more mitigated rule, and proposed to extend the exception "to any person whose former husband or wife, having been absent one year or more at the time of such second marriage, shall be believed to be dead." This proposal was stricken out by the committee appointed to consider the report of the commissioners, and the legislature adopted their amendment, and passed the law as it stands, without the proposed additional exception. This shows at least that the attention of the legislature was called to the subject, and that it was by design, and not through inadvertence, that the law was framed as it is.

It was urged in the argument that where there is no criminal intent, there can be no guilt; and if the former husband was honestly believed to be dead, there could be no criminal intent. The proposition stated is undoubtedly correct in a general sense; but the conclusion drawn from it in this case by no means follows. Whatever one voluntarily does, he of course intends to do. If the statute has made it criminal to do any act under particular circumstances, the party voluntarily doing that act is chargeable with the criminal intent of doing it. On this subject the law has deemed it so important to prohibit the crime of polygamy, and found it so difficult to prescribe what shall be sufficient evidence of the death of an absent person to warrant a belief of the fact, and as the same vague evidence might create a belief in one mind and not in another, the law has also deemed it wise to fix a definite period of seven years' continued absence, without knowledge of the contrary, to warrant a belief that the absent person is actually dead. One. therefore, who marries within that time, if the other party be actually living, whether the fact is believed or not, is chargeable with that criminal intent, by purposely doing that which the law expressly prohibits. Exceptions overruled.1

[The court did not pass sentence on the defendant, but took a recognizance for her appearance in court at a future day. On the 9th of July, 1844, the defendant received a full pardon from the governor, which she brought into court on the 15th of said July, and pleaded the same in bar of sentence. Whereupon the court ordered her to be discharged.]

COMMONWEALTH v. BOYNTON.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

[Reported 2 Allen, 160.]

1861.

INDICTMENT against the defendant for being a common seller of intoxicating liquor. At the trial in the Superior Court, after certain sales of beer had been testified to, the defendant offered evidence to prove that the article sold was not intoxicating, and that, if it were

1 See, contra, Squire v. State, 46 Ind. 459.- ED.

so, he had no reason to suppose that it was so, and bought it for beer which was not intoxicating, and did not believe it to be intoxicating; but BRIGHAM, J., rejected the latter part of the evidence offered, and instructed the jury that if the defendant sold liquor which was intoxicating, as alleged, he might be found guilty, although he did not know or suppose that it was so. The defendant was convicted, and alleged

exceptions.

J. Q. A. Griffin for the defendant.

Foster, Attorney-General, for the Commonwealth.

HOAR, J. The court are of opinion that the sale of intoxicating liquors in violation of the statute prohibition is not one of those cases in which it is necessary to allege or prove that the person charged with the offence knew the illegal character of his act; or in which a want of such knowledge would avail him in defence. If the defendant purposely sold the liquor, which was in fact intoxicating, he was bound at his peril to ascertain the nature of the article which he sold. Where the act is expressly prohibited, without reference to the intent or purpose, and the party committing it was under no obligation to act in the premises, unless he knew that he could do so lawfully, if he violates the law he incurs the penalty. The salutary rule that every man is conclusively presumed to know the law is sometimes productive of hardship in particular cases. And the hardship is no greater where the law imposes the duty to ascertain a fact.

It could hardly be doubted that it would constitute no defence to an indictment for obstructing a highway, if the defendant could show that he mistook the boundaries of the way, and honestly supposed that he was placing the obstruction upon his own land. The same principle was applied in the case of bigamy, Commonwealth v. Mash, 7 Met. 472; and in the case of adultery, Commonwealth v. Elwell, 2 Met. 190.

Exceptions overruled.1

1 See acc. Com. v. Farren, 9 All. 489; State v. Smith, 10 R. I. 258 (selling adul terated milk); State v. Stanton, 37 Conn. 421 (selling adulterated liquor).

Contra, Teague v. State, 25 Tex. App. 577 (selling diseased meat).

On the same principle it has been held that one is guilty (under a statute forbid. ding it) for allowing a minor to remain in his billiard saloon, though he did not know that the youth was a minor. State v. Probasco, 62 Ia. 400. (See, contra, Marshall v. State, 49 Ala. 21; Stern v. State, 53 Ga. 229.) The same decision has been reached in a prosecution upon a statute forbidding the sale of intoxicating liquor to a minor. McCutcheon v. People, 69 Ill. 601; Ulrich v. Com., 6 Bush, 400; In re Carlson's License, 127 Pa. 330; State v. Hartfiel, 24 Wis. 60. (See, contra, Mulreed v. State, 107 Ind. 62.) So in the case of a sale to a common drunkard. Barnes v. State, 19 Conn. 398. (See, contra, Williams v. State, 48 Ind. 306).

State v.

On the same ground one is held guilty under a statute forbidding the sale of oleomargarine, though he sold oleomargarine in ignorance of its real nature. Newton, 50 N. J. 534; Com. v. Weiss, 139 Pa. 247.

See also U. S. v. Leathers, 6 Sawy. 17; People v. Harris, 29 Cal. 678; State Welch, 21 Minn. 22. — ED.

STATE v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY.

SUPREME COURT OF Iowa. 1903.

[Reported 122 Ia. 22.]

