Imágenes de páginas
PDF
EPUB

of his pigments covers his canvas with the glaring images of natural objects, and his tent, bins, camera stand, camera box, head-rest, bath-holder, etc., are no more tools within the meaning of the exemption laws than the tent, stool, easel, hand-rest, brushes, pigment box, and paints, glaze, etc., of the painter."

NEEDLESS TORTURE OR MUTILATION.- Trapping a trespassing and depredating dog is not "needlessly torturing or mutilating" within a statute against cruelty to animals. Hodge v. State, 11 Lea, 528. The dog in question had annoyed the defendant by invading his premises at night, breaking up his hens' nests, and sucking the eggs. The defendant set a steel trap and caught the dog, and in his struggles to get away part of his tongue was torn out. The dog lost his power of barking, and from inability to eat became very lean. The court said: "There can be no doubt, we think, that in doing so his object was, by catching the animal, to protect his property, and relieve his premises from these depredations, and not for the purpose of inflicting needless torture upon the animal. * * * The defendant had a right to protect his premises against such invasions, and to adopt such means as were necessary for that purpose. * * * A literal construction of this act would seem to indicate that no one is permitted to kill or wound any living creature, however noxious, even a black bird or a crow, or a skunk, or a serpent, unless under some necessity, without being guilty of a penal offense.

We do not understand such to be the meaning of this act. Whilst its object was to prevent cruelty to animals, and it was intended as a humane provision for their protection, it was not intended to deprive a man of the right to protect himself, his premises and property, against the intrusions of worthless, mischievous or vicious animals, by such means as are reasonably necessary for that purpose."

HEIRS. The husband is not the "heir " of the wife. Wilkins v. Ordway, 59 N. H. 378. The court said: "But husband and wife are nowhere included with 'heirs' or 'next of kin' in the statutes. These terms, in their proper and legal signification and acceptation, have reference to relationship by blood." This decision is a reasonable complement of the decisions that hold that the wife is not the "heir " of the husband.

the purpose of making up their goods into clothing for their customers, whom they charged for the cloth of which the clothing was made, as well as for the labor and skill of making them up. * * * During the time they had license they would sometimes sell a piece of cloth, or some article of trimming or buttons, to a customer, without being made up, but since they had failed to take out a license they had ceased to sell any articles unless made up into clothing. We think there can be no question but that the defendants were merchants within the meaning of the statute above quoted, and were bound to obtain a license in order to carry on business in the manner above stated."

*

* *

BRIDGE.-In Smith Bridge Co. v. Bowman, Ohio Supreme Court, February, 1884, it was held that a railroad bridge is within the mechanics' lien law. In a dissenting opinion, Granger, C.J., said: "In its widest sense the word 'bridge' applies to any sort of structure extending from one point of support across an open space to another point of support, and of sufficient strength to permit the transit of some material object. But the usage of the people often takes charge of a word, and so applies it, that when uttered, or written, without accompanying words, or context, the hearer or reader understands that the speaker or writer refers to one of a particular class of objects instead of any one of many classes embraced by the fullest meaning of the word. Before any railroad was constructed, the word 'bridge' in connection with roads and highways had, by the people, been thus applied to structures across steams for the passage of travellers in ordinary modes. A road led up to each end of such a structure. The traveler left the road and entered upon the bridge, and again left the bridge and took to the road. Constructively, in a legal sense purely, the road sometimes crossed the bridge, and the bridge was, sometimes, in like manner a part of the road; but actually, in fact, the bridge was distinct from the road. Popularly then the word 'bridge' came to mean a structure whose primary object was the support of persons, animals and vehicles while crossing a stream or ravine. This meaning belonged to the word when the first railroad bridge was built. What is the primary object of such a bridge? What is the thing being constructed while it is being built? A railroad."

