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meist section for the detentim of letters, on the first count in

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object. But unless the defendant in taking the steps he did take haf a criminai intent, he is not guilty under the above section. If he was honesty a gaged in what he supposed to be a right, and his whole conduct evinced 1ing more than a disposition to hold the office and fairly to disc 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 via e ascertained by the acts of the offender. In many instances the act its being a crime of great enormity, the whole burden of proving an innocent vice devolved on the party accused. In this case enough appears in the eiena to show that the defendant did not intend to steal the mail, or any lewer te 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 und been removed is a defence.1

§ 215. Receiving Stolen Goods. So receiving stolen goods by mistake is not a crime.2

§ 216 Receiving Goods Obtained by False Pretenses. — In B. v. Ekynes the prisoner was indicted for receiving goods obtained by false pretenses was proved by a person named Smith that he had gone to the shop of one Por lard and had obtained a cheese by false pretenses and he said: "Itook the cheese to Rhymes who keep a beer house; he asked what I wanted for it; I 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 ou the question whether the prisoner knew that the cheese had been obta wed by false pretenses, and directed the jury that if the prisoner did not know that te cheese was obtained by false pretenses they ought to acquit him. The jury acquitted the prisoner.

§ 217. Selling Adulterated Article of Food - Mistake of Fact-It Pur ple v. Fulle, the defendant was indicted for selling adulterated cream of tartan and it was held that it being shown that it was the result of an honest mezze 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: #6 act to prevent the adulteration of food or drugs," section one of waist prom vides: "No person shall, within this State, manufacture, have, offer for meas 439 sell, any article of food or drugs which is adulterated within the measly due act. Any person violating this provision shall be deemed gully di a m'va meanor," etc.

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COWING, J. This case comes to the General Sessions on an apps from e judgment of the Special Sessions. The complaint upon whist the defendant was tried and convicted in the court below charged him with sing wis wreind cream of tartar for a drug and good for the use of man, in violation of age

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.

412 Abb. (N. C., 199 (2

to me to be any evidence going to show that the defendant was criminally negligent in selling the cream of tartar. On the contrary, on reading the evidence I can come to no other conclusion but that the defendant was desirous of observing the law, and that in all that he did he acted the part of a careful and prudent man. He purchased the cream of tartar from a dealer in open market. Before doing so, he inquired for the best article, and was told by the dealer, that that purchased was the best. He paid the highest market price for the same, and believed that he was purchasing a pure article and the best. He bought it for a pure article and sold it for the same, believing it to be pure. I think the evidence comes very far short of making the defendant a criminal. At most the evidence shows, in my opinion, that the sale of the cream of tartar, under all the circumstances, was an honest mistake of fact, without fault on the part of the defendant, which in law excused him. For the foregoing reasons I think the judgment of the Special Sessions was wrong, and should be vacated and set aside, and the defendant granted a new trial; and it is so ordered.

§ 218. Selling Mortgaged Property. So selling property covered by a lien of which the vendor is ignorant is no crime.1

§ 219. Solemnizing Marriage with Minor. - The Michigan statute 2 makes it a misdemeanor for one to solemnize a marriage, knowing that he is not lawfully authorized to do so, or that there is a legal impediment thereto. In Bonker v. People, a justice of the peace being on trial for a violation of this statute the court charged that if the justice "had good reason to believe," or "if in the exercise of a reasonable discretion he had reason to believe" that the girl was under sixteen years of age, he was guilty. This was held erroneous. The court said: "No doubt, where guilty knowledge is an ingredient in the offense, the knowledge must be found; but actual, positive knowledge is not usually required. In many cases, to require this would be to nullify the penal laws. The case of knowingly passing counterfeit money is an illustration; very often the guilty party has no actual knowledge of the spurious character of the paper, but he is put upon his guard by circumstances which, with felonious intent, he disregards. Another illustration is the case of receiving stolen goods, knowing them to be stolen; the guilt is made out by circumstances which fall short of bringing home to the defendant actual knowledge. He buys, perhaps, of a notorious thief, under circumstances of secrecy, and at a nominal price, and the jury rightfully holds that these circumstances apprise him that a felony must have been committed. If, by the statute now under construction, actuaj personal knowledge is required, the statute may as well be repealed, for it can seldom be established, even in the grossest cases. How many justices are likely to know the exact age of all the girls in their township approaching the age of consent? or even of all those in their immediate neighborhood, except as they rely upon reputation or family report? Or, in how many can they testify, of their own knowledge, that a young man and a young woman living as inmates of the same family, and recognized as brother and sister, do in fact bear that relation to each other? or, that one who comes to be married has not a

1 State v. Johnson, 20 S. C. 387 (1883).

* Comp. L., sec. 4729.

3 31 Mich. 4.

4 Andrews v. People, 60 Ill. 354; Schried

ley v. State, 23 Ohio St. 130.

wife living from whom he is not divorced? Indeed, in the great majority of cases, one must obtain his knowledge as to the existence of legal impediments from common report, from the statements of third parties, from any sources, in fact, upon which individuals would rely in investigating for their own protection into such facts, and he would justly be deemed inexcusable if he should persistently shut his eyes to such facts as were apparent to everbody else.