LADD, J.1 The defendant admitted the failure of its train to stop within 800 feet and more than 200 feet from the crossing, and interposed the defence that the engineer in charge did all he could to stop it, but that, owing to the brakes not working in the usual manner, the momentum of the train carried it over the crossing. The court submitted the case to the jury on the theory that the burden of proof was on the defendant, in order to exonerate itself from liability, to show by a preponderance of evidence that the failure to stop was not due to any negligence on the part of its employees in operating the train, or of the company in not having proper appliances, or in keeping those had in proper condition, and that the company might be liable even though the engineer was not. Possibly that should have been the law, but it was not so written by the legislature. The statute in question reads: "All trains run upon any railroad in this states which intersects or crosses any other railroad on the same level shall be brought to a full stop at a distance of not less than two hundred and not more than eight hundred feet from the point of intersection or crossing, before such intersection or crossing is passed, except as otherwise provided in this chapter. Any engineer violating the provisions of this section shall forfeit one hundred dollars for each offence, to be recovered in an action in the name of the State for the benefit of the school fund, and the corporation on whose road the offence is committed shall forfeit the sum of two hundred dollars for each offence, to be recovered in like manner." Section 2073, Code. The latter part of the statute is purely penal in character, with the evident object of punishing the offender, rather than afford a remedy for the wrongful act. In this respect it differs radically from provisions awarding damages flowing from certain acts, such as the setting out of fire. Its meaning, then, cannot be extended beyond the terms employed. But one offence is denounced by it, and that is the omission of the engineer to stop the train as required. The first sentence commands what shall be done -- defines a duty; the first clause of the second sentence imposes a penalty on any engineer for each offence" of omitting such duty; the second clause of the second sentence adds a penalty against the corporation "on whose road such offence is committed." To what do these last words refer? Manifestly, to the offence of which the engineer is guilty.

1 Part of the opinion only is given. - ED.

SECT. I.] STATE v. CHICAGO, MILWAUKEE & ST. PAUL RY.

273

No other is mentioned in the section. The statute cannot be fairly read otherwise. The thought seems to have been that, as the engineer controls the train, the fault in failing to stop as required is primarily his, and secondarily that of the company for which he acts. There is no ground for holding that the company may be liable independent of any fault of the engineer. The forfeiture of the corporation is made to depend upon his guilt of the offence defined, and upon that only.

As the statute is purely penal in character, it ought not to be construed as fixing an absolute liability. A failure to stop may sometimes occur, notwithstanding the utmost efforts of the engineer. In such even this omission cannot be regarded as unlawful. The law never designs the infliction of punishment where there is no wrong. The necessity of intent of purpose is always to be implied in such statutes. An actual and conscious infraction of duty is contemplated. The maxim, "Actus non facit reum nisi mens sit rea,” obtains in all penal statutes unless excluded by their language. See Regina v. Tolson, 23 Q. B. Div. 168, where it was said, "Crime is not committed where the mind of the person committing the act is innocent." See, also, Sutherland on Statutory Construction, section 354 et seq. No doubt many statutes impose a penalty regardless of the intention of those who violate them, but these ordinarily relate to matters which may be known definitely in advance. In such cases commission of the offence is due to neglect or inadvertence. But even then it can hardly be supposed the offender would be held if the act were committed when in a state of somnambulism or insanity. As it is to be assumed in the exercise of the proper care that the engineer has control of his train at all times, proof of the mere failure to stop makes out a prima facie case. But this was open to explanation, and if, from that given, it was made to appear that he made proper preparation, and intended to stop, and put forth every reasonable effort to do so, he should be exonerated. See Furley v. Ry. Co., 90 Iowa, 146.

SECTION II.

The mens rea: Intent.

REGINA v. SHARPE.

CROWN CASE RESERVED. 1857.

[Reported 7 Cox C. C. 214.]

THE defendant was tried at Hertford, before Erle, J., who reserved the following case:

The indictment in the first count charged that the defendant, a certain burial-ground belonging to a certain meeting-house of a congregation of Protestants dissenting from the Church of England, unlawfully did break and enter, and a certain grave there, in which the body of one Louisa Sharpe, had before then been interred, with force and arms, unlawfully, wilfully, and indecently did dig open, and the said body of the said Louisa Sharpe out of the said grave, unlawfully, wilfully, and indecently did take and carry away.

And there were other counts, varying the charge, which may be resorted to if necessary. The evidence was, that the defendant's family had belonged to a congregation of dissenters at Hitchin, and his mother, with some other of his relations, had been buried in one grave in the burying-ground of that congregation there, with the consent of those who were interested. That the father of the defendant had recently died. That the defendant prevailed on the wife of the person to whom the key of the burying-ground was intrusted to allow him to cause the grave above mentioned to be opened, under the pretext that he wished to bury his father in the same grave, and, in order thereto, to examine whether the size of the grave would admit his father's coffin. That he caused the coffins of his stepmother and two children to be taken out, and so came to the coffin of his mother. which was under them, and was much decomposed, and that he caused the remains of this coffin, with the corpse therein, to be placed is no authority for saying that relationship can justify the taking of a corpse from the grave where it had been laid. We have been unwilling to affirm the conviction on account of our respect for the motives of the defendant; but we have felt it our duty to do so rather than lay down a rule which might lessen the only protection the law affords in respect of the burials of dissenters. The result is, the conviction will stand, and, as the judge states, the sentence should be a nominal fine of one shilling. Conviction affirmed.1

1 See Rex v. Ogden, 6 C. & P. 631.- ED.