ROUNDING A POINT.- In The Margaret, June, 1884, MERCHANT. — In Murray v. State, 11 Lea, 218, it 50 L. T. Rep. (N. S.) 447, the court said, Brett, M. was held that a merchant tailor is a "merchant." The court said: "The facts proven on the trial were, that the defendants were copartners and carried on the business of merchant tailors in Memphis. They kept on hand a stock of goods, which they purchased outside of the State, and made them up into clothing and sold them upon orders of their customers. When a customer desired a suit of clothes or a garment they permitted him to select from their stock the particular piece of cloth or stuff he desired them made of, and they took his measure and made up the articles of clothing and sold them to him. They kept in their employ tailors for

R.: "The question to be considered is, what is the meaning of the rule which says that steam vessels navigating against the tide shall, before rounding the following points, viz.: Blackwall Point, ease their engines, and wait until any other vessels rounding the point with the tide have passed clear'? It seems to me that the first thing to be considered is, what is the meaning of 'point?' Now it is clear that the officers of this vessel knew what was meant. It is a nautical rule, and is written therefore in nautical language, and it is written with regard to a winding river where there are what sailors call points,' that is, where the land goes from a straight

line into the river, so that the river is obliged to wind round the point. Therefore the point is not a mathematical point, and it seems to me that the proper way of defining the 'point' under these circumstances, is this: that the point begins where a vessel having to go round it, either up or down the river, would, if there were nothing in the way, be obliged to use its steering gear for the purpose of continuing her course, and that it ends where the necessity of using the steering gear ceases. Therefore the point lies within those limits. The next question is, what is the meaning of 'before rounding the following points'? Is it before a vessel begins to round, or is it before she has finished getting round, what I call the point? It seems to me that it applies from the time when, if there was nothing in the way, a vessel begins to use her steering gear for the above purpose, and ends at the place where she would cease using her steering gear, and would go straight on her course as before. Therefore where the vessel is going against the tide, it seems to me that the words 'before rounding ' mean before the vessel has finished rounding the point in the sense in which I have described the point that is to say, that the rule applies, not only before the vessel begins to round the point, but it applies during the whole time that she is rounding

it."

[blocks in formation]

1. W. wrote and published of H. that he had colluded with an insolvent tenant in setting up a fictitious distress. In an action of libel brought by H. against W. the judge left it to the jury to say whether W. intended to injure H. by the publication. This was error because the tendency of the libel being injurious to H., W. was presumed to have intended it to be so.(2)

2. A baker is charged with delivering adulterated bread for the use of a public asylum. It is proved that A. delivered the bread. The presumption is that he intended it to be eaten.(3)

3. B. is charged with setting fire to a building with intent to injure the owner. It is proved that B. fired the building. The presumption arises that he intended to injure the owner. (4)

4. A debtor knowing himself to be insolvent, executes a bill of sale and an assignment of his book ac

(1) State v. Hessenkamp, 17 Iowa, 25 (1864): State v. Presell, 12 Ired. (L.) 105 (1851); Hayes v. State, 58 Ga. 47 (1877); Hoskins v. State, 11 id. 92 (1852).

(2) Haire v. Wilson, 9 B. & C. 643 (1829); King v. Harvey, 3 D. & R. 464 (1823).

(3) King v. Dixon, 3 M. & S. 12 (1814).

(4) R. v. Farrington, R. & R. 207 (1811).

counts to one of his creditors. The presumption is that this was done with the intention of giving a preference to such creditor.(5)

5. A married man enters a house of prostitution and remains there all night. The presumption is that he committed adultery while there.(6)

6. A wife who resided in Massachusetts goes to Maine and immediately applied for and obtains a divorce for causes not a ground for divorce in Massachusetts. The presumption arises that her purpose in removing to Maine was to obtain a divorce.(7)

7. A statute provides that certain conveyances made with intent to give a preference to certain creditors shall be void. A. makes a conveyance whose provisions prefer certain creditors. The presumption is that A. intended to give a preference.(8)

"The judge" said, Tenterden, C. J., in case 1, "ought not to have left it as a question to the jury whether the defendant intended to injure the plaintiff, for every man must be presumed to intend the natural and ordinary consequences of his own act." Aud Littledale, J., added: "If the tendency of the publication was injurious to the plaintiff, then the law will presume that the defendant, by publishing it, intended to produce the injury which it was calculated to effect."

