In R. v. Ricketts,1 the defendant was indicted under a statute for maliciously cutting one Webb with intent to obstruct, resist and prevent the lawful apprehension and detainer of the prisoner. It appeared that in the morning of the day mentioned in the indictment, the prisoner stole some wheat from an outhouse belonging to one J. Spilsbury. The wheat being soon after found in an adjoining field, Spilsbury, Webb and others watched near the spot expecting that the thief would come to carry it away, and that they should then be able to discover and apprehend him. In the course of the day the prisoner and another man walked into the field, and lifted up the bag containing the wheat. They were immediately pursued, and Webb seized the prisoner, without desiring him to surrender, or stating for what reason he was apprehended. A scuffle ensued, during which, before Webb had spoken, the prisoner drew a knife, and cut him across the throat. LAWRENCE, J. As Webb did not communicate to the prisoner the purpose for which he seized him, this case does not come within the statute. If death had ensued it could only have been manslaughter. Had a proper notification been made before the cutting, the case would have assumed a different complexion. The prisoner must be acquitted upon this indictment.

§ 208. Perjury.— So where a party honestly believes what he swears to, he is not guilty of perjury if the facts do not turn out to be as stated by him.2 "A witness by mistake or defect of memory may testify untruly without being guilty of perjury or any other crime."

§ 209. Piracy. - An attack made upon a United States vessel by an armed vessel with the avowed intention of repelling her approach or crippling her, upon a mistaken suggestion that she was a pirate is not a crime under the statute as to piracies.

$ 210. Possession of Government Property. - Ignorance of the nature of the property is a defence to an indictment of this kind."

In R. v. Cohen, the prisoner was indicted under a statute punishing the having in possession naval stores marked with the broad arrow (the government brand). From the evidence it appeared that the defendant assisted his father in carrying on an extensive business in London, as a metal merchant. On the day in question two casks were traced by the police to the warehouse of the defendant, and a few minutes after the delivery the police officers entered and found the casks in the passage unopened. They asked the defendant where he obtained the casks from, and he said from a Mr. Warren, of Portsea. On being opened by the officers they were found to contain a quantity of naval stores marked with the broad arrow. On the desk in the counting-house was found a bill for the carriage of two casks of metal from Portsea, made out to

13 Camp. 68 (1811).

2 Johnson v. People, 94 Ill. 505 (1880); R. v. Pepys, Peake, 138; R. v. Dunboyne, 3 C. & K. 1 (1850); Com. v. Cook, 1 Rob. (Va.) 729 (1842); Stewart v. State, 22 Ohio St. 477 (1872); Green v. State, 41 Ala. 419 (1868); Hood v. State, 44 Ala. 81 (1870); State v. Cockran, 1 Bailey, 50 (1828); Dempsey v. People, 20 Hun, 261 (1880).

Com. v. Douglass, 5 Metc. 243 (1842); R. v. Grindall, 2 C. & P. 563 (1827). And see R. v. Tucker, 2 C. & P. 500 (1826).

4 The Marianna Flora, 11 Wheat. 1 (1826). R. v. Sleep, 8 Cox, 472 (1861).

8 Cox, 41 (1858). And see R. v. Sleep, 8 Cox, 472 (1861).

Mr. H. Cohen. On the police officers requesting to be allowed to search the premises the defendant refused. Great resistance was made, and the officers were ejected by the defendant's workmen. It was held that to convict the defendant it was necessary to show that he knew the articles were marked with the broad arrow. WATSON, B. "I am of opinion that it is necessary in order to convict a person under this statute of having naval stores marked with the broad arrow in his possession, to show not only that he had them in his possession, but that he also knew the nature of the articles, and that they were marked with the broad arrow. The statute is no doubt couched in very general terms; it does not state in so many words that he must have them in his possession 'knowingly,' but that must be the true meaning of the statute. The word possession imports knowledge of that which is possessed. As to the question of possession, if it were necessary in this case, I should leave it to the jury to decide it, with the observation that, although the casks were brought to the prisoner's premises, there was no evidence of the terms on which they were sent, nor was any time given for examination or for exercising any discretion as to returning or rejecting them.

"The case of Regina v. Wilmott, before Mr. Justice Coltman, is precisely on all fours with this, and specifically points to a knowledge of the mark being there, otherwise there could be no conviction. This view appears to me to be one of sound law and sound sense, and gives the only reasonable interpretation to the statute. In my opinion it is necessary in point of law to show that the defendant did know that the articles had the broad arrow upon them, supposing it to be proved that they were in his possession, and there is no reasonable evidence to go to the jury of any such knowledge."

