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by a probate judge,79 or justice of the peace.80 or justice of the peace.80 And it has been held that a public officer is not excused for violating the law because he acted upon the advice of the attorney general of the state.81 Generally advice of counsel cannot exonerate a person of the charge of wilfulness in the commission of an offense. 82 But an exception to the general rule has been recognized in cases of alleged perjury or false swearing in which the truth or falsity of the matter sworn to is a mixed question of law and fact, and the accused has acted on the advice of counsel that, as a matter of law, a certain statement may be made which will be the truth, since under such circumstances it cannot be said that his oath is wilfully and corruptly false.83 It has also been held that in a prosecution for wilfully voting

come within the provisions of the licensing statute is no defense to a prosecution for carrying on business without a license. State v. Foster, 22 R. I. 163, 46 Atl. 833, 50 L. R. A. 339.

That one is wrongly advised by a commissioner of fisheries that he has a legal right to fish with purse or drag seines at a certain place is no defense to a prosecution for so fishing. State v. Huff, 89 Me. 521, 36 Atl. 1000.

It is no defense to a prosecution for opening a saloon on election day that an officer informed the accused that it would not be a violation of the law to open after the election had closed. Jones v. State, 32 Tex. Cr. 533, 25 S. W. 124.

79 On a prosecution of a negro for marrying a white woman, it is no defense that before the marriage took place the probate judge advised the defendant that it would be lawful. Hoover v. State, 59 Ala. 57.

80 On a prosecution for bigamy it was held that the defendant could not show that a justice of the peace who witnessed an agreement between the defendant and his wife told him that it was in legal effect a divorce. People v. Weed, 29 Hun. (N. Y.) 628.

On a prosecution for adultery for having married and cohabited

as

husband and wife while the female defendant was lawfully married to another man, it is no defense that the justice of the peace who performed the ceremony informed the defendants that they had a right to marry because the lawful husband of the female defendant had remarried. State v. Goodenow, 65 Me. 30.

81 State v. District Court, Silver Bow County, 44 Mont. 318, 119 Pac. 1103, Ann. Cas. 1913 B 396.

82 The fact that a person has been advised by counsel that a road is not a legal one will not exonerate him of the charge of wilfulness in obstructing it. Ward v. State, 42 Tex. Cr. 435, 60 S. W. 757; Crouch v. State, 39 Tex. Cr. 145, 45 S. W. 578.

83 Williamson v. United States, 207 U. S. 425, 52 L. Ed. 278, 28 Sup. Ct. 163, conspiracy to suborn perjury by applicant under timber and stone act; United States v. Stanley, 6 McLean (U. S.) 409, Fed. Cas. No. 16, 376, affidavit to establish a pre-emption right; Levinson V. United States, 263 Fed. 257, knowingly and fraudulently presenting under oath a false claim against the estate of a bankrupt; United States v. Conner, 3 McLean (U. S.) 573, Fed. Cas. No. 14, 847, omitting items from inventory of property in bankruptcy proceed

at an election with knowledge that one is not a qualified voter, the defendant may show that he acted on the advice of counsel for the purpose of negativing knowledge on his part that he was violating the law, although such a showing would not be conclusive; 84 and that in a prosecution for embezzlement the accused may show that he acted under advice of counsel for the purpose of showing an absence of criminal intent.85

To be a defense in any case, the advice must have been with respect to a matter of law,86 and the accused must have fully and in good faith disclosed all of the facts to the attorney giving it.87 And the advice must also have been given before the commission of the offense.88

IV. PENDENCY OF OR RECOVERY IN A CIVIL ACTION

§ 180. In general. Where the same act is both a tort and a crime,89 neither the pendency of a civil action brought by the injured party to recover damages therefor, nor the recovery of a judgment in such an action will prevent the criminal prosecution of the offender.90 The

ings. State v. McKinney, 42 Iowa 205, as to the existence of a partnership.

Evidence that the accused acted on advice of counsel is competent to show the absence of a corrupt motive, and that the accused might have been led by the advice into a mistake. Hood v. State, 44 Ala. 81.

One cannot be convicted of knowingly making a false affidavit that land is unimproved where he was advised that it was unimproved within the meaning of the statute requiring the affidavit to be made. Com. v. Clark, 157 Pa. St. 257, 27 Atl. 723.

Instances of this kind usually occur with respect to affidavits, the truth of which depends upon some question of law. Barnett v. State, 89 Ala. 165, 7 So. 414.

84 Com. V. Bradford, 9 Metc. (Mass.) 268.

85 Lindgren v. United States, 260 Fed. 772.

86 Barnett v. State, 89 Ala. 165, 7 So. 414.

87 Levinson v. United States, 263 Fed. 257; Barnett v. State, 89 Ala. 165, 7 So. 414. And see Com. v. Bradford, 9 Metc. (Mass.) 268.