In case 2 Lord Ellenborough said, that it was a universal principle that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing the act, and here it was alleged that he delivered the loaves for the use and supply of the children which could only mean for the children to eat, for otherwise they would not be for their use and supply.

In case 7, Shaw, C. J., said: "But the statute provides that the acts which it prohibits must be done with an intention to give a preference, The intent to prefer is essential, but every person is to be presumed to intend the natural and probable consequences of his own acts, and if such acts do in fact as this do give a very large preference, it is competent for the jury to infer the intent. It does not rebut this intent to show that the debtor has also another motive to the proceeding, namely, an expectation of pecuniary or other · future benefit to himself by means of further loans of money, and being enabled thereby to continue his business.'

(B.)

1. A., B. and C. sign a note "as trustees" of a church, it being represented to them that no individual liability could arise from their act. But the law considers a note so signed as binding the signers personally. The presumption is that A., B. and C. intended to bind themselves personally.(9)

2. A. who holds two claims against B. gives him a release under seal of and a simple receipt of payment of the other. The presumption is that A. intended that the former should be conclusive and that the latter should not.(10)

3. A debtor makes a fraudulent preference by assignment of his property. He makes also a "conveyance of his property for the benefit of crediters." The (5) Ecker v. McAllister, 45 Md. 290 (1876); Gardner v. Lewis, 7 Gall. 377 (1848).

(6) Evans v. Evans, 41 Cal. 103 (1871); Astley v. Astley, 1 Hagg. Ecc. 720 (1828).

(7) Chase v. Chase, 5 Gray, 157 (1856).

(8) Denny v. Dana, 2 Cush. 160 (1848); Beals v. Clark, 13 Gray, 18 (1859).

(9) Mears v. Graham, 8 Blackf. 144 (1846); Burrit v. Dickson, 8 Cal. 113 (1857).

(10) Jones v. Ricketts, 7 Md. 108 (1854).

law presumes that the intent of the conveyance was to delay or defraud his creditors. (11)

4. A. forges the name of B. to a bill of exchange and negotiates it. The presumption is that A. intended to defraud B., and his intention to pay it when it became due is irrelevant. (12)

5. B. forges C.'s name to a check on the bank of D. C. has no account there. The presumption is that B. intended to defraud C.(13)

6. A. was employed by B. to purchase stock to a certain amount. A. gave B. a forged receipt for stock for that amount. The presumption is that A. did this with the intention of defrauding B., and B.'s opinion that he did not intend to defraud is irrelevant.(14)

7. C. was indicted for issuing a forged bank note with intent to defraud the bank. The note was issued by C. to a third person, and it appeared that its execution was such as to render its spuriousness easily detectable by the officers of the bank who must examine it before paying it; but this an ordinary person would not discover. C. was presumed to have intended to defraud the bank.(15)

[ocr errors]

fraud there should have been some person defrauded or who might possibly have been defrauded. But I do not think that at all necessary. A man may have an intent to defraud and yet there may not be any person who could be defrauded by his act. Suppose a person with a good account at his bankers, and a friend with his knowledge forges his name to a check either to try his credit or to imitate his handwriting, there would be no intent to defraud, though there might be parties who might be defrauded; but where another person has no account at his bankers, but a man supposes that he has, and on that supposition forges his name, there would be an intent to defraud in that case, although no person could be defrauded."

In case 10 it was said: "As men do not generally violate the Criminal Code, the law presumes every man innocent, and this presumption of innocence is to be observed by the jury in every case. But some men do violate the law, and as they seldom do unlawful acts with innocent intentions, the law therefore presumes every act in itself unlawful, to have been

8. A. sets fire to a building. The presumption is criminally intended until the contrary appears. A that he intended to destroy it.(16)

9. A. gives a promissory note to B. The presumption is that A. and B. intended that the note should be paid in legal currency.(17)

10. A statute provides that the failure to pay over money by a public officer shall be punishable; a public officer is indicted for failing to turn over a license fee collected by him. The presumption is that his failure was willful and intentional.(18)

In case 2 it was said: "When the law ascribes to one instrument a conclusive and to another a prima facie character, we must presume that parties using either intend it to operate according to its legal effect. A release will discharge a debt when a receipt will not. Persons may settle in good faith under the impression that the amount paid is all that is due. But it sometimes happens that mistakes occur, and to enable parties to correct them the law has declared that mere receipts are not conclusive."