HILL, J. "I am of the same opinion. It is no offence under the second section of this statute, unless the person charged had possession of the goods, knowing them to be marked with the broad arrow. This is made clear by a reference to the recital in the first section. The possession in the second section is put in exactly the same category with the concealing, which is a positive act done by the individual in order to constitute the crime. In my opinion it is necessary to show that the person sought to be fixed with the crime, under the second section, had a knowledge that the goods were marked with the broad arrow, and if he was ignorant of that fact he is not guilty of any offence within the meaning of the statute. The application of common sense to the construction of the statute, shows that this must be so. If a couple of casks of old metal obtained from ships contained one thousand pieces, and one piece only bore the objectionable mark, could it be said that the person to whom the casks were sent was guilty of any criminal offense before he had opened the casks and seen the metal; and yet, if this application of the statute is insisted on, the Crown must go the whole length of contending for that absurdity. It appears to me, therefore, to be only applying plain common sense to the construction of this statute, to hold that no offence is committed under the second section unless it is shown that the individual in whose possession or custody the goods were, knew that they were marked with the broad arrow. Not guilty."

-It is not an offence

§ 211. Post-Office Laws-Obstructing the Mail. under the United States statute to stop the vehicle in which the mail is carried, the defendant being ignorant of it being a United States mail carriage.1

1 U. S. Hart, Pet. C. C. 390 (1817).

§ 212. Post-Office Laws - Penalty for Failure to Deliver Letter-Ignorance of its being in Defendant's Charge.—In United States v. Beaty,1 the prosecution was against the master and owner of a vessel for failing to deliver a letter in his charge under a statute prescribing a penalty in the case of the master, owner or captain of a steamboat who failed to deliver to the postmaster any letter given in his charge. On the trial it was ruled that it was not essential to a conviction that there was knowledge on the part of the master of the letter being in his charge. On motion for a new trial, however, this ruling was held wrong. JOHNSON, J., saying: "This suit was brought for the recovery of the penalty provided for a violation of the thirteenth section of the Post-office Act of 1845.2 That section declares in substance that nothing contained in the last named act shall have the effect or be construed to prohibit the conveyance or transportation of letters by steamboats as authorized by the sixth section of the act of 1825, regulating the Post-office Department,3 provided that the requirements of such sixth section be strictly complied with, by the delivery, within the time specified by that act, of all letters so conveyed not relating to the cargo or some part thereof, to the postmaster at the post or place to which such letters may be directed or intended to be delivered over from the boat; but it is expressly enacted that all the pains and penalties provided by that act for any violation of the provisions of the eleventh section thereof, shall attach in every case to any steamboat or to the owners and persons having charge thereof, the captain or other person having charge of which, shall not comply with the requirements of the sixth section of the act of 1825. The eleventh, by reference to previous sections, fixes the penalty at $150, and to recover which this action of debt has been instituted The sixth section of the act of 1825, above referred to, enacts substantially that it shall be the duty of every master or manager of any steamboat which shall pass from one post or place to another in the United States, where a post office is established, to deliver within three hours after his arrival, if in the daytime, and within two hours after the next sunrise, if the arrival be in the night, all letters and packets addressed to or destined for such post or place to the postmaster there; and if any manager or master of a steamboat shall fail so to deliver any letter or packet which shall have been brought by him or shall have been in his care or within his power, he shall incur the penalty therein prescribed; and every person employed on board any steamboat shall deliver every letter and packet of letters intrusted to him to the master or manager of such steamboat before the vessel shall touch at any other port or place; and for every failure or neglect so to deliver, a penalty of ten dollars shall be incurred for such letter or packet. These constitute the substance of the Post-office Acts, as far as applicable to the present case. On the trial the plaintiff proved that Robert Beaty, the defendant, was the master and owner of the steamboat, Arkansas, No. 4; that upon his arrival at Louisburg, in this State, from the city of New Orleans, at each of which places a post-office had been established, the clerk of the boat was in possession of a letter bearing date at New Orleans written by Mr. Greenwood residing there, and directed to Mr. Whisler at the town of Louisburg, and that the letter did not relate to the cargo of the boat or any part thereof; and that on the arrival of the boat at Louisburg, the postmaster there demanded the letter of the clerk of the boat who refused to deliver it to him, but did deliver

it to a private individual, who handed it to the person to whom it was addressed; and that it was not placed in the post-office at all. This was the substance of the evidence on the part of the plaintiffs. There was no evidence adduced, other than the above, to prove that the defendant had any knowledge that the letter was on board the boat or in the possession of the clerk, or that it was in his power, or that he knew of the failure and refusal of the clerk to deliver this letter to the postmaster at Louisburg upon the arrival of the steamboat there. Before the jury retired, at the request of the district attorney, the court, by the presiding justice (the Hon. PETER V. DANIEL), instructed them that the defendant, as master of the boat, was responsible for the acts of the clerk; and if they found from the evidence that he received the letter at New Orleans and brought it up to Louisburg, and there failed to deliver it to the postmaster, and that the letter did not relate to the cargo of the boat or any part thereof, the defendant was subject to the penalty, although he was in fact ignorant of its delivery at New Orleans, of its transmission, and of the failure of the clerk to deliver it to the postmaster at Louisburg. The judge found a verdict for the plaintiff for the penalty of $150, and the defendant has interposed this motion for a new trial on the ground of misdirection on the part of the court.

