Opinion of the Court. But here, in the latter paragraph, is the fate of one who buys or receives, or has in his possession any of such removed articles. The buying, receiving or having in possession is made a crime, although the buyer, receiver or possessor has no knowledge or information that said article or articles had been removed from any railway car, or other railway property. Knowledge is not made an ingredient of the offense as defined by this branch of the statute, and knowledge on the part of the accused is not charged in the indictment. Many of the articles named in the act are of common use-articles of common merchandise, such as nuts, bolts, angle bars, spikes, attachments, fastenings. The others are not so common, and, as their names indicate are intended for railroad purposes, and yet their names do not make them contraband, for when worn out, or no longer fit or desired for railroad purposes, they are for sale and become legitimate subject of traffic. The trade in old or second-hand iron, and material of this and other classes, has grown to large proportions, and the dealer-the buyer of such cast-off wares should not be condemned by mere pre-. sumption, if he unwittingly purchases an article named in the statute, where he has no knowledge or information that it had been removed from some railroad car or other railway property. We understand that even journal brasses are not limited in use to railroad cars, but are in use in many manufacturing establishments of the country. Therefore the sight of journal brasses in the hands of a party could not of itself be evidence that they had been removed from railway cars or other railway Opinion of the Court. property. It is not claimed that there are any special marks or impressions on any of these goods to indicate or designate any particular former ownership. Section 6856, Revised Statutes, defines the crime. of larceny, and Section 6858 provides that "Whoever buys, receives or conceals anything of value which has been stolen, taken by robbers, embezzled * ** knowing the same to have been stolen, taken by robbers, embezzled * deemed guilty of larceny *** * * shall be In framing the act under consideration, the legislature omits the word "knowing" and provides nothing in its place, enabling the state to convict without showing that the accused had knowledge of the, character of property he was buying. One may be innocent of a criminal intent in buying articles named in the statute, and may have dealt with them in the usual course of trade, and yet be convicted if it turn out that they had been at some time by some person removed from a locomotive, motor, car, or other designated railway property. As early as Birney v. The State, 8 Ohio Rep., 230, guilty knowledge was held to be a necessary ingredient of crime. It is true that that case arose from the violation of a statute prohibiting the harboring or secreting a slave. There were several counts in the indictment, which we need not specialize further than to say that the statute forming the basis of prosecution provided that "if any person shall harbor secrete any black or mulatto person, the property of another, the person so offending shall, on conviction thereof be fined in any Opinion of the Court. sum," etc. It is observed that scienter is not made part of the statutory description, and that fact was important in determining the case. On page 238, Wood, J., speaking for the court, says: "There is no averment that the plaintiff in error knew the facts alleged, that Matilda was a slave, and the property of L. Larkin, or of any other person; and such is not the legal inference in a state whose constitution declares that all are born free and equal ***. On the contrary, the presumption is in favor of freedom. The scienter, or knowledge of the plaintiff in error, of this material fact, was an ingredient necessary to constitute his guilt. This knowledge should have been averred in the indictment, and proved on the trial, for without such knowledge, the act, charged as a crime was innocent in its character. We know of no case where positive action is held criminal, unless the intention accompanies the act either expressly or necessarily inferred from the act itself. It is true that the statute upon which the indictment is founded omits the scienter, and the indictment avers all the facts enumerated in the statute. But this is not sufficient; it can not be assumed that an act, which, independent of positive enactment, involves no moral wrong, nay an act that in many cases would be highly praiseworthy, should be made grievously criminal when performed in total unconsciousness of the facts that infect it with crime ***" We think this early pronouncement by this court is yet sound law and states a rule pertinent to the present controversy, and is as applicable to the business habits and rights of our citizens to-day Opinion of the Court. as to the right of a citizen under the fugitive slave statute. The case has been approvingly noticed in Miller et al. v. The State, 3 Ohio St., 476, under our present constitution, and the principle distinctly reannounced in Farrell v. The State, 32 Ohio St., 456. The same legal light can be traced through many later cases decided by this court, which we need not cite. If it is said that the buyer should, before buying or receiving, make inquiry as to where or how the articles were obtained, we might be at a loss to tell of whom and where the inquiry should be made. It is not probable that the thief or party who removed the articles would inform the buyer that the property was stolen, but on the contrary would make such statement or give such account as would allay suspicion and indicate that the property had been honestly acquired. Had the buyer gone through the course of this precaution, and acted on the information thus given as to the history of the articles offered for sale, and believing the statement of the seller, purchased them, it would be no defense under this branch of the statute. Want of knowledge of the truth, however honestly and actively sought, furnishes no excuse, and the purchaser in good faith stands no better before this law than the thief himself. Why this drastic legislation? And as to a certain class of property? Counsel for the state answer in the language of the circuit court, where it is said, "the object of this statute is to break up any market for such commodity so removed from cars, and I might say here that is one of the strong points that no doubt Opinion of the Court. influenced the supreme court and the circuit court in upholding the same question as made under the pure food laws-that is the question of knowledge. If there was no market value for any such commodity, then it would reduce to a minimum the temptation and desire on the part of any parties to unlawfully remove any such material from railroad cars." But such statement does not satisfy the question we have here. Doubtless it is true that these species of railroad property are the frequent subjects of unlawful depredations, and that the thefts and removals have become a crying evil. It may be also that similar depredations are committed in the homes and other buildings owned by our citizens, from which, night and day, prowlers remove and sell valuable gas and water pipes and other valuable plumbing. When such articles are once removed, the thief will, if he can, find a market for the illegal wares. To break up the market for gas and water pipe, should the legislature make an innocent buyer a criminal? What disposition do railway companies themselves make of their wornout journal brasses, bolts, nuts, etc., when no longer safe and fit for use? Do they bury them out of sight? In the exercise of economy, they may seek and help create a market for such wares, and to destroy all market for such articles as are included in the list, is an undertaking that may tax the ability of even the legislature. The plaintiff in error may be rather a free buyer of second-hand iron, and what is called junk, and |