In case 3 Lord Chancellor Cairns said: "It is true that under this as under previous statutes of bankruptcy, two acts are specified which if done by the bankrupt are not only acts of bankruptcy, but are also, if followed by bankruptcy void. One is a conveyance or assignment of the bankrupt's property for the benefit of creditors, and the other is a conveyance or assignment fraudulent or by way of fraudulent preference. It is to be observed as to one of these acts, namely, a conveyance or assignment by way of fraudulent preference, special provisions have always been made in bankruptcy legislation, making such a conveyance or assignment void by express enactment, and reducing it accordingly; and as to the other, namely, a conveyance in trust for all creditors, it has been held from the earliest times of bankruptcy law, that as the effect of such a conveyance must be to delay or defeat creditors, the law will presume an intention to delay or defeat creditors, and the conveyance would therefore be invalid as against, and perhaps even without reference to the policy of the bankruptcy laws."

[ocr errors]

"The Recorder," said Maule, J., in case 5, seems to have thought that in order to prove an intent to de

(11) Ex parte Villars, L. R., 9 Ch. App. 443 (1874). (12) R. v. Hill, 2 Moody, 30 (1838).

(13) R. v. Nash, 2 Den. C. C. 498 (1852).

(14) R. v. Sheppard, R & R. 160 (1809).

(15) R. v. Mozagora, R. & R. 291 (1815).

(16) People v. Orcutt, 1 Park. C. C. 252 (1851).

(17) Williams v. Boozeman, 18 La. Ann. 532 (1866). (18) State v. Heaton, 77 N, C. 504 (1877).

familiar example is on the trial of a case of homicide. Malice is presumed from the fact of killing, and the burden of disproving the malice is thrown upon the accused. The same principle pervades the law in civil as well as criminal actions. Indeed if this were not so the administration of the criminal law would be practically defeated, as there is in most cases no other way of sustaining the intent than by establishing the unlawfulness of the act.

RULE II. Where an act is criminal per se a criminal intent is presumed from the commission of the act.(19)

ILLUSTRATIONS.

N. is proved to have been stabbed with a dirk knife by T., from which wound he instantly died. T. is presumed to have intended to kill N.(20)

2. S. shoots at C. who is on horseback. The ball takes effect on C. and kills him. 8. testifies that he shot at C. intending only that his horse should throw him. The presumption is that S. intended to kill C.(31)

In Com. v. Webster, (22) Chief Justice Shaw said: "The ordinary feelings, passions and propensities under which parties act are facts, known by observation and experience; and they are so uniform in their operation that a conclusion may be safely drawn that if a person acts in a particular manner he does so under the influence of a particular motive. Indeed this is the only mode in which a large class of crimes can be proved, I mean crimes which consist not merely in an act done, but in the motive and intent with which they are done. But this intent is a secret of the heart which can only be directly known to the searcher of all hearts; and if the accused makes no declaration on the subject, and chooses to keep his own secret, which he is likely to do if his purposes are criminal, such criminal intent may be inferred and often is safely inferred from his conduct and exter

nal acts."

Said Chief Justice Shaw in case 1: "A sane man, a voluntary agent, acting upon motives must be presumed to contemplate and intend the necessary,

(19) People v. March, 6 Cal. 543 (1856); Murphy v. Com., 23 Grat. 960 (1873); McCone v. High, 24 Iowa, 336 (1868); Murphy v. State, 37 Ala. 142 (1861); Carroll v. State, 23 Ala. 28 (1853). (20) Com. v. York, 9 Metc. 93 (1845); Murphy v. People, 37 Ill. 447 (1865); Riggs v. State, 30 Mass. 636 (1856); State v. Bertrand, 3 Oregon, 61 (1868); State v. Holme, 54 Mo. 153 (1873); Conner v. State, 4 Yerg. 137 (1833).

