for that purpose and was put to extra trouble and expense thereby; that the debtor while under the arrest conducted himself in such a manner as to render it necessary to procure keepers, the expense of which was computed, and occasioned the sum taken to exceed the common fees, and this was, at the time, declared and stated by the defendant to the debtor. The court doubted whether the sum of 30 cents which was taxed for levying was authorized by the statute; but it being agreed by the counsel on both sides that the usage in this country had been uniform in taxing that sum in the fees of officers who collected executions, the court said that as it respected that part of the sum received by the defendant, the fact would not evince a corrupt intention, and therefore would not bring his case within the statute, though whether he could on that ground justify in a civil action taking that sum, was another question. And SEWALL, J., who charged the jury, stated that if they believed the 48 cents excess was taken for extra trouble and expense, they must acquit the defendant, as the sum of 15 dollars and 56 cents was no more than the legal and customary fees; that if they doubted as to that, yet if they believed it was taken from a mistake in computation, or that the defendant thought he had a right to take it, although he had not a strict legal right, they must also acquit; that possibly, in a civil action, he might be compelled in such case to refund, but the smallness of the sum which was taken beyond the legal fees, rendered it extremely improbable that there should have existed a corrupt intention; of that, however, the jury were the judges; but unless the excess were willfully and corruptly demanded and received, it was not within the statute. The jury without leaving their seats, acquitted the defendant. MISTAKE-ISSUING LICENSE IN WRONG FORM NOT INDICTABLE. STATE v. GARDNER. [5 Nev. 377.] In the Supreme Court of Nevada, January, 1870. A Statute Provided that it Should be Criminal to issue licenses except in a certain form. A deputy sheriff on issuing a license found he had no proper forms or blanks and therefore had a paper drawn up by an attorney, which he issued as a license. There was no fraud or fraudulent intent on his part. Held, that he was not criminally liable under the statute. APPEAL from the District Court of the Sixth Judicial District, Marshal County. H. M. Steele, for appellant. R. M. Clarke, Attorney-General, for respondent. Appellant was tried, indicted and convicted of a felony, under a statute of this State which provides that: "If either the county treasurer, county auditor, sheriff, or any other person, shall issue, have in his possession with intent to circulate, or put into circulation, any other license than those properly issued to the sheriff under the provisions of this act, the person so offending shall be guilty of felony, and on conviction be sentenced to imprisonment in the State prison for a term not less than one year nor more than four years." 1 The undisputable facts in evidence were that appellant as deputy sheriff and collector of licenses, had brought suit as by statute authorized against certain merchants doing business within his county without license; that they had settled the suit by paying costs and amount demanded for license, and thereupon, he having no proper forms, had given them a paper written by his attorney, and signed by himself, purporting to be a license. There was no pretense of any fraud, or fraudulent intention on his part, further than indicated by the mere naked act. On the contrary, the district judge trying the cause was so much impressed with the hardship of the case, that he combined with his sentence of one year's imprisonment in the State prison an earnest recommendation that appellant be pardoned, and restored to all the rights of citizenship, at the earliest possible moment. This statement suggests an anomaly, opposed alike to reason, justice, and law. The error of the case consists in the too narrow view taken of the statute in question. The district judge, while apparently regretting the necessity, felt himself compelled to construe the statute literally and technically, without reference to the general principles of criminal law. Thus, he says in his charge to the jury: "When any person presumes to license such business transactions, otherwise than as the law directs, he is a breaker of the law, the chief question The being whether he issued the license described in the indictment. gist of the offense charged is the issuance of the license as charged. * If, therefore, in considering the evidence and the law given you in court, you find the defendant, T. S. Gardner, did issue a license other than the one properly issued to the sheriff under the provisions of the law I quoted to you in opening this charge, to N. J. Salisbury & Co., and at the town of Wadsworth, in the county of Washoe, State of Nevada, and did take and receive therefor the sum of seven dollars and fifty cents, as charged in the indictment, you will render a verdict of guilty as charged in the indictment." The italics 1 Stats. 1964-5, p. 299, sec. 74. are as in the record. The indictment charged a willful, felonious and fraudulent issuing. It may be remarked here that receiving the money is no portion of the offense created by statute, and it is not impossible that the indictment is bad by reason of containing matter relative thereto, which may allege a separate and distinct offense under the same statute, but as this case presents a broader ground for decision, let it rest on that. It will be observed that any question of intent is carefully ignored as the judge gave the law to the jury. He should rather have instructed thus: "Nothing short of the intent to do a forbidden thing will make a man criminal. Where such intent is wanting he commits no offense in law, though he does act completely within all the words of a statute which prohibits the act, being silent concerning the intent." And there are cases in which something even more than this is necessary. For example, the English statute1 makes it felony to write any matter or thing liable to stamp duty upon paper upon which had previously been written some other matter so liable, before the paper has been again stamped, but makes no mention whether the intent must be a fraudulent one or otherwise. Yet it was ruled by Abinger, C. B., that the offense is not committed unless the intent is fraudulent. The doctrine is, that the statute is to be so construed in connection with the common law, which requires an evil intent to accompany the evil act, as to add in favor of the defendant this provision." 