crime charged being a felony. The appellant may, as claimed by the prosecutting officer, "intentionally, consciously and knowingly," exclude the vote. Still, he would not be guilty, unless it was done with a felonious intent. The recorder's charge was erroneous. It is submitted that to "willfully and knowingly exclude a vote" is not a felonious act in contemplation of law; it must have been done "corruptly, maliciously, criminally.” 1 John McKeon, district attorney, and John Vincent (assistant), for the People, respondent. The facts disclose a willful intent to defy the law. The willful intent, like premeditation and deliberation in murder cases, must be derived from the circumstances surrounding the act claimed as criminal. The willful intent was a question of fact for the jury, and they, by their verdict, found this fact to exist, so that the only remaining question in this connection is: Was there evidence in the case upon which to base such a finding? The evidence fully supports this finding of fact, and even thought it may be argued that the evidence is slight, yet a strong circumstance which weighed against the theory that it was a simple error of judgment, was the utter absence of any explanation. The inspectors' duties were simply ministerial. 195 BRADY, J., after stating the facts as above. There is no doubt that the defendant, as one of the inspectors, committed a grave error in refusing to accept the vote of Gerdes, and that it resulted in depriving the voter of the highest privilege he can exercise under our form of government. But the statute requires that the exclusion shall be willful, and to be willful there must exist, if not malice, a decided intention designedly and purposely to exclude the vote. To do an act willfully is to do it willingly by design-"on purpose. Such was not this case. The inspectors assigned the reason. It was not sufficient in law, it is true, but they were evidently impressed and sought advice from the chief of the bureau of elections, who suggested what he considered to be the proper mode of disposing of the controversy. He was in error, it is true, but being persons uneducated in law, and perhaps not sufficiently advised of their duties as to understand them perfectly, they placed reliance upon the advice thus given, and by a person connected with the bureau of elections. This deprives the case of the essential element under the statute, of malice or deliberate design and intent, and renders it necessary to reverse the judgment pronounced against the appellant. The learned recorder charged the jury that if they came to the conclusion that Gerdes was a legal voter, and had the legal right to vote, and that the defendant willfully excluded his vote, knowing at the time that he was duly and legally authorized to vote at that election, it was a felonious act on his part and within the meaning of that term, and that he would be guilty of the offense charged in the indictment. This was excepted to, and the exception seems to have been well taken, because the proposition declared is that if the defendant knew that the voter was legally authorized to vote, and his vote was excluded, it was willfully done. This is not justified by the evidence in the case. The learned recorder also charged the jury that if a majority of the board, acting as a board, the defendant being one of the majority, willfully and know 1 See authorities, supra. Election Laws, sec. 67. Leighton v. People, 10 Abb. Pr. (. 8.) 261; Sindram v. People, 88 N. Y. 196; People v. Majone, 1 N. Y. Crim. Rep. 86. 4 See charge of Justice Davis, In re Hall. 5 Worcester's Dictionary. ingly, all being actuated with the same common intent and motive, feloniously did exclude the vote of Gerdes, the act of one would be the act of all, or the act of the majority who concurred in excluding the vote, and that they, that is, the persons composing the majority of the board, would be jointly and severally liable, and should be convicted. This was stating the law of the case accurately, because it presented the necessary elements to justify a conviction, namely, that the defendant should be actuated by a common intent and motive feloniously to exclude the vote of Gerdes. If the intention feloniously existed, then the vote would be willfully excluded, and the appellant would be within the provisions of the statutes, and liable to conviction and punishment. The proposition which runs through the charge seems to be that if the vote was excluded, the defendant knowing that Gerdes was entitled to vote, he having the necessary qualifications and the right to do so, it was a willful act to exclude the vote, and one, therefore which came within the provisions of the statute. This is not the law of this case, although the general proposition is correct, because it is evident that the exclusion of the vote by the appellant rested upon the proposition that some person had voted in his name, and that the inspectors thought they had no power to receive another vote, such vote having been received, although erroneously. The suggestion emanating from the inspectors to Mr. Gerdes that he should procure a mandamus seems to rest upon no other proposition than that they should be thus protected in doing what they considered would be an erroneous exercise of their duty, viz.: the receipt of the vote when one had already been given in the name of the voter presenting his ballot. If the construction of the statute be that the mere presentation of a vote, by a person who is known to be qualified as a voter, is sufficient, under circumstances such as presented themselves in this case, to justify the conviction as an act willfully done, then there must be a departure from rules which govern cases of a kindred character and which seem to have been well settled by the adjudged cases. For example, in the case of Jenkins v. Waldron,1 it was held that an action on the case would not lie against