(21) State v. Smith, 2 Strobh. 77 (1847). (22) 5 Cush. 316 (1850).

natural, and probable consequences of his own acts. If therefore one voluntarily or willfully does an act which has a direct tendency to destroy anothers life, the natural and necessary conclusion from the act is that he intended so to destroy such person's life. So if the direct tendency of the willful act is to do another some great bodily harm, and death in fact follows, as a natural and probable consequence of the act, it is presumed that he intended such consequence, and be must stand legally responsible for it. So where a dangerous and deadly weapon is used, with violence, upon the person of another, as this has a direct tendency to destroy life, or do some great bodily harm to the person assailed, the intention to take life or do him some great bodily harm is a necessary conclusion from the act." And to the same effect is the language of the chief justice of Pennsylvania: He who uses upon the body of another at some vital part with a manifest intention to use it upon him, a deadly weapon, as an axe, a gun, a knife or a pistol, must in the absence of qualifying facts be presumed to know that his blow is likely to kill; and knowing this must be presumed to intend the death which is the probable and ordinary consequence of such an act."(23)

In case 2 it was said: "If one were to fire a loaded gun into a crowd, or throw a piece of heavy timber from the top of a house into a street filled with people, the law would infer malice from the wickedness of the act; so also the law will imply that the prisoner intended the natural and probable consequence of his own act, as in the case of shooting a gun into a crowd, the law will imply from the wantonness of the act, that he intended to kill some one, though it might have been done in sport. If the prisoner's object had been nothing more than to make Carter's horse throw him, and he had used such means only as were appropriate to that end, then there would have been some reason for applying to his case the distinction. But in this case the act indicated an intention to kill-it was calculated to produce that effect and no other--death was the probable consequence and did result from it."

*

*

*

"If a man raises his rifle and deliberately fires its contents into the bosom of another, or by a blow with an axe, which might fell an ox, buries it in the brain of another, the inference from the act is irresistible that death was meant, and so the law presumes.

"The inferences of the mind, which are equally presumptions of law, are certain and conclusive in proportion as the acts, from their nature and character, are certain to result in death.

"Thus the plunging of a poniard into the heart of another, we do not doubt, was intended to kill, but if aimed only at the arm or leg, though death may be the result, yet the mere fact of giving such a blow, so long as that is the only criterion by which we judge, renders the intent more doubtful and the inference less strong. So if one beat a full-grown man with his fist, and death ensues, we wouid ordinarily feel far more doubt that death was intended than if it had been produced by the use of a dangerous weapon. So too regard may be had to the relative strength and powers of endurance of the parties, as well as to the mode in which the violence is applied.

"A powerful blow given by the fist alone (but not repeated) upon the head of a full-grown man would not ordinarily be regarded as intended to produce death; but what else could be inferred if the same blow were planted upon the temple of an infant child?

"In many cases the inference that death is intended is as strong when the act is perpetrated by a drunken as when perpetrated by a sober man. Thus if by a deadly weapon, as by a rifle or a bowie-knife, a bullet (23) Agnew, C. J., in Com. v. Drum, 58 Penn. St. 17 (1868).

or blow is sent directly or designedly to some vital spot, we should infer that death was intended with almost equal certainty, whether the perpetrator were drunk or sober. So too when death is produced by poison, and we see in the mode of its administration stealthy calculation, we would infer that death was intended, whether he who administered the poison was in a state of sobriety or intoxication, since in the very character of the act we could read design.

"But we also know that intoxication produces more effect upon the nervous system of some than of others. It clouds and obscures the judgment of one more than it does another. It produces greater extravagance of exertion and action in some than it does in others, and sometimes consequences result from such extravagant exertion and action of which the party himself had no idea. All these things are to be considered by this jury when determining upon this question of intent."

