as in
indictments for uttering forged tokens, or other attempts to
defraud, or for receiving stolen goods, and offenses of a
similar description. (1 Crim. Prac. 504.)

In regard to the offense of obtaining property by false
pretenses, the author says:

The indictment must allege that the defendant knew the
pretenses to be false. This is necessary upon the general
principles of the law, in order to show an offense, even
though the statute does not contain the word "knowingly." (2
Id. 172.)

As to a presumed knowledge of the law, where the fact involves a
question of law, the same author says:

The general doctrine laid down in the foregoing sections
(_i.e._, that every man is presumed to know the law, and
that ignorance of the law does not excuse), is plain in
itself and plain in its application. Still, there are cases,
the precise nature and extent of which are not so obvious,
wherein ignorance of the law constitutes, in a sort of
indirect way, not in itself a defense, but a foundation on
which another defense rests. Thus, if the guilt or innocence
of a prisoner depends on the fact to be found by the jury,
of his having been or not, when he did the act, in some
precise mental condition, which mental condition is the gist
of the offense, the jury in determining this question of
mental condition, may take into consideration his ignorance
or misinformation in a matter of law. For example, to
constitute larceny, there must be an intent to steal, which
involves the knowledge that the property taken does not
belong to the taker; yet, if all the facts concerning the
title are known to the accused, and so the question is one
merely of law whether the property is his or not; still he
may show, and the showing will be a defense to him against
the criminal proceeding, that he honestly believed it his
through a misapprehension of the law.

The conclusions of the writer here are correct, but in a part of
the statement the learned author has thrown some obscurity over
his own principles. The doctrines elsewhere enunciated by him,
show with great clearness, that in such cases the state of the
mind constitutes the essence of the offense, and if the state of
the mind which the law condemns does not exist, in connection
with the act, there is no offense. It is immaterial whether its
non-existence be owing to ignorance of law or ignorance of fact,
in either case the fact which the law condemns, the criminal
intent, is wanting. It is not, therefore, in an "indirect way,"
that ignorance of the law in such cases constitutes a defense,
but in the most direct way possible. It is not a fact which
jurors "may take into consideration" or not, at their pleasure,
but which they must take into consideration, because, in case the
ignorance exists, no matter from what cause, the offense which
the statute describes is not committed. In such case, ignorance
of the law is not interposed as a shield to one committing a
criminal act, but merely to show, as it does show, that no
criminal act has been committed. I quote from Sir Matthew Hale on
the subject. Speaking of larceny, the learned author says:

As it is _cepit_ and _asportavit_, so it must be _felonice_,
or _animo furandi_, otherwise it is not felony, for it is
the mind that makes the taking of another's goods to be a
felony, or a bare trespass only; but because the intention
and mind are secret, the intention must be judged of by the
circumstances of the fact, and these circumstances are
various, and may sometimes deceive, yet regularly and
ordinarily these circumstances following direct in the case.
If A., thinking he hath a title to the house of B., seizeth
it as his own ... this regularly makes no felony, but a
trespass only; but yet this may be a trick to color a
felony, and the ordinary discovery of a felonious intent is,
if the party doth it secretly or being charged with the
goods denies it. (1 Hale's P. C, 509.)

I concede, that if Miss Anthony voted, knowing that as a woman
she had no right to vote, she may properly be convicted, and that
if she had dressed herself in men's apparel, and assumed a man's
name, or resorted to any other artifice to deceive the board of
inspectors, the jury might properly regard her claim of right to
be merely colorable, and might, in their judgment, pronounce her
guilty of the offense charged, in case the constitution has not
secured to her the right she claimed. All I claim is, that if she
voted in perfect good faith, believing that it was her right, she
has committed no crime. An innocent mistake, whether of law or
fact, though a wrongful act may be done in pursuance of it, can
not constitute a crime.

[The following cases and authorities were referred to and
commented upon by the counsel, as sustaining his positions:
U. S. _vs._ Conover, 3 McLean's Rep., 573; The State _vs._
McDonald, 4 Harrington, 555; The State _vs._ Homes, 17 Mo.,
379; Rex _vs._ Hall, 3 C. & P., 409 (S. C. 14 Eng., C. L.);
The Queen _vs._ Reed, 1 C. &. M., 306 (S. C. 41 Eng., C.
L.); Lancaster's Case, 3 Leon, 208; Starkie on Ev., Part
IV., Vol. 2, p. 828, 3d Am. Ed.]

The counsel then said, there are some cases which I concede can
not be reconciled with the position which I have endeavored to
maintain, and I am sorry to say that one of them is found in the
reports of this State. As the cases are referred to in that, and
the principle, if they can be said to stand on any principle, is
in all of them the same, it will only be incumbent on me to
notice that one. That case is not only irreconcilable with the
numerous authorities and the fundamental principles of criminal
law to which I have referred, but the enormity of its injustice
is sufficient alone to condemn it. I refer to the case of
Hamilton _vs._ The People (57 Barb., 725). In that case Hamilton
had been convicted of a misdemeanor, in having voted at a general
election, after having been previously convicted of a felony, and
sentenced to two years imprisonment in the State prison, and not
having been pardoned; the conviction having by law deprived him
of citizenship and right to vote, unless pardoned and restored to
citizenship. The case came up before the General Term of the
Supreme Court, on writ of error. It appeared that on the trial
evidence was offered, that before the prisoner was discharged
from the State prison, he and his father applied to the Governor
for a pardon, and that the Governor replied in writing, that on
the ground of the prisoner's being a minor at the time of his
discharge from prison, a pardon would not be necessary, and that
he would be entitled to all the rights of a citizen on his coming
of age. They also applied to two respectable counselors of the
Supreme Court, and they confirmed the Governor's opinion. All
this evidence was rejected. It appeared that the prisoner was
seventeen years old when convicted of the felony, and was
nineteen when discharged from prison. The rejection of the
evidence was approved by the Supreme Court on the ground that the
prisoner was bound to know the law, and was presumed to do so,
and his conviction was accordingly confirmed.