"Upon looking into the acts of Congress imposing this penalty and giving them the best consideration of which I am capable, I am of opinion that we erred in the instructions we gave to the jury and which doubtless influenced their finding. By the terms of the act of Congress, the defendant is subject to the penalty prescribed when he fails to deliver any letter or packet to the postmaster which shall have been brought by him or shall have been in his care or within his power. Now, as already observed, there was no evidence adduced to the jury from which they could presume that the defendant had brought the letter, or that it was in his care or within his power. In either of these cases, the letter must have been within his knowledge, for it could hardly be said to be brought by him or to be in his care or within his power, according to the obvious meaning of the act, if he was ignorant of the existence of the letter, its conveyance and destination. The clerk alone was proved to have had the letter at Louisburg in the absence of the defendant; and for anything that appeared from the evidence, the clerk may have.received the letter at New Orleans, secretly kept it in his own possession, and failed to deliver it to the defendant, or inform him that he had it, or place it in a situation to enable him to obtain a knowledge of it, or bring it to the knowledge of the defendant in any way. It is not necessary to bring express knowledge home to the defendant and the court is not to be so understood. But it is essential to show such facts and circumstances as render it probable that the defendant, by the use of ordinary and reasonable diligence, obtained that knowledge, or could have done so, and thus authorize the jury to presume it.

"If in the absence of all knowledge the master, or captain, or owner of the steamboat is absolutely responsible under this act for the conduct of the clerk, as the district attorney insists and as we instructed the jury, then the verdict was right; for in that view the liability was clearly established and the case fully made out on the part of the government. But under the circumstances of the case I think, as already stated, that we erred in instructing the jury that the defendant was responsible for the acts of the clerk; that it was not material whether the defendant did or did not know of the existence of the letter and that

in either event he was equally liable for the penalty provided the letter was delivered to the clerk, brought up by such clerk, and not delivered to the postmaster at Louisburg, according to the sixth section of the act of 1825. The clerk for every failure or neglect to deliver to the master of the boat any letter or packet of letters intrusted to him before the vessel touches at any other place incurs a penalty of ten dollars. It would seem strange indeed that the clerk should be subjected to the penalty of one hundred and fifty dollars for an omission to deliver a letter of the existence of which he was entirely ignorant. The act is penal in its consequences and must be strictly construed; and as knowledge is generally a principal and indispensable ingredient in offences, it would seem reasonable to hold the government to the proof of it, or to the proof of circumstances from which it might be fairly inferred, before the penalty can be demanded.

"The master of a steamboat is liable for this penalty when he fails to deliver a letter or packet which has been brought by him, or was in his care, or was in his power; but in my judgment the sound construction of the acts of Congress is that the defendant could not be placed in this category at all, when the letter was not within his knowledge, nor placed in a situation to enable him with the use of reasonable diligence to obtain such knowledge. Knowledge on his part, express or implied, I regard as essential to his liability, and without which the acts of Congress have no application and do not embrace the case. It is not to be supposed that it was the intention of the law-maker to inflict a penalty upon the master of a steamboat in a case where he was ignorant that a letter had been brought upon the boat, either by the clerk, or any person employed on board, and had not the means of ascertaining the fact by the use of reasonable diligence. This would be little less unjust than the disreputable device of the Roman tyrant who placed his laws and edicts on high pillars, so as to prevent the people from reading them, the more effectually to ensnare and bend the people to his purposes.

"For these reasons I think a new trial ought to be granted and it is so ordered; but as it was the error of the court which renders this necessary, the costs must abide the event of the suit. Ordered accordingly."

§ 213. Post-office Laws-Taking Letter from Post-office-Does not Include Taking the Letter Through Mistake or with Innocent Intent. In United States v. Pearce,2 this ruling was made by Mr. Justice MCLEAN in the following opinion: "This was an indictment under the post-office law. It contained two counts, as follows: "That the defendant was employed in the Postoffice department of the United States as an assistant to Lemuel Brown, the postmaster of the United States at the said township of Shiawassee, and did there and then unlawfully and forcibly detain from the said Lemuel Brown, postmaster, as aforesaid, two packages of letters with which he, the said Josiah Pearce, was then and there intrusted, as such assistant to the said Lemuel Brown, postmaster, as aforesaid, against the peace,' etc.

"And the jurors aforesaid, upon the oaths aforesaid, do further present that the said Josiah Pearce, to wit, on the 25th day of January, 1839, at the said township of Shiawassee, in the district aforesaid, unlawfully, fraudulently and deceitfully, did take from the mail of the United States three packages of letters, against the peace,' etc.

1 Stat. 104.

22 Mc Lean, 14 (1839).