"It was proved that Lemuel Brown was postmaster, and being about to leave the neighborhood for some months, he appointed Pearce, the defendant, assistant, the person who had acted as assistant in the office being unwell. After an absence of about three months Brown returned, and finding that the defendant had removed the office to his own house, and that there was complaint respecting the removal, he called on the defendant, at his house, in company with his former assistant, whose appointment had not been revoked, and informed the defendant that he would relieve him from any further care of the office, and would take the papers, etc. Certain letters directed to the postmaster, received in his absence, and others received by the last mail, and the dead letters, were handed to him; but the defendant refused to deliver the other letters, or pay over the money he had received for postage, and seizing a gun threatened to shoot the postmaster if he did not leave the house. The postmaster retired, and left the letters he had received with his former assistant, with instruction to act as his assistant. He did so, and handed out the letters in his possession as they were called for. The postmaster boarded at the house with the assistant at which the office was kept. In the course of two or three days after this, the defendant made oath before a justice of the peace that certain property had been stolen or fraudulently taken from him, specifying certain letters, etc., which were legally in his possession; on which a search warrant was issued, and the letters in the possession of the regular assistant taken from him, and he was arrested and taken before a justice of the peace. On examination the assistant was released, but the letters were delivered over by the justice to the defendant, who continued for some time to open the mail and hand out letters claiming a right to do so by virtue of his appointment.

"The postmaster then applied to the authority of the United States, instituted prosecution against the defendant, and, through the instrumentality of the marshal, obtained possession of the post-office, letters, and papers. The defendant offered evidence to prove that the postmaster had agreed to resign the office in his favor; that he had sold him the case in which the letters were deposited; that he had removed from Shiawasse, and, consequently, had, under the law and instructions of the department, vacated the office. And in support of this last position the post-office act was read, which provides that no person shall hold the office of postmaster who does not reside at the place where the office is kept. But the court held that this provision was directory to the posmaster-general, and, indeed, was imperative on him; but that until he acted, the postmaster and his sureties was responsible to the department, and to individuals who should be injured by any neglect of duty in the office. That if the postmaster had intended to remove, about which fact there was no contradictory evidence, the weight of the evidence being decidedly against the allegation that he had removed, it could constitute no justification to the defendant. The evidence being closed, the district-attorney claimed a conviction of the defendant under that part of the twenty-second section of the post-office act of 1825, which provides, that if any person shall steal the mail, or shall steal, or take from, or out of, any mail, or from, or out of, any post-office, any letter or packet therefrom, or from any post-office, whether with or without the consent of the person having the custody thereof, and shall open, embezzle or destroy, any such mail, letter, or packet, the same containing any article of value, etc., shall on conviction thereof, be imprisoned not less than two, nor exceeding ten years.' And it is insisted that a conviction should be had, also, 40

DEFENCES.

under the twenty-first section for the detention of letters, on the first count in the indictment.

"The twenty-first section provides, that if any person employed in any of the departments of the post-office establishment, shall unlawfully detain, or open, any letter, packet, or mail of letters, with which he shall be intrusted, or which shall have come into his possession, and which were intended to be conveyed by post,' he shall on conviction thereof, be punished, etc. The evidence does not show that the defendant detained any letters which came into his posession, and which were intended to be forwarded by mail;' and it is the detention of such letters that is punishable under this clause of the statute. It applies to letters in transition, and which have not reached their place of destination; letters deposited in a post-office to be forwarded, or handed to a mail-carrier on his route between post-offices come within the provision, if fraudulently detained. As there is no evidence against the defendant, showing the detention of such letters, he con not be convicted on the first count in the the indictment. More difficulty arises in giving a construction to the twentysecond section as applying to the facts proved. The language of the act is, if any person shall steal, or take from any mail or post-office a letter, etc., he shall be punished, etc.

"Now to give a literal construction to this language, the taking from the mail, or a post-office, a letter, is punishable the same as for stealing it. This could not have been the intention of the Legislature. A mere taking may he an innocent act, as if done through mistake, or without any criminal intent, and we find in the latter part of the same section that, if any person shall take any letter or packet not containing any article of value, out of a post-office, a very different punishment is inflicted. It could not have been the intention of the Legislature to provide different penalties for the same act; and consequently, the taking in the part of the section first cited, must either be limited to letters containing some article of value, or to a felonious taking.