inspectors of an election for refusing to receive the vote of a person legally qualified, without proving malice express or implied. The court said in that case: "It is not alleged or proved that the inspectors fraudulently or maliciously refused to receive the vote. This we consider absolutely necessary to the maintenance of an action against the inspectors of an election." And in Bishop on Statutory Crimes, it is stated as a proposition in reference to the persons intrusted by law to pass upon the qualification of voters, that they are not answerable to an indictment when what they do, is done through mistake either of law or fact, being honestly done. It must be further said that the section under which the defendant was indicted makes the exclusion of a vote a felony, and the general rule of law in regard to a felony is that there must be an intent to do wrong, and the intent must be proved beyond reasonable doubt. It is true that the inspectors are not invested with any discretion as to the rejection or acceptance of a vote when the person offering it has the necessary qualifications authorizing him to express it; but the language of the statute is "willfull." It is not that if they reject the vote of a person duly qualified they may be convicted, but they must do it will fully, and that means with knowledge aforethought and with a wicked design. If this be not so, then the word willful has no force in the statute and might just as well be expunged. For these reasons it is thought, as already suggested, that the judgment must be reversed and a new trial ordered, upon which the People may be able to show from facts and circumstances, the existence of a deliberate intent or design to do wrong. It is the determination of this court, and must be of every tribunal in the State, to preserve unconditionally and absolutely the right of a qualified voter to exercise his franchise, and to punish, whenever the facts justify it within the provisions of the statute, any departure from the strict duty of the inspectors, who in reference to the vote are the depositaries of a great public trust; and this suggests what has frequently been stated both in and out of the courts of justice, that inspectors of election should be educated and intelligent men, thoroughly instructed in the duties that they are to perform, so that when the voter presents himself they shall understand precisely the duties incumbent upon them, and thus preserve the absolute right of the voter, without interference and without impediment to express his vote, if he possesses the qualifications of the statute and is willing to take the oath required by law. It may be troublesome to make selections of such persons, but the importance of doing it results from the character of the duties to be performed as illustrated by this case, in which it is quite clear that if the inspectors had thoroughly understood their duties the vote of Gerdes would not have been excluded. Judgment reversed and new trial ordered. DAVIS, P. J., and DANIELS, J., concur. § 181. Officer of Election - Receiving Illegal Vote. A judge of election is not criminally liable for receiving illegal votes when he receives them honestly acting on a mistake of law.1 II. IGNORANCE AND MISTAKE OF FACT. § 182. Act done Ignorantly or Mistakingly not a Crime.-It is a sound principle of law that an act done ignorantly or mistakingly is not a crime. The cases in the succeeding sections will illustrate the extent of this rule. The foundations of this principle are reviewed at length by Mr. Justice BRETT in his dissenting opinion in R. v. Prince. In that case the prisoner was indicted under 24 and 25 Victoria,* for that he did unlawfully take an unmarried girl (one Annie Phillips), being under the age of sixteen years, out of the possession and against the will of her father, and, it was proved on a trial that he did take an unmarried girl out of the possession and against the will of her father, and that when he did so, the girl was under the age of sixteen years. But the jury found that the girl went with the prisoner willingly; that she told the prisoner that she was eighteen years of age; that he believed she was eighteen years of ago, and that he had reasonable ground for so believing. The question was, whether upon such proof and such findings of the jury, the prisoner ought or ought not, in point of law, to be pronounced guilty of the offense with which he 1 State v. McDonald, 4 Harr. 555 (1845); State v. Porter, 4 Harr. 556 (1845). 2 R. v. Willmett, 3 Cox. 281 (1848); State . Alphin, 84 N. C. (1881). 3 L. R. 2 C. C. R. 154. 4 ch. 100, sec. 55. was charged. Mr. Justice BRETT, in holding that C. was not guilty says: There are enactments which by their form seem to constitute the prohibited acts into crime, and yet by virtue of which enactments the defendants charged with the committal of the prohibited acts have been convicted in the absence of the knowledge or intention supposed necessary to constitute a mens rea. Such are the cases of trespass in pursuit of game, or of piracy of literary or dramatic works, or of the statutes passed to protect the revenue. But the decisions have been based upon the judicial declaration that the enactments do not constitute the prohibited acts into crime or offences against the Crown, but only prohibit them for the purpose of protecting the individual interest of individual persons, or of the revenue. Thus, in Lee v. Simpson,1 in an action for penalties for the presentation of a dramatic piece, it was held that it was not necessary to show that the defendant knowingly invaded the plaintiff's right. But the reason of the decision given by WILDE, C. J., is: "The object of the Legislature was to protect authors against the piratical invasion of their rights. In the sense of having committed an offense against the act, of having done a thing that is prohibited, the defendant is an offender. But the