§ 2057. The statute of limitations cannot be taken advantage of by demurrer to an indictment.

Argument to show that a demurrer to an indictment admits every matter of fact which is well pleaded is unnecessary, as the proposition is not denied; and inasmuch as the offense is well alleged in each of the counts to which the demurrer applies, it is difficult to see upon what ground it can be contended that the defendant may, by demurrer, set up the statute of limitations as a defense, it appearing beyond all doubt that the act defining the offense contains neither an exception nor a proviso of any kind. Tested by the principles herein suggested it is quite clear that such a theory cannot be supported, but it must be admitted that decided cases are referred to which not only countenance that view, but adjudge it to be correct. Some of the cases, however, admit that the judgment cannot be arrested for such a defect, if it appears that the statute of limitations contains any exception, as the presumption in that state of the case would be that evidence was introduced at the trial which brought the defendant within some one of the exceptions. State v. Hobbs, 39 Me., 212; People v. Van Santvoord, 9 Cow., 660; State v. Rust, S Blackf., 195.

Obviously the supposed error, if it be one, could not be corrected by a motion in arrest, for the reason suggested in those cases, and it is quite as difficult to understand the reason of the rule which affirms that a demurrer will work any such result, as it cannot be admitted that a demurrer is a proper pleading where it will have the effect to shut out evidence properly admissible under the general issue to rebut the presumption of the supposed defect it was filed to correct. Suppose that is so, then it clearly follows that the demurrer ought not to be sustained in this case, as the statute of limitations in question contains an exception, and it may be that the prosecutor, if the defendant is put to trial under the general issue, will be able to introduce evidence to show that he, the defendant, is within that exception. Although the reasons given for that conclusion appear to be persuasive and convincing, still it is true that there are decided cases which support the opposite rule, and which affirm that the prosecutor must so frame the indictment as to bring the offense within the period specified in the statute of limitations, or the defendant may demur, move in arrest of judgment, or bring error. State v. Bryan, 19 La. Ann., 435; United States v. Watkins, 3 Cranch, C. C., 550; People v. Miller, 12 Cal., 294; McLane v. State, 4 Ga., 340.

Sometimes it is argued that the case of Commonwealth v. Ruffner, 28 Penn. St., 260, and Hatwood v. State, 18 Ind., 492, adopt the same rule, but it is clear that neither of those cases supports any such proposition. Instead of that they both decide that it is not necessary to plead the statute of limitations in criminal cases; that the defendant may give it in evidence under the general issue, which undoubtedly is correct, as it affords the prosecutor an opportunity, where the statute contains exceptions, to introduce rebutting evidence and bring the defendant within one of the exceptions. Accused persons may avail themselves of the statute of limitations by special plea or by evidence under the general issue, but courts of justice, if the statute contains exceptions, will not quash an indictment because it appears upon its face that it was not found within the period prescribed in the limitation, as such a proceeding would deprive the prosecutor of the right to reply or give evidence, as the case may be, that the defendant fled from justice and was within the exception. United States v. White, 5 Cranch, C. C., 60; State v. Howard, 15 Rich. (S. C.), 282.

Nor is it admitted that any different rule would apply in the case even if the statute of limitations did not contain any exception, as time is not of the essence of the offense; and also for the reason that the effect of the demurrer, if sustained, would be to preclude the prosecutor from giving evidence, as he would have a right to do, under the general issue, to show that the offense was committed within two years next before the indictment was found and filed.

Examples are given by commentators which serve to illustrate the general doctrine even better than some judicial opinions. No mariner, it was enacted, who was serving on board any privateer employed in certain British colonies, should be liable to be impressed unless it appeared that he had previously deserted from an English ship of war; and the act provided that any officer who should impress such a mariner should be liable to a penalty of $50. Judgment was arrested in an action brought for the penalty there imposed, because the declaration did not allege that the mariner had not previously deserted, as that circumstance entered into the very description of the offense, and constituted a part of the transaction made penal by the statute. Spieres v. Parker, 1 Term R., 141.

Labor and traveling on the Lord's day, except from necessity and charity, are forbidden in some states by statute, which also furnishes an example where the exception is a constituent part of the offense, as it is not labor and traveling, merely, which are prohibited, but unnecessary labor and traveling, or labor and traveling not required for charity. State v. Barker, 18 Vt., 195. Innkeepers are also prohibited by statute, in some jurisdictions, to entertain on the Lord's day persons not lodgers in the inn, if resident in the town where the inn is kept, and an indictment founded on that statute was held to be bad, because it did not aver that the persons entertained were not lodgers, as it is clear that that circumstance was an ingredient of the offense. Commonwealth v. Tuck, 20 Pick., 361.

So an English statute made it penal for any person not employed in the public mint to make or mend any instrument used for coining, and it was held that the indictment must negative the want of authority, as that clause was a part of the description of the offense. 1 East's Pl. Cr., 167; 2 Lead. Cr. Cas., 24 2d ed., 9.

