the indictment shows that the defendant is criminally guilty of inflicting the public injury alleged, it is a good accusation of nuisance. The indictment does not charge that the defendant knowingly or intentionally supplied water of unwholesome or poisonous quality; nor that he poisoned the water, or imparted to it its unwholesome quality; nor that the same was done by his agents or servants. The defendant may, therefore, have done all that is alleged, and yet have been guilty of no known or intentional wrong. Can it be that upon such facts, the defendant is criminally guilty.

"The theory of the law is that a criminal intent is a necessary ingredient of every indictable offense. The maxim is, actio non facit reum, nisi mens sit rea. It is not necessary, in all cases, either to aver or prove the guilty intent; and the influence of legal presumptions may, sometimes, be such, that the legal imputation of a guilty intent may be made in contravention of the fact, as for instance, the presumption that every one knows the law. Where the gist of the offense is neglect or carelessness, it would, as a general rule, be a solecism to speak of a guilty knowledge, since the neglect itself usually evidences the guilty mind; and the principle has been carried in some cases to the extent of making one criminally responsible for not using the proper precaution to prevent the injurious acts of his servant. On this principle rest the decisions, where the servant rendered bread unwholesome by the improper use of the ingredients; where the superintendent of a gas company corrupted the water of the river Thames, by conveying into it deleterious gases and fluids; where the engineer of a railroad neglected to ring the bell, or blow the whistle, at the crossing of a street; where the owner of a river caused detriment to neighboring lands by neglecting to sewer it; were a corporation neglected to repair sea walls, in violation of its charter; and where other neglects of like character have been committed. But this principle does not apply here, because the charge against the defendant is really an act committed, and not the omission or negligent performance of an act. Neglecting to supply good and wholesome water, and supplying unwholesome and poisonous water, can not be tortured into a simple charge of neglect. As well might it be said, that he who administers poison, dissolved in water, is simply guilty of neglecting to administer pure water; or that he who sells poisoned bread, is simply guilty of neglecting to sell wholesome bread. Such sophistry would convert every positive act into a neglect. The poisonous quality of the water certainly may have been the result of some negligence or carelessness, in the choice or arrangement of the instruments employed in supplying it; but such is not the charge, and we can not aid the indictment by an inference of it.

"It is a received principle, also, that 'where the statement of the act itself includes a knowledge of the illegality of the act, no averment or knowledge or bad intent is necessary." 12 'The law presumes that every person intends to do that which he does.' Hence, whenever one does an act legally wrong in itself, the law presumes the intent to do that act; the act of itself evidences the illegal intent. The doing of an act in its nature illegal-illegal without any extrinsic qualification of itself evidences the criminal intent. But such is

1 Vermont v. Central Railroad, 28 Vt. 583; Rex v. Medley, 6 C. & P. 292; Henry v. Mayor of Lime, 5 Bing. 91; s. c. 5 B. & Ad. 77; s. c. 8 N. R. 690; 1 Bish. Cr. L. 230, 231; Whart. Am. Cr. L. 10, 11.

2 Whart. Am. Cr. L. 297; Com. v. Stout, 7 B. Mon. 247; Com. v. Elwell, 2 Metc. 190. 3 1 Bish. Cr. L. 248.

MEANING OF

not the character of the act charged here. The furnishing of poisoned water is is not of itself a crime. The criminality of the act depends upon the question, whether it was furnished with a knowledge of the poisonous quality; knowledge is an ingredient of the offense, and must be averred. Accordingly, where one

is indicted for selling an obscene book, or for carrying off a slave, or for an indecent exposure of the person, or for keeping and suffering to go at large a dog of ferocious and furious nature, or for bringing into a public place an animal or person infected with a communicable disease, or for selling unwholesome meat, or for selling a diseased cow, or for uttering a forged note, or for any offense of like character, it is held, that an averment of knowledge is necessary." 2

§ 324. Vagrant-Who is a "Vagrant "Common Prostitute" and "Idle Person " not such Per Se. - In People v. Forbes,3 Catherine Forbes had been committed as a vagrant. On habeas corpus the court examined the case: "The question," said SUTHERLAND, J., "on the face of the commitment arises in this manner: The warrant of commitment, which is under the hand and seal of Mr. Quackenbush, one of the police justices of this city, not only in due form recites the conviction of the prisoner, on competent testimony, of being a vagrant, but proceeds to state and specify the facts, circumstances or conditions which made or constituted the person a vagrant, and on competent proof of which it must be assumed that the committing magistrate determined that the prisoner was a vagrant.