"The taking of a letter which contains an article of value, is limited in this section to a taking with or without the consent of the person having custody thereof, and when such letter is embezzled or destroyed, this provision does not embrace the class of offenses provided for in the previous part of the section, which is stealing or taking. The design of the taking is shown by the embezzlement or destruction of the letter. But is a simple taking, without a felonious intent, punishable the same as for stealing? We think when the statute is taken together, and its object and scope are considered, that such a construction can not be sustained. To come within the provision of the statute, the taking must not only be unlawful but felonious; it must be a clandestine taking such as would amount to larceny of personal property. This construction in not only justified by a different punishment being provided in the same section, for taking a letter from a post-office, but by the first taking being placed in the same class and punished as for the stealing or for the embezzlement of a letter.

"The conduct of the defendant was highly reprehensible in refusing to surrender the office, on the demand of the postmaster; and still more so on his obtaining possession of the letters delivered to the postmaster, under the forms of law. This proceeding was an aggravation of his offense, and can only be palliated, in any degree, by the ignorance of those who were engaged in it. It was a prostitution of the forms of law, to attain an illegal

object. But unless the defendant in taking the steps he did take had a criminal intent, he is not guilty under the above section. If he was honestly engaged in what he supposed to be a right, and his whole conduct evinced nothing more than a disposition to hold the office and fairly to discharge its duties, he was not guilty of a felonious taking within the meaning of the statute. It is intent in all instances, which constitutes the crime, and which is ascertained by the acts of the offender. In many instances the act itself being a crime of great enormity, the whole burden of proving an innocent intent is devolved on the party accused. In this case enough appears in the evidence to show that the defendant did not intend to steal the mail, or any letter or packet from the post-office. Of this, however the jury can judge."

Verdict, not guilty.

§ 214. Quarantine Laws. - On an indictment for selling cattle knowing them to be under quarantine, the belief of the defendant that the quarantine had been removed is a defence.1

§ 216 Receiving Goods Obtained by False Pretenses. — In R. v. Rhymes,3 the prisoner was indicted for receiving goods obtained by false pretenses. It was proved by a person named Smith that he had gone to the shop of one Pollard and had obtained a cheese by false pretenses and he said: "I took the cheese to Rhymes who keep a beer house; he asked what I wanted for it; I said I wanted 4d. a pound and he gave me 4s. for it; and I gave him back some of the money for beer." The cheese was worth 13s. 8d. and some of it was found on the roof of the prisoner's house. WILLIAMS, J., left the case to the jury on the question whether the prisoner knew that the cheese had been obtained by false pretenses, and directed the jury that if the prisoner did not know that the cheese was obtained by false pretenses they ought to acquit him. The jury acquitted the prisoner.

4

$217. Selling Adulterated Article of Food- Mistake of Fact.-In Peqple v. Fulle, the defendant was indicted for selling adulterated cream of tartar, and it was held that it being shown that it was the result of an honest mistake of fact on his part, the conviction must be set aside. The complaint charged the defendant with a violation of chapter 407 of the laws of 1881, entitled: "An act to prevent the adulteration of food or drugs," section one of which provides: "No person shall, within this State, manufacture, have, offer for sale, or sell, any article of food or drugs which is adulterated within the meaning of this act. Any person violating this provision shall be deemed guilty of a misdemeanor," etc.

COWING, J. This case comes to the General Sessions on an appeal from a judgment of the Special Sessions. The complaint upon which the defendant was tried and convicted in the court below charged him with selling adulterated cream of tartar for a drug and good for the use of man, in violation of chapter

1 Hess v. State, 45 N. J. (L.) 445 (1883).

2 Bedford v. State, 5 Humph. 552 (1845); Dailey v. State, 4 Tex. 417 (1849).

3 3 C. & K. 327.

4 12 Abb. (N. C.) 196 (1883).

407 of the laws of 1881, entitled: "An act to prevent the adulteration of food or drugs." Upon the trial the prosecution was compelled to and did elect to try the defendant on so much of the charge in the complaint as accused the defendant of selling the article in question as a drug, and upon this charge the defendant was tried and convicted, and sentenced to pay a fine of ten dollars. The defendant's counsel claims that the conviction and judgment entered thereon is erroneous and illegal, and upon his argument before the court relies upon four different grounds for a reversal of the judgment: 1. That a printed volume called the United States Pharmacopæia, was improperly received in evidence. 2. That there is no evidence in the case of any sale of cream of tartar as a drug. 3. That there is no evidence in the case of criminal intent, or of such criminal negligence as in law supplies the place of the criminal intent. 4. That the law, under which the defendant was convicted, is unconstitutional and void. One of the objects of the complaint, as of an indictment, is to inform the defendant of the accusation made against him, that he may know what he is called to defend himself against and be prepared on his trial to meet it; and there can be no question that where the evidence fails to establish the charge in the complaint, the defendant should be acquitted; and it is also true, that any material variance between the material allegations in the complaint and the proof, is fatal to a conviction; nor can a defendant be charged and tried for one offence and be convicted of another and entirely different offense. I consider all these propositions elementary and as so many legal axioms. Did the defendant, as alleged, willfully or negligently, sell adulterated cream of tartar as a drug? If he did, he has violated the law.