"We think there is no doubt that in this case the jury would have been warranted in finding, on the facts which appear, that the defendant had knowledge of the impediment, had the instructions been such as the defendant insists they should be. One fact not hitherto stated would have been regarded as very significant, namely, that the defendant, although required by statute to examine one of the parties on oath, neglected to do so.1 This, in view of the extreme youth of the girl, was a very significant fact, and looks like a careful avoidance of the proper means of information. Had he taken the proper evidence under oath and been deceived, perhaps he would have been justified, even though he had had reason to believe the age of consent had not been reached; but where he neglects the testimony which he is required to take, and pretends to rely upon the less satisfactory oral statement, which he is not required to take, the neglect may well be imputed to illegal intent. But the question whether, on the evidence, the jury ought to have found that the defendant had guilty knowledge is not the same as the question presented here. We are not agreed that the charge of the circuit judge can be supported, though some of our number are inclined to think it may be. The better course, unquestionably, would have been for the circuit judge to have submitted all the facts to the jury, and to have allowed them to draw their own conclusions regarding the knowledge of the defendant that he was proceeding unlawfully. It is to be presumed that the jury would have dealt intelligently with the facts, and not permitted a reckless official to have set at naught, with impunity, the provisions of a statute which has for its object the prevention of unfit, immoral and scandalous marriages. The circuit court will be advised to grant a new trial."

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§ 221. Trespass - Entering Land. - Entering land by mistake is not a trespass.3

In State v. Arnold, it was held that in an indictment for cutting timber on the land of another, the charge that the act was done unlawfully does not obviate the necessity of charging that it was done knowingly. WALKER, J.: "The attorney-general argues in this case that the word 'unlawfully' may take the place in the indictment of the statutory word 'knowingly' as used in article 2351. To use the word unlawfully is to assume a conclusion of law which can only be done by the act having been done knowingly. The pleader should state the facts from which the court can devise legal conclusions. It may be very true that the act of cutting timber on another's land to be unlawful must be knowingly done, but we think, nevertheless, a party would be liable in damages for cutting timber upon the land of another, although at the time he cut the

1 Comp. L., sec. 4726.

2 Meyers v. State, 1 Conn. 503 (1816).

3 State v. Hanks, 66 N. C. 613 (1872); State

v. Hause, 71 N. C. 518 (1874).

4 39 Tex. 75 (1873).

timber he might believe the land to be his own. The Legislature has, therefore, when the party is to be held guilty of a misdemeanor, required that the act should be perpetrated knowingly, and if knowledge be an ingredient of the offense, which it certainly is, it should be averred in the indictment. We conclude that unlawfully is not the equivalent of knowingly in an indictment framed under article 2351."

In Lackey v. State,1 the defendant was indicted and convicted of trespass. It was proved by the state that defendant carried away the timber described in the information, from the land described in the same document; that he was warned not to do so, as M. R. Birdwell claimed the land and timber under a purchase from B. B. Adams in 1881; that the defendant replied to such warning that he had purchased the timber from Frank Dalton and would carry it away, which he did. Frank Dalton testified, for the defence, that he claimed the land under a transfer from B. B. Adams, executed in 1881; that he cut the timber described in the information, and sold it to the defendant, and authorized him to carry it away. WHITE, P. J. "It appears from the evidence that the ownership or title to the land from which the timber was alleged to have been cut and carried away by defendant was in dispute between Birdwell and Dalton, both parties claiming under transfers executed to them about the same time by Adams, the original claimant. Dalton testified that he himself cut the timber in controversy, and sold it to defendant, who paid him for it. Amongst other things the court charged the jury as follows: If the jury believe from the evidence that defendant had notice of the dispute as to the title of the land, this would put him on his guard, and he would then be bound by the law to have the consent of the true owner; otherwise, you will find defendant guilty and assess a fine,' etc. This was excepted to, and a special instruction was asked and refused, which was couched in these words: 'The defendant asks the court to charge the jury that, if they believe from the evidence, that defendant purchased the timber mentioned in the information herein, believing it to be the property of W. F. Dalton, the party from whom he purchased, that he purchased said timber in good faith; then and in that event he would not be guilty of knowingly carrying away timber from land not his own, in contemplation of law.'

"This special instruction embraced the law on the vital point in the case, and announced it correctly, whilst the charge given, and which we have quoted, was erroneous and should not have been given. In several other particulars the charge given is obnoxious to criticism, but it is unnecessary to discuss them, as the objectionable features will not likely occur again.

"There is a matter to which we call the attention of the clerk. In preparing the transcript he has omitted to send up as part of it the original affidavit or complaint upon which the information was based. This important paper should always accompany the information. For errors in the charge of the court as indicated, the judgment is reversed and the cause remanded.

-

"Reversed and remanded."

§ 222. Trespass — Levying on Wrong Property.—A sheriff levying upon the property of a son, believing it to be the property of the father and having an execution against the latter is not guilty of trespass."

1 14 Tex. App. 165 (1883).

2 State v. Tatom, 69 N. C. 35 (1873). And see State v. Ferguson, 67 N. C. 219 (1872).

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