"The words of the commitment are: 'Whereas, Catherine Forbes stands charged, and is, on competent testimony made before me, lawfully convicted of being a vagrant in this, to wit, that she is a common prostitute and idle person, of which conviction a lawful record in due form has been made, and it appearing to me, for the cause aforesaid, that she is a vagrant within the the meaning of the statute, etc., I do decide and determine that she be committed,' etc.

"The commitment then, on its face, presents this question. Did competent and satisfactory testimony that the prisoner was a common prostitute and idle person, authorize her conviction and commitment as a vagrant? There was no such common-law offense or crime as vagrancy and idleness. By certain statutes, all persons coming within a certain description declared and defined by the statutes, are declared to be vagrants, and provision is made for their trial, conviction and imprisonment. We have two such statutes. By the Revised Statutes, all idle persons, who, not having any visible means to sustain themselves, live without employment; all persons wandering about and lodging in taverns, groceries, or beer-houses, outhouses or market places, sheds or barns, or in the open air, and not giving a good account of themselves; all persons wandering abroad and begging, or who go about from door to door, or place themselves in the streets, highways or other public places to beg or receive alms, shall be deemed vagrants. Common prostitutes, as such, are not named in this statute, and although they may be, and are, perhaps, most likely to be, or to become vagrants within the description of the statute, yet it is plain if a

1 Whart. Am. Cr. L. 297; State v. Brown, 2 Speers, 129.

2 2 B. & H. Ld. Cr. Cas. 6, 551; Whart. Am. Cr. L. 2396; Whart. Prec. of Indict. 716, 688, 718, 759, 762, 763, 768; 3 Archb. Cr. Pl. 609–644; 3 Chit. 643; Duncan v. State. 7 Humph. 159;

Brig. William Gray, 1 Paine, 16; Com. v. Stout, 7 B. Mon. 247; Rex v. Watts, 2 Esp. 675.

3 4 Park. 611 (1860).

4 2 Rev. Stats. 879, (5th ed.)

common prostitute is lawfully convicted of being a vagrant under this statute, she must be so convicted not merely on her confession, but on competent testimony that she is a common prostitute or an idle person. This statute does not declare common prostitutes as a class or by name to be vagrants, nor does it declare all idle persons to be vagrants, but only such idle persons as live without employment, and yet have no means to maintain themselves. By an act passed January 23, 1833, which, from its title and provision, would appear to be confined in its operations to the city of New York, all common prostitutes who have no lawful employment whereby to maintain themselves,' are declared vagrants. It is presumed that the prisoner, Catherine Forbes, was arrested and convicted under this act; but by this act common prostitution is neither defined nor declared to be a crime. By this act a certain class or description of common prostitutes are declare to be vagrants. Every word which defines this class, or makes a part of this description, is material and import

ant.

"The magistrate, in acting under the act, had no right to disregard one word of that description. He has no right, I think, to say that a common prostitute is a vagrant within this act, merely because she is also idle or an idle person, without proof of any other fact or circumstance. To be a vagrant within this act, the common prostitute must be without any lawful employment whereby to maintain herself. These words imply, I think, something more than being idle, or an idle condition, and probably something more even than habitual idleness. They imply, I think a want of any lawful business, occupation or means whereby to sustain herself. It is plain that, substantially, the same words as used in the Revised Statutes in describing the kind or class of idle persons declared to be vagrants, means something more than mere idleness, otherwise the statutes would have declared all idle persons to be vagrants. The object of this act is not to punish common prostitutes as a sin or moral evil, or to reform the individual, but to protect the public against the crimes, poverty, distress or public burdens, which experience has shown common prostitution causes or leads to.

"These statutes declaring a certain class or description of persons vagrants, and authorizing their conviction and punishment as such, as well as certain statutes declaring a certain class or description of persons to be disorderly persons, and authorizing their arrest as such, are in fact rather of the nature of public regulations to prevent crime and public charges and burdens, than of the nature of ordinary criminal laws prohibiting and punishing an act or acts as a crime or crimes.