2 It would be monstrous that one guilty of no evil intent should incur the odium of proven felony; if such is the law, better be remitted to lawlessness. As is well remarked by the author above quoted: "It is therefore a principle of our legal system, as probably of every other, that the essence of an offence is the wrongful intent, without which it can not exist.3 While the words of a statute are the primary guide to its meaning, it is a well settled principle of criminal law that a given case must come not only within the words of a statute, but also within its reason and spirit, and the mischief it was intended to remedy; and so it is said that in favor of defendants: "Criminal statutes are both contracted and expanded."4 Viewing the statute under consideration in the light of the general criminal law, it is impossible to believe that the Legislature proposed such fearful consequences upon the violation merely of the letter of the statute, and in so deciding the district judge erred. For the error indicated, the judgment is reversed, and the case remanded. 1 12 Geo. III., ch. 48, sec. 1. 21 Bish. Cr. L., (3d ed.) 429 31 Bish. Cr. L. (3d. ed.) 370. +1 Bish. Cr. L. (3d. ed.) 259, 272; 2 Lead. Crim. Cas. (2d. ed.) 178, 181, notes. IGNORANCE OF LAW-TAKING ILLEGAL FEE BY JUSTICE. CUTTER V. STATE. [36 N. J. L. 125.] In the Supreme Court of New Jersey, February Term, 1873. 1. Ignorance of Law - Law Unsettled or Obscure - Intent. - The maxim that ignorance of the law excuses no one should not be applied where the law is unsettled or obscure or where the guilty intention being a necessary constituent of the particular offense is dependent on a knowledge of the law. 2. Officer Taking Illegal Fee - Mistake of Law. - A magistrate, on an indictment for taking illegal fees, may show in defence that the money was received by him under a mistake as to his legal right. Writ of error to the Court of Oyer and Terminer of the County of Hudson. C. E. Scholfield and I. W. Scudder, for the plaintiff in error. BEASLEY, Chief Justice, delivered the opinion of the court. The defendant was indicted for extortion in taking fees to which he was not entitled, on a criminal complaint before him as a justice of the peace. The defence which he set up, and which was overruled, was that he had taken these moneys innocently, and under a belief that by force of the statute he had a right to exact them. This subject is regulated by the twenty-eighth section of the act for the punishment of crimes. This clause declares that no justice or other officer of this State shall receive or take any fee or reward, to execute and do his duty and office, but such as is or shall be allowed by the law of this State, and that "if any justice, etc., shall receive or take, by color of his office, any fee or reward whatsoever, not allowed by the laws of this State, for doing his office, and be thereof convicted, he shall be punished, etc. On the part of the State it is argued that this statute is explicit in its terms and makes the mere taking of an illegal fee a criminal act, without regard to the intent of the recipient. Such undoubtedly is the literal force of the language, but then on the same principle, the officer would be guilty if he took, by mistake or inadvertence, more than the sum coming to him. Nor would the statutory laws, if taken in their exact signification, exclude from their compass an officer who might be laboring under an insane delusion. Manifestly, therefore, the terms of this section are subject to certain practical limitations. This is the case with most statutes couched in comprehensive terms, 1 Nix. Dig. 197. and especially with those which modify or otherwise regulate common law offenses. In such instances the old and the new law are to be construed together; and the former will not be considered to be abolished except so far as the design to produce such effect appears to be clear. In morals it is an evil mind which makes the offense, and this as a general rule, has been at the root of criminal law. The consequence is, that it is not to be intended that the principle is discarded, merely on account of the generality of statutory language. It is highly reasonable to presume that the law makers did not intend to disgrace or punish a person who should do an act under the belief that it was lawful to do it. And it is this presumption that fully justifies the statement of Mr. Bishop, "that a statute will not generally make an act criminal, however broad may be its language, unless the offender's intent concurred with his act."" This doctrine applies with full force to the present case. If the magistrate received the fees in question without any corrupt intent, and under the conviction that they were lawfully his due, I do not think such act was a crime by force of the statute above recited. But it is further argued on the part of the prosecution, that as the fees to which the justice was entitled are fixed by the law, and as he can not set up, as an excuse for his consent his ignorance of the law, his guilty knowledge is undeniable. The argument goes upon the legal maxim ignorantia legis neminem excusat. But this rule, in its application to the law of crimes, is subject, as it is sometimes in respect to civil rights, to certain important exceptions. When the act done is malum in se, or when the law which has been infringed was settled and plain, the maxim, in its rigor, will be applied; but when the law is not settled, or is obscure, and where the guilty intention, being a necessary constituent of the particular offense, is dependent on a knowledge of the law, this rule, if enforced, would be misapplied. To give it any force in such instances, would be to turn it aside from its rational and original purposes, and to convert it into an instrument of injustice. The judgments of the courts have confined it to its proper sphere. Whenever a special mental condition constitutes a part of the offense charged, and such condition depends on the question whether or not the culprit had certain knowledge with respect to matters of law, in every such case it has been declared that the subject of the existence of such knowlege is open to inquiry, as a fact to be proved by the jury. This doctrine has often been applied to the offense of larceny. The criminal intent, which is an essential part of the crime, involves a knowledge that the property belongs to another; but even when all the facts are known to the accused, and so the right to the property is a mere 1 1 Cr. L., sect. 80. |