stores were found in the possession of the prisoner. The court is not called upon to express any opinion on that point, and I am unable to concur, as at present advised, in that opinion. Possession means, not merely manual possession, but a property in the thing, though in the custody of another person. That definition applies to the construction of this statute, and I do not think that a thing has ceased to be in the possession of A. because he has taken his hands off it, and those of B. may happen to be upon it. However, I desire not to be understood as giving that as my final opinion upon the point. My judgment proceeds on the other point, and I agree with the rest of the court.

COCKBURN, C. J. I certainly understood that the question whether the possession was sufficiently proved to be in the prisoner in this case was not part of the matter submitted or to be adjudicated upon by us. Lest I should be considered as sharing in the opinion of my brother, MARTIN, I must say that I hold a diametrically opposite opinion upon it, and I do so because the point has been already expressly decided by this court in the case of Reg. v. Smiley,' which was precisely similar to this in all its circumstances, and in which it was held by this court that when the stores were in possession of a railway company to which they had been sent by the prisoner for the purpose of being conveyed to another place, the possession of the railway company was the possession of the prisoner, and that he was rightly convicted under this statute. The question is, therefore, concluded.

Conviction quashed.

POST-OFFICE LAWS-WILLFUL STOPPING OF UNITED STATES

MAIL-MISTAKE.

UNITED STATES v. HART.

[Pet. C. C. 390.]

In the United States Circuit Court for the District of Pennsylvania, April, 1817.

Knowingly and Willfully Retarding the Passage of the Mail.-H. was indicted under a statute for knowingly and willfully retarding the United States mail. It ap. peared that H. was a constable and had arrested the driver of a carriage in which the mail was carried, because in his opinion he was driving through the streets at a rate to endanger the lives of the inhabitants. Held, that H. was not guilty of knowingly and willfully retarding the passage of the mail.

This was an indictment for knowingly and willfully retarding the passage of the mail. It was proved that the defendant, being one of the

18 Cox Crim. Cas. 179.

high constables of the city of Philadelphia, did on one occasion stop the mail stage having the mail in it, in its passage through Market Street to the post-office, upon the ground that the stage was going at an immoderate rate, so as to endanger the lives and safety of the citizens. On another occasion it was stopped by the defendant in Chestnut Street, because the stage body containing the mail was placed on runners in consequence of the ground being covered with snow, and no bells were placed on the horses.

The evidence offered by the defendant was very strong to prove that the stage was passing very rapidly through Market Street, at the time it was stopped by the defendant; some of the witnesses supposed it to be at the rate of eight or nine miles an hour.

The defendant justified his conduct under an ordinance of the city, which subjected every person to a fine who should drive at an immoderate rate in the city, so as to endanger the citizens thereof, or who should drive a carriage on runners without bells on the horses.

It was contended by the defendant's counsel that this ordinance afforded a complete justification to the constable; or, if not, that the driving, in a populous street in such a manner as to endanger the safety of the inhabitants, amounted to a breach of the peace at the common law, in which case the constable is authorized without warrant to arrest the party, and if he can to prevent the mischief which seems to be threatened. If so, the act of Congress ought not to be so construed as to render it criminal in any person to prevent a mail driver from breaking the peace, because a stoppage of the mail may be the consequence of such prevention. Such a stoppage, it was contended, is not within the meaning of the law. It should be some act performed with the intention to stop the mail, and not one where the stoppage of the mail is the consequence of a lawful act.

Secondly. It was urged that there was no part of the constitution which authorizes Congress to pass laws to punish acts of this kind, and if the law be constitutional, then, thirdly, it was insisted, that the thirtyfifth section of the law vests the jurisdiction in cases of this kind in the State courts, and that consequently this court has not jurisdiction.

WASHINGTON, J. It is unnecessary at this time to enter into an examination of the objections made to the constitutionality of this law, and to the jurisdiction of this court, as the defendant may have the full benefit of them on a motion in arrest of judgment, if the verdict should be against him, and there should be anything in the objections. I shall merely observe for the present, that by passing them over, it is not to be understood that the court means, in any respect, to countenance them.

If the ordinance of the city is in collision with the act of Congress, there can be no question but the former must give way. The Constitution of the United States, and the laws made in pursuance thereof, are declared by the constitution to be the supreme law of the land; and the judges, both of the Federal and State courts, are bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. But there is in truth no collision between this ordinance and the act of Congress on which this indictment is founded. If the mail carrier should violate the ordinance, the act of Congress does not shelter him from the penalty imposed by the ordinance. But the ordi nance does not authorize any officer to stop the mail, and consequently he can not justify his having done it under that ordinance.