If the condition of a person brings him within the description of either of the statutes declaring what persons shall be esteemed vagrants, he may be convicted and imprisoned, whether such a condition is his misfortune or his fault. The individual liberty must yield to the public necessity or the public good; but nothing but public necessity or the public good can justify these statutes, and the summary conviction without a jury, in derogation of the common law authorized by them. They are constitutional, but should be construed strictly and executed completely in favor of the liberty of the citizen. Their description of persons who shall be deemed vagrants is necessarily vague and uncertain, giving to the magistrate in their execution an almost unchecked opportunity for arbitrary oppression or careless cruelty. The main object or purpose of the statutes should be kept constantly in view, and the magistrate should be careful and see before convicting, that the person

charged with being a vagrant is shown, either by his or her confession, or by competent testimony, to come exactly within the description of one of the statutes.1

"In this case there is not the least ground for supposing that the committing magistrate's proceedings were not in good faith, and with the sole view of conscientiously discharging his duty. But no record of the conviction has been produced, and by an affidavit made in this matter, it appears probable that none has been filed in the clerk's office of the Court of Sessions, as required by the Act of 1833, and the act of April 10, 1835, amending it; and I can therefore only look to the warrant of commitment to see whether the prisoner was lawfully convicted of being a vagrant, or of any crime or offense. For the reasons above stated, I think the commitment on its face does not show that the prisoner was lawfully convicted of being a vagrant, or of any offense or crime. No statute of this State has yet declared common prostitution or idleness to be a crime, and I think, for the reasons above stated, that the determination of the magistrate, that proof that the prisoner was a common prostitute and idle person, authorized her conviction as a vagrant, was erroneous.

"The prisoner, therefore, must be discharged."

$325. Minor Female Supported by Parents not a Vagrant. - A minor, supported by her parents who have an honest occupation, can not be convicted of vagrancy, although she may be a lewd woman.2

§ 326. Vagrancy - Night Walker - Unlawful Intent Necessary to Crime.In Thomas v. State,3 a charge against one Celia Thomas that she was common night walker, and did walk or ramble in the streets and common highways at unseasonable hours of the night without having any lawful business or necessity, against good morals and manners and to the common nuisance of the public was held to charge no crime. "A night walker," said MANNING, J., "simply as such, seems by the old English law to have been held to be a suspected person rather than a criminal, and to be therefore liable to be arrested, and kept in custody until the next morning, and then to be taken before a magistrate for examination, who might require him or her to find sureties for good behavior, if under the circumstances that were thought proper.

"A common night walker was sometimes liable to indictment also. But this was allowed, we presume, upon a further charge that he or she was a night walker with some criminal or unlawful purpose or intentas, for instance, to eaves-drop men's houses, 'to hearken after discourse, and thereupon to frame slanderous and mischievous tales; or to cast men's gates, or the like, into ponds, or commit other outrages or misdemeanors in the night.'

16

"In State v. Downs,' an indictment was sustained which charged that the defendant, a woman, was a common night walker, and from the said tenth day of July to the day of filing the complaint, during divers nights within the time aforesaid, did walk and ramble in the streets and common highways in the said city of Portsmouth, at unseasonable hours of said nights, without having any lawful business, and without any necessity therefor, against good morals

BLACKMAILING-THREAT TO ACCUSE OF CRIME TO COMPEL PAYMENT OF DEBT.

STATE v. HAMMOND.

[80 Ind. 80.]

In the Supreme Court of Indiana, 1881.

A Threat to Accuse Another of crime if made for the purpose of inducing payment of a debt, is not within the statute of blackmailing.

Information of blackmailing. The opinion states the case. The information was quashed below.

D. P. Baldwin, Attorney-General, O. W. Watkins, Prosecuting Attorney, for State.

J. B. Kenner and J. I. Dille, for appellee.

WORDEN, J. Information against the appellee, based upon affidavit, charging that "one Nathan Hammond on the 3d day of November, 1881, at the county of Huntington, and State of Indiana, did then and there unlawfully, feloniously and knowingly send a certain written communication with the name of the said Nathan Hammond subscribed thereto, to one Alfred H. Wintrode and did then and there thereby accuse and threaten him, the said Alfred H. Wintrode, to accuse him, the said Alfred H. Wintrode, of the crime of having obtained money from him, the said Nathan Hammond, through false pretenses, which said written communication was in these words, that is to say:

"Mr. Alfred Wintrode —

"DORA, IND., November 3, 1881.

"SIR: I want you to pay me that money that you got to go to California on in ten days from this date, as I am prepared to prove that you got it under false pretenses, for I can prove by a man that saw you have the money, that you had other money before you left here that you could have used to go on; also the $70 that you got in California. I can prove a pine blank that you had the money or a check for money at the very time you got it, and Mr. Bryant says he had no arrangement to send you any money, and that you got that under false pretense. Now, if you do not make arrangements to settle in ten days I propose to prosecute you to the full extent of the law for obtaining money under false pretenses to defraud me. You can settle it by giving your note with good security, payable in ninety days, with interest from the date of the receipt of the money; if you do not you will find yourself in a very