Equally instructive examples are also given by commentators, to show that nothing of the kind is required where the exception is not incorporated with the clause defining the offense, nor connected with it in any manner by words. of reference, as in such cases it is not a constituent part of the offense, but is a matter of defense and must be pleaded or given in evidence by the accused. 1 Bish. Cr. Proc., 2d ed., § 405, 632, 635, 639; Steel v. Smith, 1 Barn. & Ald., 99; State v. Abbey, 29 Vt., 66; 1 Am. Cr. L., 6th ed., §§ 378, 379; 1 Wat. Archb. Cr. Pr., ed. 1860, 287; Rex v. Pearce, Russ. & Ry. Cr. Cas., 174; Rex e. Robinson, id., 321; Rex v. Baxter, 2 East's Pl. Cr., 781; S. C., 2 Leach's C. C., 4th ed., 578; 1 Gabbett's Cr. L., 283. Sufficient has already been remarked to show what answer must be given to the first and second questions, which are both contained in the first interrogatory in the record, and it is only necessary to add in respect to the third, which is numbered second in the transcript, that the only statute of limitations applicable to the offense alleged in the indictment is the one enacted in the thirty-second section of the original crimes act, which cannot, however, avail the defendant under the demurrer filed to the indictment.

§ 2058. Answers certified to the circuit court.

Let the following answers be certified to the circuit court:

(1) That it is not competent for the defendant to take exception by demurrer to the first five counts of the indictment, for the cause assigned.

(2) That the said five counts, and each of them, do allege and charge upon their face a crime or offense against the defendant, for which he is liable in law to be put upon trial, convicted and punished.

(3) That the thirty-second section of the crimes act enacts the only statute of limitation applicable to the offense charged against the defendant, but that he cannot avail himself of it under the demurrer filed to the indictment.

UNITED STATES v. THREE RAILROAD CARS.*

(District Court, Northern District of New York: 1 Abbott, 196-211. 1838.)

Opinion by HALL, J.

STATEMENT OF FACTS.-The information in this case is founded upon section 5 of the act of June 27, 1864. Section 1 of this act provides for the unloading and inspection, at the first port of entry or custom-house of the United States, of all merchandise and other articles imported into this country from any contiguous foreign country, except as thereinafter provided. Section 2 provides that in order to avoid the inspection at the first port of arrival, as required by section 1, cars, etc., containing such merchandise or other articles may be sealed or closed, under regulations authorized by such act to be prescribed by the secretary of the treasury; "whereupon the same may proceed to their port of destination without further inspection." It also provides that such cars, etc.. shall proceed, without unnecessary delay, to their destination as named in the manifest of their contents, and be there inspected as provided in section 1. Section 3 authorizes the secretary to make regulations for the sealing and closing of cars, etc., and sections 4 and 5 are in the following words:

"Sec. 4. And be it further enacted, That if the owners, master or person in charge of any vessel, car or other vehicle, sealed as aforesaid, shall not proceed to the port or place of destination thereof named in the manifest of its cargo, freight or contents, and deliver such vessel, car, or vehicle, to the proper officer of the customs, or shall dispose of the same by sale or otherwise, or shall unload the same, or any part thereof, at any other than such port or place, or shall sell or dispose of the contents of such vessel, car or other vehicle, or any part thereof, before such delivery, he shall be deemed guilty of felony, and on conviction thereof, before any court of competent jurisdiction, pay a fine not exceeding $1,000, or shall be imprisoned for a term not exceeding five years, or both, at the discretion of the court; and such vessel, car or other vehicle, with its contents, shall be forfeited to the United States, and may be seized whenever found within the United States, and disposed of and sold as in other cases of forfeiture: Provided, that nothing in this section shall be construed to prevent sales of cargo, in whole or in part, prior to arrival, to be delivered as per manifest, and after due inspection.”

"Sec. 5. And be it further enacted, That if any unauthorized person or persons shall wilfully break, cut, pick, open or remove any wire, seal, lead, lock or other fastening or mark attached to any vessel, car or other vehicle, crate, box, bag, bale, basket, barrel, bundle, cask, trunk, package or parcel, or any

*This opinion is published here on account of its supposed value as a statement of the principles of pleading in criminal and penal proceedings and the doctrine of criminal intent.

thing whatsoever, under and by virtue of this act and regulations authorized by it, or any other act of congress, or shall affix or attach, or in any way wilfully aid, assist or encourage the affixing or attaching, by wire or otherwise, to any vessel, car or other vehicle, or to any crate, box, bale, barrel, bag, basket, bundle, cask, package, parcel, article, or thing of any kind, any seal, lead, metal or anything purporting to be a seal authorized by law, such person or persons shall be deemed guilty of felony, and, upon conviction before any court of competent jurisdiction, shall be imprisoned for a term not exceeding five years, or shall pay a fine of not exceeding $1,000, or both, at the discretion of the court. And each vessel, car, or other vehicle, crate, box, bag, basket, barrel, bundle, cask, trunk, package, parcel or other thing, with the cargo or contents thereof, from which the wire, seal, lead, lock or other fastening or mark shall have been broken, cut, picked, opened or removed, by any such unauthorized person or persons, or to which such seal, or other thing purporting to be a seal, has been wrongfully attached as aforesaid, shall be forfeited to the United States." The information, after stating the seizure of the property in question, alleges the proper sealing and closing of the three cars containing the three hundred barrels of flour, at Clifton, in Canada, by the consul of the United States, as authorized by the regulations prescribed under the authority of the act of congress; that said cars were permitted, by reason thereof, to enter and pass the port of Niagara without inspection; and that before the said cars arrived at the port of their destination, the seals, by which said cars had been sealed and closed by the consul, were broken, cut, opened and removed from each and all of the said cars by some unauthorized person, by which such cars and the r contents had become forfeited. The information does not allege that such seals were "wilfully" broken, cut, opened or removed; nor does it contain any allegation that the same was done wilfully or maliciously, or with any fraudu lent, corrupt, unlawful or improper purpose or intent.