88 In a prosecution for embezzlement, advice of counsel that the accused could not be prosecuted for retaining the money was held not to be admissible for the purpose of negativing fraudulent intent, where it was not given until after the conversion was complete, and after the defendant had resorted to deception to conceal the fact, and had confessed his inability to pay over the money. State v. Patterson, 66 Kan. 447, 71 Pac. 860. 89 See § 3, supra.

90 Com. v. Hurd, 177 Pa. St. 481, 35 Atl. 682; Foster v. Com., 8 Watts & S. (Pa.) 77; State v. Frost, 1 Brev. (S. C.) 385, and other cases cited in the following notes.

In State v. Stein, 1 Rich. (S.

rule has been applied in prosecutions for assault,91 libel,92 larceny.93 deprivation of civil rights,94 and for a misdemeanor in office.95 And the forfeiture in a civil proceeding of property used to defraud the government will not bar a criminal prosecution of the owner for the crime committed by him in so using it.96 Nor is the fact that a person has been punished for contempt for violating an injunction

C.) 189, which was an indictment for harboring a runaway slave, it was held that the object of the statute under which the prosecution was instituted was that the offender should not be prosecuted both civilly and criminally for the same matter, which might have been done before the passage of the act. It was further held that under the act civil and criminal proceedings might be instituted against the defendant at the same time, but that the prosecutor, at the time of the trial, might be put to his election upon which he would proceed, or, if this was not done, the defendant could plead the trial of one case in bar of the other.

91 Neither the pendency of an action for damages, Com. v. Elliott, 2 Mass. 372; McNamara v. St. Louis Transit Co., 182 Mo. 676, 81 S. W. 880, 66 L. R. A. 486; People v. Judges of General Sessions of Peace, 13 Johns. (N. Y.) 85; State v. Frost, 1 Brev. (S. C.) 385, overruling State v. Blyth, 1 Bay (S. C.) 166; nor the recovery of a judgment for damages in such an action will prevent prosecution. Brown v. Evans, 17 Fed. 912; McNamara v. St. Louis Transit Co., 182 Mo. 676, 81 S. W. 880, 66 L. R. A. 486; Com. v. Somerville, 1 Va. Cas. 164, 5 Am. Dec. 514; Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582.

The fact that the defendant in a criminal prosecution for assault and battery has previously recovered a judgment for damages against the complaining witness in a civil action for assault based on the same transac

tion, and that such judgment has been paid, is not a bar to the prosecution of the defendant, since both may have been guilty of assault and battery and liable to criminal prosecution. People v. Kenyon, 93 Mich. 19, 52 N. W. 1033.

92 Foster v. Com., 8 Watts & S. (Pa.) 77.

93 The prosecution is not barred by a judgment against the alleged owner in a replevin suit to recover the same property. Holmes v. State, 144 Ark. 617, 224 S. W. 394. And see § 372, infra.

94 United States v. Buntin, 10 Fed. 730.

95 An indictment for a misdemeanor in office, in which a public official is charged with being concerned in public contracts, will not be quashed, nor will the trial of the defendant thereunder be postponed, because of the pendency of an appeal by the defendant in a civil court from a surcharge for the amount alleged in the indictment to have been appropri ated by him. Com. v. Hurd, 177 Pa. St. 481, 35 Atl. 682.

96 The forfeiture of a distillery upon a libel of information filed against it by the federal government based on certain frauds in its operation is no bar to the prosecution of the owner of the distillery for the same frauds. Wood v. United States, 204 Fed. 55. See also Origet v. United States, 125 U. S. 240, 31 L. Ed. 743, 8 Sup. Ct. 846; Coffey v. United States, 116 U. S. 436, 29 L. .Ed. 684, 6 Sup. Ct. 437.

by doing an act which is also a crime a defense to a subsequent criminal prosecution based on the same act.97 A preliminary injunction issued in a suit to restrain the enforcement of a statute containing penal provisions, on the ground that such statute is invalid, does not exempt the plaintiff in such suit from the operation of the law or suspend it as to him, and is no defense to a criminal prosecution for acts done by him in violation of the statute while such injunction was in force, where the statute is subsequently declared valid and the injunction dissolved,98 or where the suit in which the injunction is granted is subsequently dismissed and the injunction dissolved for want of jurisdiction of the subject-matter.99

As a rule, the pendency of the civil action is not even ground for postponing the trial on the criminal charge. But it has been held that the trial of an indictment for fraud will be continued until after the trial of a pending civil action for the same cause, and that the trial of an indictment for forging a will may, in the discretion of the court, be postponed until after the trial of a pending civil proceeding instituted for the purpose of determining whether the instrument claimed to have been forged was executed by the deceased. And

97 In re Debs, 158 U. S. 564, 39 L. Ed. 1092, 15 Sup. Ct. 900.

98 Ray v. City of Belton, Tex. Civ. App. -; 162 S. W. 1015. State v. Wadhams Oil Co., 149 Wis. 58, 134 N. W. 1121, 40 L. R. A. (N. S.) 607. 99 The order granting the injunction is void under such circumstances, and a void order procured at the instance of the defendant will not justify him in violating the statute or shield him from the penalty for so doing. State v. Keller, 8 Idaho 699, 70 Pac. 1051. 1 Misdemeanor in office. Com. v. Hurd, 177 Pa. St. 481, 35 Atl. 682.