The rule that a man must be supposed to intend the natural results of his act is said by Hubbard, J., to be by no means an infallible proposition, though often treated as an axiom. "The result is not always evidence of the supposed intent. When we look back upon events that have happened we stand in a different position, we behold with a clearer vision, as we embrace within our glance the beginning and the end, the act and the consequence. But the man who is doing the act may contemplate a very different result. His feelings may be biassed by his wishes, and sanguine feelings may be the cause of overlooking difficulties which to a more quiet temperment might appear insurmountable. Disappointments also may take place which were not anticipated. (24)

"It has been urged," said Comstock, J., in Curtis v. Leavitt, (25)"that the debtor corporation must be deemed to have intended the result of its own acts. This is very often a useful rule of evidence in arriving at a conclusion upon a question of motive and intention, but it is not a rule of law. If a given result must, by plain and absolute necessity, follow from a particular action, or if it be so likely to follow that no two minds of equal intelligence could differ in conclusion, viewing the subject from the same point of observation as the actor himself, then there would be no injustice in holding that he intended such result. Still the question is one of fact; what was the intent?

And in Quinebang Bank v. Brewster, (26) Sanford, J., said: "The intention of a party is a fact to be proved as all other facts are proved, not indeed necessarily by direct evidence, but either by direct evidence or by the proof of other facts indicative of such intention, and from which facts its actual existence and operation may be inferred. The law makes no conclusive presumption in regard to it. Indeed the law never conclusively presumes that a person intended to violate the law or commit a fraud. The act done and the circumstances attending its commission may indicate more or less clearly the intention of the party doing it, and authorize an inference of more or less weight in regard to such intention."

RULE III. But when a specific intent is required to make an act an offense, the doing of the act does not raise a presumption that it was done with the specific intent.

ILLUSTRATIONS.

1. R. is charged with assaulting with intent to murder one E. It is proved that R. fired a loaded pistol at

(24) Jones v. Howland, 8 Metc. 306 (1844). (25) 15 N. Y. 1 (1857).

(26) 30 Conn. 559 (1862).

E.

There is no presumption that R. intended to murder E. (27)

2. A statute makes a willful, deliberate and premeditated killing, murder in the first degree. B. kills C. There is no presumption that the killing was deliberate and premeditated.(28)

In case 1 it was said: "The general rule is well settled, to which there are few if any exceptions, that when a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself and must be found by the jury, as matter of fact, before a conviction can be had. But especially when the offense created by the statute, consisting of the act and the intent, constitutes as in the present case, substantially an attempt to commit some higher offense than that which the defendant has succeeded in accomplishing by it, we are aware of no well founded exceptions to the rule above stated, and in all such cases the particular intent must be proved to the satisfaction of the jury and no intent in law or mere legal presumption, differing from the intent in fact can be allowed to supply the place of the latter."

RULE IV. The law presumes an intent from acts in the absence of declarations (a) where the party is physically and mentally capable of forming an intent.(b)

ILLUSTRATIONS. (A.)

1. The question was whether a certain incumbrance was intended to be excepted from a covenant against incumbrances in a deed. It appeared that the incumbrance in question was notorious and of long standing, and no mention of it was made in the deed. The presumption was that it was intended to be excepted. (29) 2. In case 1 it appeared that nothing was said by the parties in reference to the incumbrance. The presumption of an intention to except it is raised from these acts above.(30)

In case 1 it was said: "From the existence and notoriety of the incumbrance, its long standing and the long acquaintance of the parties with it as a permanent thing, the fact that no mention was made of it in the negotiation, though other incumbrances were mentioned in the deed and excepted, the committee drew the inference that it was the intention of the parties that it should be excepted from the deed. *** The argument in favor of the finding of the committee is very strong. An express warranty on the sale of personal chattels does not apply to visible defects, because the fact that the defect was plainly visible is evidence that the purchaser knew it, and did not take his warranty on account of it. This principle does not apply in the case of a warranty by deed, because the terms of a deed cannot be contradicted or varied by parol, and undoubtedly a man may, if he will be so foolhardy, make an express warranty in a deed, where he knows that it is broken at the moment the deed is delivered, and knows also that the fact is well known to the party to whom he gives it. But ordinarily we suppose that parties do not in this open way intentionally involve themselves in lawsuits. And we do not see why the plain, open visible, and notorious character of this incumbrance, connected as it was with full knowledge of the parties of its existence, does not furnish evidence that it was not intended by the parties to be warranted against upon a

(27) Roberts v. People, 19 Mich. 401 (1870); Mayher v. People, 10 id. 212 (1862).