plaintiff's rights do not depend upon the innocence or guilt of the defendant." So the decision in Morden v. Porter,3 seems to be made to turn upon the view that the statute was passed in order to protect the individual property of the landlord in game reserved to him by his lease against that which is made a statutory trespass against him, although his land is in the occupation of his tenant. There are other cases in which the ground of decision is that specific evidence of knowledge or intention need not be given, because the nature of the prohibited acts is such that, if done, they must draw with them the inference that they were done with the criminal mind or intent, which is a part of every crime. Such is the case of the possession and distribution of obscene books. If a man possesses them, and distributes them, it is a necessary inference that he must have intended that their first effect must be that which is prohibited by statute, and that he can not protect himself by showing that his ultimate object or secondary intent was not immoral. This and similar decisions go rather to show what is mens rea, than to show whether there can or can not be conviction for crime proper, without mens rea. As to the last question, it has become very necessary to examine the authorities.5 "And as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all, so that, to constitute a crime against human laws, there must be first a vicious will, and secondaryan unlawful act subsequent upon such vicious will. Now there are three cases in which the will does not join with the act: 1. Where there is a defect of understanding, etc. 2. Where there is understanding and will sufficient residing in the party, but not called forth and exerted at the time of the action done, which is the case of all offenses committed by chance or ignorance. Here the will sits neuter, and neither concurs with the act nor disagrees to it." And at page 105: "Ignorance or mistake is another defect of will, when a man intending to do a lawful act, does that which is unlawful; for here the deed and the will acting separately, there is not that conjunction between them which is necessary to form a criminal act. But this must be an ignorance or mistake in fact, and not an error in point of law. As if a man, intending to kill a thief or housebreaker in his own house, by mistake, kills one of his family, this is no criminal action; but if a man thinks he has a right to kill a person excommunicated or outlawed wherever he meets him, and does so, this is willful murder." In Fowler v. Padget,1 the jury found that they thought the intent of the plaintiff in going to London was laudable; that he had no intent to defraud or delay his creditors, but that delay did actually happen to some creditors. Lord KENYON said: "Bankruptcy is considered as a crime, and the bankrupt in the old law is called an offender; but it is a principle of natural justice and of our laws that actus non reum facit, nisi mens sit rea. The intent and the act must both concur to constitute the crime." And again: "I would adopt any construction of the statute that the words will bear, in order to avoid such monstrous consequences as would manifestly ensue from the construction contended for." In Hearne v. Garton,2 the respondents were charged upon an information, for having sent oil of vitriol by the Great Western Railway, without marking or stating the nature of the goods. By 20 and 21 Victoria, “every person who shall send or cause to be sent by the said railway, any oil of vitriol, shall distinctly mark or state the nature of such goods, etc., on pain of forfeiting," etc. By section two hundred and six, such penalty is recoverable in a summary way before justices, with power to imprison, etc. The respondent had in fact sent oil of vitriol unmarked, but the justices found that there was no guilty knowledge, but, on the contrary, the respondents acted under the full belief that the goods were correctly described, and had previously used all proper diligence to inform themselves of the fact. They refused to convict. It must be observed that in that case, as in the present, the respondents did in fact the prohibited acts, and that in that case, as in this, it was found, as the ultimate proof, that they were deceived into the belief of a different and non-criminal state of facts, and had used all proper diligence. The case is stronger, perhaps, than the present, by reason of the word "unlawfully" being absent from that statute. The court upheld the decision of the magistrates, holding that the statute made the doing of the prohibited acts a crime, and therefore that there must be a criminal mind, which there was not. "As to the latter reason, I think the justices were perfectly right; actus non reum facit, nisi mens sit rea. The act with which the respondents were charged is an offence created by statute, and for which the person committing it is liable to a penalty or to imprisonment; not only was there no proof of guilty knowledge on the part of the respondents, but the presumption of a guilty knowledge on their part, if any could be raised, was rebutted by the proof that a fraud had been practiced on them. I am inclined to think they were civilly liable." Lord CAMPBELL, C. J. "I was inclined to think at first, that the provision was merely protective; but if it created a criminal offense, which I am not prepared to deny, then the mere sending by the respondents, without a guilty knowledge on their part, would not render them criminally liable, although, as they took Nicholas' word for the contents of the parcel, they would be civilly liable." ERLE, J. In Taylor v. Newman, the information was under 24 and 25 Victoria: 5 "Whosoever shall unlawfully and willfully kill, etc., any pigeon," etc. The appellant shot pig 17 T. R. 509. 2 2 E. & E. 16, 28; L. J. (M. C) 216. 8 ch. 43, sec. 168. 44 B. & S. 89, 32; L. J. (M. C.) 186. 5 ch. 96, sec. 23. |