The defendant's counsel have then resorted to the common law, which authorizes a constable, with a warrant, to prevent a breach of the peace; and it is contended, that for any person to drive through a populous city, at such a rate as to endanger the lives or the safety of the inhabitants, amounts to a breach of the peace. This view of the subject presents two questions. First. Was the mail carrier in the act of breaking the peace, at the time when he was stopped by the defendaht, and if he was, then, secondly, would this fact excuse him under a • fair interpretation of the law under consideration. As to the first question, the court is of opinion that driving a carriage through a crowded or populous street, at such a rate or in such a manner as to endanger the safety of the inhabitants, is an indictable offence at common law, and amounts to a breach of the peace. But, whether in the two cases stated in this indictment, the mail carrier so conducted himself as to come within this principle, is a question proper for the jury to decide. If they decide this fact affirmatively, then upon the principles of the common law, the constable was authorized without a warrant to prevent the peace from being broken. The second question will depend upon the fair construction of the act of Congress, and we are of opinion that it ought not to be so construed as to shield the carrier against this preventive remedy, because a temporary stoppage of the mail may be the consequence. Suppose the officer had a warrant against a felon who had placed himself in the stage, or that the driver should commit murder in the street in the presence of an officer, and then place himself on the box; could it be contended that the sanctity of the mail would extend to protect these persons against arrest, because a temporary stoppage of mail would be the consequence? We think not. It could not be said in any of these cases, that the act amounted to a willful stoppage of the mail.

Verdict, not guilty.

MISTAKE OF FACT-SUNDAY LAW-NO CRIME.

MYERS v. STATE.

[1 Conn. 503.]

In the Supreme Court of Errors of Connecticut, June, 1816.

A Statute Made it an Offense to let a carriage for the conveyance of persons on Sunday "except from necessity or charity." Held, that a person who let a carriage to be used on Sunday under the belief that it was to be used in a case of necessity or charity, could not be convicted, even though such was not the use intended to be or actually made of it.

This was information brought before the County Court on the statute for suffering and allowing A. M. and others to travel in a hackney coach owned by the defendant, from New Haven to Middletown, on the Sabbath-day. The information averred "that neither necessity nor charity was the cause of said A. M. and others traveling on said day, nor did the defendant suffer and allow said A. M. and others to travel and be conveyed in said carriage from necessity or charity, but did in fact suffer and allow of the same for the sole purpose of making gain to himself."

On the trial of the cause, on the plea of not guilty, the defendant offered evidence to prove, that his carriage, on the day stated in that information, was let by his driver to one Capt. Smith, who told the driver at the time, that he had just arrived from Liverpool, and hearing that his wife was sick at Middletown, wished to be transported home immediately; that this statement was communicated by the driver to the defendant, who consented, under the circumstances, that his carriage might go; that neither the defendant nor his driver, at that time, knew, or supposed that any other person than Capt. Smith was to go in the carriage; that after the defendant so gave his consent, he did not, on that day, see the carriage or driver; and that A. M. and others were invited to go in the carriage by Capt. Smith without the defendant's knowledge, and never paid the defendant or his driver any thing for their passage. The defendant thereupon contended that Capt. Smith was the only one whom he suffered and allowed to go in his carriage, within the meaning of the statute; and as to him, the defendant was excused on the ground that it was, and that he believed it to be, a case of necessity and charity. The court charged the jury, that so far as regarded A. M. and the other passengers, they would not be warranted in finding the defendant guilty, unless they should find that they went in the carriage by the defendant's consent; and that in regard to Capt. Smith, as it was admitted by the defendant that he suffered and allowed him to travel in his carriage from New Haven to Middletown, on the day stated in the

information, it was incumbent on the defendant, if he justified such act as a case of necessity or charity, to prove by evidence on the trial, that a case of necessity or charity existed; and that the representation of Capt. Smith to the driver did not in law amount to a justification, unless the same was proved to have been true when made.

The jury having returned a verdict of guilty, the defendant filed his bill of exceptions to the charge of the court, and thereupon brought a writ of error in the Superior Court; which was continued to the next term, for the purpose of taking the advice of the nine judges, in the meantime, on the question of law.

The case was submitted without argument.

SWIFT, C. J. The letting of a carriage on Sunday, on the ground of necessity or charity, is not prohibited by the statute. If then, a man acts honestly on such principle, and really believes that a case of necessity or charity exists, he is not criminal. It is true, a man may be deceived and imposed upon by falsehood and misrepresentation; yet if he only believes that the case exists, and acts on that ground, it is as much a deed of charity in him, if the fact does not exist, as if it does. It is a letting the carriage as a matter of charity. Unless this construction be adopted, a man may be convicted of a crime, when he had no intent to violate the law, and when his object was to perform a deed of charity conformable to law. This would oppugn the maxim that a criminal intent is essential to constitute a crime.

It is true on this construction, attempts may be made to evade the statute; but in all cases it will be a question of fact to the jury whether the party acted under a serious impression of the truth of the representation made to him. If there be any appearance of collusion, any management to elude the statute, then the excuse ought not to avail; and by the exercise of a proper discretion, the violation of this law may commonly be prevented. But on a different construction, all works of charity would be prevented. If a man is bound to prove not only that he believed it to be an act of charity, but that the facts existed, otherwise he should be liable to be punished, there would be very great danger in performing the charity which the statute does not prohibit.

The court, then, in charging the jury that the facts constituting the act of charity must be proved to have existed, committed an error. They should have directed the jury, if they found that the defendant had reasonable ground to believe from the representation made to him that the case of charity existed, and that he honestly acted under the impression of that belief, they ought to find him not guilty.

I am of opinion there is error in the judgment of the County Court.