(28) Com. v. Dunn, 58 Penn. St. 9 (1876); State v. Mitchell, 64 Mo. 191 (1876); State v. Foster, 61 id. 549 (1876); State v. Lane, 64 id. 319 (1876); Hamby v. State, 36 Tex. 523 (1872). (29) Knapp v. White, 23 Conn. 529 (1855). (30) Id.

principle analogous to that which applies to visible defects in the sale of personal chattels by parol."

In case 2 it was said: "The defendant's counsel seem to suppose that there could have been no intention to except the right to maintain the ditch from the deed, because the parties said nothing about it. But courts will often find decisions and judgments upon the presumed intention of the parties where nothing has been said. A man is presumed to intend the natural and probable consequence of what he does; and on this principle many persons have been found guilty of the highest crimes. A man is presumed to accept of a conveyance of property made to him, on the ground that it being for his benefit he would naturally wish to receive it; and on this principle titles have been established. Indeed we always draw inferences from our observation of the usual habits of men which lead to a great variety of presumptions. These inferences are the conclusions drawn by reason and common sense from premises established by proof; and are as applicable to questions of intention where the intention of parties becomes important as to any other disputable fact. It is true, as remarked by Judge Story, that if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief on the ground that the written paper ought to be treated as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy. But this does not mean that there must always exist direct and positive proof that the instrument does not express the true intent of the parties in order to justify the court in reforming it. To give any such construction to the rule would be to deny any right in a court of equity to interfere unless the instrument could be shown to vary from written memoranda of the terms of the contract from which it is drawn up, or some evidence equally decisive. We do not so understand the rule."

(B.)

1. A. is indicted for burglary. It is proved that A. broke and entered a store in the night-time. The presumption is that A. intended to commit a burglary. A. shows that he was at the time too drunk to have entertained such an intent. The presumption of intent no longer arises. (31)

2. R. is indicted for shooting at S. with intent to kill him. R. shot at S. while in a state o intoxication. The guilt of R. turns on the question whether R. was in such a state of mind as to be able to form an intent. (32)

In case 2, Coleridge, J., said: "There are two points for your consideration, first, as to the act; second, as to the intent. With regard to the latter, the allegation respecting it in the indictment must, no doubt, be proved to your satisfaction before you can find the prisoner guilty upon the full charge. The inquiry as to intent is far less simple than that as to whether an act has been committed, because you cannot look into a man's mind to see what was passing there at any given time. What he intends can only be judged of by what he does or says, and if he says nothing then his acts alone must guide you to your decision. It is a general rule in criminal law, and one founded on common sense, that juries are to presume a man to do what is the natural consequence of his act. The consequence is sometimes so apparent as to leave no doubt of the intention. A man could not put a pistol

(31) Ingalls v. State, 48 Wis. 647 (1879); Wood v. State, 34 Ark. 341 (1879); Roberts v. People, 19 Mich. 401 (1870); State v. Bell, 29 Iowa. 316 (1870); State v. Maxwell, 42 id. 208 (1875); Wenz v. State, 1 Tcx. App., 36 (1876); Loza v. State, id, 488 (1877): U. S. v. Bowen, 4 Cranch C. C. 604 (1835); State v. Coleman, 27 La. Ann. 691 (1875); State v. Trivas, 32 id. 1086; 36 Am. Rep. 293 (1880).

(32) R. v. Monkhouse, 4 Cox, 55.

« AnteriorContinuar »