As appears from the record, in my judgment, the plain uncontradicted evidence establishes the following facts: 1. That neither the article in question, nor any part of it, was composed of cream of tartar, but was sold under that name. 2. That the defendant at the time of the sale was not a druggist, but was a grocer, and carried on a business pertaining to a grocer. 3. That the defendant did not sell drugs or medicines as such in his grocery business. 4. That the defendant did not manufacture this article in question, but purchased it from one James E. Armstrong, as a pure article, as and for the best in the market, and for which he paid the highest market price. 5. That the defendant tried to obtain the best of cream of tartar, and believed that he had done so. 6. That the defendant sold the cream of tartar is question in the regular course of his business as and for an article of food.

If I am correct in supposing that all the foregoing facts are clearly established by the plain uncontradicted evidence in the case, then it follows, in my judgment, that the conviction of the defendant was clearly wrong for the following reasons: There was a fatal variance between the complaint and the proof, the complaint alleging the defendant sold the article in question as a drug, while the evidence clearly established that he sold it as an article of food. The primary, if not the only object of the law, is the preservation of the public health, and it seeks in one way to do this by prohibiting the sale of adulterated food or drugs for the use of man, but where either food or drugs are sold for other and different purposes and uses, the object of the law is not contravened. Now, Dr. Chandler, in his article in Johnson's Cyclopædia on cream of tartar, gives some of the uses of the same, and among them the doctor says it may be used as a mordant for dyeing. If I understand the learned counsel for the People aright, he claims that if the complaint had charged that the defendant had sold this

cream of tartar as an article of food, which it is, and the proof established that he sold it as and for a mordant for dyeing, that, nevertheless, he could be properly convicted under such a complaint for a violation of the law, for, says the learned counsel for the People, cream of tartar is an article of food, and in this case it was adulterated and sold by the defendant; and that this would be sufficient to sustain a conviction under the law, irrespective of the fact that the complaint charged the sale as and for food for man, while the proof established that he sold it for an entirely different purpose, to wit, as and for a mordant for dyeing. In my judgment, the rules of criminal pleading would not sanction a conviction under such circumstances, but the variance between the allegation and the proof would be fatal to a conviction.

The third ground urged by the defendant's counsel why the judgment should be vacated and set aside, requires a construction of the statute under which the defendant was convicted. So far as the letter of the statute is concerned, it is made a crime for one to sell adulterated food or drugs irrespective of his intent; but it is claimed by the defendant's counsel that a fair, just construction of the act not only requires proof of the sale of an adulterated article, but also that the sale was made with a criminal intent, or under circumstances of such negligence as in law supplies the place of criminal intent; and in this claim, in my judgment, the counsel for the defendant is right. Bishop, in his admirable work on the criminal law, in section 287,1 says: "The doctrine which requires an evil intent lies at the foundation of public justice. There is only one criterion by which the guilt of men is to be tested. It is whether the mind is criminal. 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." But he holds that, under some circumstances, the negligent manner in which an act is done, may be so gross as to supply the place of the required criminal intent. And again, at sections 303 304, the same learned commentator on the criminal law says: "All statutes are to be, and constantly are, interpreted with reference to the unwritten law, by the principles of which they are limited and extended, so as to preserve harmony in our judicial system, and promote justice." Since an evil intent is an indispensable element in every crime, any mistake of fact as, happening to one honestly endeavoring to discharge all legal and social duties, shows the act complained of to have proceeded from no love of evil in the mind, takes from it its indictable quality. A mistake of fact, neither induced nor accompanied by a fault or omission of duty excuses the otherwise criminal act which it prompted." In my judgment, the foregoing legal doctrine enunciated by Bishop in his book on criminal law, is unanswerable, and construing and interpreting the statute in question by the law as laid down by Bishop, it follows that before a person can be convicted of a crime for its violation, it will be necessary to establish either that he was actuated by a criminal intent or was guilty of such negligence in the doing of the act as will supply the place of the criminal intent.

Does the evidence returned in the record in this case, show such criminal Intent or criminal negligence in the doing of the act charged, as to constitute a crime and the defendant, a criminal? There is no positive and direct evidence, showing a willful and intentional violation of the statute, nor does there seem

1 7th ed.