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In this opinion, TRUMBULL, EDMOND, SMITH, BRAINARD, BALDWIN, GODDARD, and HOSMER, JJ., concurred.

GOULD, J. In expounding penal statutes, it is an established rule, that the construction must be strict, as against the defendant, but liberal in his favor. Recourse may, therefore, be had to the spirit, or reason of the law, for the purpose of exempting from its operation, one who is within the letter of it; but this, generally 'speaking, can not be done, in order to bring within the penalty one who is not within the letter. Hence it results, as a general proposition, to which there have been but very few exceptions, that no man can be subjected to the penalty of a statute, unless he is within both the letter and spirit of it. Now that the defendant would not have been within the spirit, or reason of the statute upon the supposition, that he actually believed a case of necessity, or charity to exist, seems obviously to follow from that fundamental principle, as well of criminal law, as of natural justice, that to render any act criminal, the intention with which it is done, must be so; or in other words, the will must concur with the act.1 Upon this principle it is that idiots, lunatics, and infants under a certain age, are in judgment, incapable of any offence whatever. Hence, also, ignorance or mistake in point of fact (for ignorance of law, I admit, can not be averred), is, in all cases of supposed offence, a sufficient excuse. Thus to use the words of Sir W. Blackstone: "If a man, intending to kill a thief, or house-breaker, in his own house, by mistake, kills one of his own family, this is no criminal action." 2

When, indeed, a civil remedy is sought, for a forcible injury, the intention of the defendant is not regarded except for the purpose of enhancing or mitigating damages. For, in this case, the end proposed by the law is not the punishment of an offender, but the mere reparation of a private loss or injury, to which the plaintiff has been subjected by the act of the defendant; and it is deemed just and reasonable, independently of any question of intent, that he by whose act a civil injury has been occasioned, should ultimately sustain the loss which has accrued rather than another.3 If, therefore, in attempting to defend myself against an unlawful assault in front, I accidently strike and injure an innocent person behind me, I am clearly answerable for the injury in a civil action of trespass.4 But it is equally clear that I can not be subjected criminaliter, for non facit reum nisi mens sit rea.5

From this well known principle of criminal law, viewed in connection with the rule for construing penal statutes already mentioned, it seems impossible to maintain that the direction of the County Court to the

14 Bla. Com. 20, 24.

2 4 Bla. Com. 27.

Raymd. 468

Raym. 468; 2 Black. 896.
Raym., ubi supra.

jury was correct.

The Legislature has not, even by the rule of literal construction, made it penal, of course, for an owner or driver of a carriage, to let or lend it, to be used on Sunday. The offence created by the statute consists in his allowing any person to travel in his carriage on that day, "except from necessity or charity;" that is, except for the purpose, or with a view, of contributing to the relief of necessity, or to some office of charity. If, then, the defendant let his carriage with this view, as must have been the case, if he did it (as he claims that he did), in consequence of his believing the representations made to him, he appears to me to be clearly within the reason of the exception. The instances in which a man with the most innocent intentions might, by a contrary construction, be punished, under a law which he wished most scrupulously to obey, are so numerous and obvious that it is wholly unnecessary to suppose cases, by way of example. If those who traveled in the carriage deceived the defendant, and had no such excuse as the law allows, they are, doubtless, guilty of an offence and punishable for it. But, upon this supposition, the defendant, so far as he contributed to the crime, was but an involuntary instrument.

The objection that this construction will facilitate evasions of the statute, is not, I think, very well founded even in point of fact. The danger of collusion will always be known to the triers; and the probability of it, in any supposable instance, will be open to discussion. But at any rate considerations of this kind ought never to influence a court where, as in the present case, a construction dictated by them would manifestly contravene the spirit of the law, as well as the universal, immutable principles of justice.

I am of opinion that the judgment of the County Court ought to be reversed.

Judgment to be reversed

NOTES.

I. IGNORANCE AND MISTAKE OF LAW.

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§ 154. Ignorance of Law Willful Intent Negatived where there is Mistake. In United States v. Three Railroad Cases,1 a statute prescribed a punishment for willfully removing an official seal from property which had been sealed up by the custom officers. Held, that one who removes such a seal, in ignorance of its character and in the honest execution of a supposed duty in the care and transportation of the property, is not punishable under the statute. HALL, J., delivering the opinion, said: "The information in this case is founded

11 Abb. (U. S.) 196 (1868).

upon section 5 of the act of June, 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 one thousand dollars, 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 shall willfully 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 anything 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 willfully 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 not exceeding one thousand dollars, 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 seal 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 said cars and their contents had become forfeited. The information does not allege that such seals were "willfully" broken, cut, opened or removed; nor does it contain any allegation that the same was done willfully or maliciously, or with any fraudulent, 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 willfully 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 employe 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 employe of the claimants aided or assisted in, or directed or authorized such removal, or in any manner consented thereto.

"Upon these pleadings and the 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 willful; that this was not shown by the evidence in this case, and is negatived 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 section, 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.

"1. The first question thus presented depends mainly on the signification, purpose and effect of the term willfully, as used in the section referred to; and it must be conceded that the question is not free from doubt. The words knowingly, willfully, 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 can not 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 willfully, and something more; and it has therefore been held that in an indictment founded on a statute requiring the act charged to be willfully done in order to make it criminal, charging that the act was done maliciously was sufficient; but when the words willfully and maliciously are both used in the statute creating the offence, 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.1

"The definitions given by our best lexicographers, as well as the authority of legal writers, show that willfully is ordinarily used in a bad sense. Webster, whose definitions are most reliable, gives as the proper definition of willful in its present use, "governed by the will without yielding to reason; obstinate; perverse; inflexible; stubborn; refractory;" and he gives as the definition of willfully, “in a willful 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 willful, within the meaning and intent of the act of Congress.

"It is true, that a person who deliberately does an act which he knows to be unlawful, is generally held to have done it willfully; and the familiar doctrine that a person is conclusively presumed to know the law of the country of his domicil or temporary sojourn, was pressed upon the court for the purpose of bringing this case within the principle of the cases in which this doctrine has been applied. Without considering the question whether the regulations presented by the Secretary of the Treasury, under an act of Congress, are to be considered as laws, it must be observed that in all cases of this kind the intention of the Legislature is to govern; and that when, as in this case, the act must be willfully done to make it criminal, it can hardly be supposed that the Legislature intended to declare an act committed without any illegal or improper motive, and under the honest belief that it was entirely right and proper, to be a felony punishable, in the discretion of the court, by a large pecuniary fine, and five years' imprisonment. Indeed, under such proof of the absence of all criminal or improper intent or feeling, eminent judges have directed acquittals in cases where the punishment authorized was much less severe.

"In the case of United States v. Hart,2 Mr. Justice Washington held that a constable who stopped and detained the mail coach, by arresting the driver,

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