Here a young man, innocent so far as his conduct in this case was
involved, was condemned for acting in good faith upon the advice
(mistaken advice it may be conceded), of one governor and two
lawyers to whom he applied for information as to his rights; and
this condemnation has proceeded upon the assumed ground, conceded
to be false in fact, that he knew the advice given to him was
wrong.



Pages: | Prev | | 1 | | 2 | | 3 | | 4 | | 5 | | 6 | | 7 | | 8 | | 9 | | 10 | | 11 | | 12 | | 13 | | 14 | | 15 | | 16 | | 17 | | 18 | | 19 | | 20 | | 21 | | 22 | | 23 | | 24 | | 25 | | 26 | | 27 | | 28 | | 29 | | 30 | | 31 | | 32 | | 33 | | 34 | | 35 | | 36 | | 37 | | 38 | | 39 | | 40 | | 41 | | 42 | | 43 | | 44 | | 45 | | 46 | | 47 | | 48 | | 49 | | 50 | | 51 | | 52 | | 53 | | 54 | | 55 | | 56 | | 57 | | 58 | | 59 | | 60 | | 61 | | 62 | | 63 | | 64 | | 65 | | 66 | | 67 | | 68 | | 69 | | 70 | | 71 | | 72 | | 73 | | 74 | | 75 | | 76 | | 77 | | 78 | | 79 | | 80 | | 81 | | 82 | | 83 | | 84 | | 85 | | 86 | | 87 | | 88 | | 89 | | 90 | | 91 | | 92 | | 93 | | 94 | | 95 | | 96 | | 97 | | 98 | | 99 | | 100 | | 101 | | 102 | | 103 | | 104 | | 105 | | 106 | | 107 | | 108 | | 109 | | 110 | | 111 | | 112 | | 113 | | 114 | | 115 | | 116 | | 117 | | 118 | | 119 | | 120 | | 121 | | 122 | | 123 | | 124 | | 125 | | 126 | | 127 | | 128 | | 129 | | 130 | | 131 | | 132 | | 133 | | 134 | | 135 | | 136 | | 137 | | 138 | | 139 | | 140 | | 141 | | 142 | | 143 | | 144 | | 145 | | 146 | | 147 | | 148 | | 149 | | 150 | | 151 | | 152 | | 153 | | 154 | | 155 | | 156 | | 157 | | 158 | | 159 | | 160 | | 161 | | 162 | | 163 | | 164 | | 165 | | 166 | | 167 | | 168 | | 169 | | 170 | | 171 | | 172 | | 173 | | 174 | | 175 | | 176 | | 177 | | 178 | | 179 | | 180 | | 181 | | 182 | | 183 | | 184 | | 185 | | 186 | | 187 | | 188 | | 189 | | 190 | | 191 | | 192 | | 193 | | 194 | | 195 | | 196 | | 197 | | 198 | | 199 | | 200 | | 201 | | 202 | | 203 | | 204 | | 205 | | 206 | | 207 | | 208 | | 209 | | 210 | | 211 | | 212 | | 213 | | 214 | | 215 | | 216 | | 217 | | 218 | | 219 | | 220 | | 221 | | 222 | | 223 | | 224 | | 225 | | 226 | | 227 | | 228 | | 229 | | 230 | | 231 | | 232 | | 233 | | 234 | | 235 | | 236 | | 237 | | 238 | | 239 | | 240 | | 241 | | 242 | | 243 | | 244 | | 245 | | 246 | | 247 | | 248 | | 249 | | 250 | | 251 | | 252 | | 253 | | 254 | | 255 | | 256 | | 257 | | 258 | | 259 | | 260 | | 261 | | 262 | | 263 | | 264 | | 265 | | 266 | | 267 | | 268 | | 269 | | 270 | | 271 | | 272 | | 273 | | 274 | | 275 | | 276 | | 277 | | 278 | | 279 | | 280 | | 281 | | 282 | | 283 | | 284 | | 285 | | 286 | | 287 | | 288 | | 289 | | 290 | | 291 | | 292 | | 293 | | 294 | | 295 | | 296 | | 297 | | 298 | | 299 | | 300 | | 301 | | 302 | | 303 | | 304 | | 305 | | 306 | | 307 | | 308 | | 309 | | 310 | | 311 | | 312 | | 313 | | 314 | | 315 | | 316 | | 317 | | 318 | | 319 | | 320 | | 321 | | 322 | | 323 | | 324 | | 325 | | 326 | | 327 | | 328 | | 329 | | 330 | | 331 | | 332 | | 333 | | 334 | | 335 | | 336 | | 337 | | 338 | | 339 | | 340 | | 341 | | 342 | | 343 | | 344 | | 345 | | 346 | | 347 | | 348 | | 349 | | 350 | | 351 | | 352 | | 353 | | 354 | | 355 | | 356 | | 357 | | 358 | | 359 | | 360 | | Next |

N O P Q R S T
U V W X Y Z 

Your last read book:

You dont read books at this site.