The answer of the claimants admits the material allegations of the information, but sets up that the seals of the consul were removed from such cars by mistake, and not wilfully, nor for the purpose of violating any act of congress, or any regulation of the treasury; nor for the purpose of interfering with or removing any of the property contained therein; that said cars were not opened, nor was any of the property therein removed or interfered with; and that such seals, and the wires to which they were attached, were so removed. by an employee of the railroad company, in ignorance of their character, and of their being the seals of the consul, and for the purpose of putting on the doors of the cars a fastening which it had been the custom to place thereon, and thereby make the same more secure.

At the trial the jury returned a special verdict by which they found that the seals of the consul, affixed to the cars of the claimants, as stated in the information, were removed by an unauthorized person who was in the employ of the claimants; but that they were so removed in ignorance of the character and purpose of such seals, and without knowing by whom, or why, or for what purpose, they had been placed upon said cars; that they were so removed for the purpose of making the fastening of said cars more secure, without any improper or illegal motive or intention, or any desire or purpose to defraud the government, or enable any person to do so; and that no officer, agent or employee of the claimants aided, or assisted in, or directed or authorized, such removal, or in any manner consented thereto. Upon these pleadings, and this special verdict, the counsel for the claimants insisted, in substance: 1. That in

order to a conviction of a person for removing seals under the first clause of section 5, above quoted, it is necessary to show that the removal of the seals was wilful; that this was not shown by the evidence in this case, and is nega tived by the special verdict. 2. That the forfeiture declared by the last sentence of the section is only a further penalty for the commission of the act made criminal by the preceding sentence, and that there can be no forfeiture unless the facts proved would justify a criminal conviction of the party by whom the seals were removed.

§ 2059. The meaning of the words "knowingly," "wilfully" and "maliciously" considered.

1. The first question thus presented depends mainly upon the signification, purpose and effect of the term wilfully, as used in the section referred to; and it must be conceded that the question is not free from doubt. The words knowingly, wilfully and maliciously, either singly or united, or one of them connected with another, have been frequently used in criminal and penal statutes; but their signification and effect have not been, and cannot be, so precisely defined that different interpretations are not required in different cases,― depending to some extent upon the connection in which they are found. The first of these words does not, in common parlance, or in legal construction, necessarily and per se imply wicked purpose or perverse disposition, or indeed any evil or improper motive, intent or feeling; but the second is ordinarily used in a bad sense to express something of that kind, or to characterize an act done wantonly, or one which a man of reasonable knowledge and ability must know to be contrary to his duty. The last of these terms, maliciously, in its ordinary sense, and when used in criminal or otherwise penal statutes, implies the existence of a wicked, base or revengeful purpose, or an evil disposition and wanton disregard of the rights of others; though in its technical sense, as used in the merely formal though necessary allegations of an indictment, it generally has a less noxious signification, implying that legal malice which is presumed to exist whenever any unlawful and injurious act is voluntarily committed, rather than the actual existence of malignant feeling and evil purpose. In its ordinary sense, and when used in statutes, it is generally considered as including the term wilfully, and something more; and it has therefore been held that in an indictment founded on a statute requiring the act charged to be wilfully done in order to make it criminal, charging that the act was done maliciously was sufficient; but when the words wilfully and maliciously are both used in the statute creating the offense, it was held that both must be used in the indictment, and that an allegation that the act was done unlawfully and maliciously was not sufficient. Archb. Cr. P., 50.

§ 2060. " Wilfully" is ordinarily used in a bad sense.

The definitions given by our best lexicographers, as well as the authority of legal writers, show that wilfully is ordinarily used in a bad sense. Webster, whose definitions are most reliable, gives as the proper definition of wilful, in its present use, "governed by the will without yielding to reason; obstinate; perverse; inflexible; stubborn; refractory;" and he gives as the definition of wilfully, "in a wilful manner; obstinately; stubbornly." Upon the best consideration I have been able to give to this case and to the authorities which my researches have discovered, I am quite confident that neither the evidence nor the special verdict will justify the conclusion that the removal of the seals of the consul, as found by the verdict, was wilful, within the meaning and intent of the act of congress. It is true that a person who deliberately does an act