Assault. People v. Judges of General Sessions of Peace, 13 Johns. (N. Y.) 85. In the above case it was said that the pendency of the civil action might be ground for suspending the judgment in case the defendant was found guilty.

In Com. v. Elliott, 2 Mass. 372, it was held that the indictment would not be continued where the assaulted

party was not to be used as a witness by the state.

The defendant is not entitled, as a matter of right, to the postponement of the trial of an indictment for obstructing a highway until the determination of a pending suit instituted by him to enjoin the removal of the alleged obstruction. Taylor v. Com., 29 Gratt. (Va.) 780.

It is no ground for postponing the trial of a prosecution for conspiracy to falsely institute a civil action that the action alleged to have been instituted pursuant to the conspiracy is still pending, where the judgment therein would not be evidence in the criminal case and would have no weight in the determination of the criminal charge. People v. Petersen, 60 N. Y. App. Div. 118, 69 N. Y. Supp. 941.

2 Com. v. Bliss, 1 Mass. 32.

8 The granting of a continuance is discretionary with the court, and is

generally indictments for perjury growing out of affidavits made on testimony given in the course of civil proceedings will not be tried until said civil proceedings have been disposed of.4

V. WRONG OF PERSON INJURED

§ 181. In general. Since the state punishes for crime because of the wrong and injury to the public, and not to redress the private wrong to the individual, it is no defense, as a general rule, that the person against whom a crime has been committed was himself guilty of a crime or a private wrong in the same transaction.5 So it is no defense to a prosecution for larceny, or embezzlement, or obtaining money or property by false pretenses, that the person from whom the money or property was taken or obtained had himself stolen it, or otherwise obtained it wrongfully or unlawfully, or was using it or parted with it for an unlawful purpose. Nor can a prosecution for

not compulsory.

Com. v. Dickerson,

7 Wkly. Notes Cas. (Pa.) 433.

4 Com. v. Hurd, 177 Pa. St. 481, 35 Atl. 682.

But this rule is one of convenience and propriety, addressed to the sound discretion of the court, and the attention of the court should be called to the matter before entering upon the trial, and an application made to postpone on that ground." Otherwise the objection will be waived, since the fact that the civil proceedings are still pending does not deprive the court of jurisdiction. People v. Hayes, 140 N. Y. 484, 35 N. E. 951, 23 L. R. A. 830, 37 Am. St. Rep. 572, aff'g 70, 111, 24 N. Y. Supp. 194.

5 Arkansas. Lawson v. State, 120 Ark. 337, 179 S. W. 818.

Colorado. In re Cummins, 16 Colo. 451, 27 Pac. 887, 25 Am. St. Rep. 291.

District of Columbia, Nation v. District of Columbia, 34 App. Cas. 453. Illinois. Gilmore v. People, 87 Ill. App. 128.

Kansas. State v. Stark, 63 Kan. 529, 66 Pac. 243, 54 L. R. A. 910, 88 Am. St. Rep. 251.

8

Massachusetts. Cơm. v. 0’Brien, 172 Mass. 248, 52 N. E. 77.

Michigan. People v. Henssler, 48 Mich. 49, 11 N. W. 804.

Ohio. Horton v. State, 85 Ohio St. 13, 96 N. E. 797, 39 L. R. A. (N. S.) 423, Ann. Cas. 1913 B 90.

South Carolina. State v. Posey, 88 S. C. 313, 70 S. E. 612.

Tennessee. Lovell v. State, 48 Tex. Cr. 85, 86 S. W. 758, 13 Ann. Cas. 561.

"If the other party has also subjected himself to a prosecution for a like offense, he also may be punished. This would be much better than that both should escape punishment, because each deserved it equally." Com. v. Morrill, 8 Cush. (Mass.) 571. Quoted with approval in Lovell v. State, 48 Tex. Cr. 85, 86 S. W. 758, 13 Ann. Cas. 561. And see to the same effect, In re Cummins, 16 Colo. 451, 27 Pac. 887, 13 L. R. A. 752, 25 Am. St. Rep. 291.

6 See § 749, infra.

7 See § 520, infra.

8 See § 1262 et seq., infra.

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