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eons on his farm belonging to a neighbor. The justices convicted, on the ground that the appellant was not justified by law in killing the pigeons, and, therefore, that the killing was unlawful. In other words, they held that the only meaning of "unlawfully" in the statute was "without legal justification."! The court set aside the conviction. "I think that the statute was not intended to apply to a case in which there was no guilty mind, and where the act was done by a person under the honest belief that he was exercising a right." MELLOR, J. In Buckmaster v. Reynolds,1an information was laid for unlawfully, by a certain contrivance, attempting to obstruct or prevent the purposes of an election at a vestry. The evidence was that that defendant did obstruct the election because he forced himself and others into the room before eight o'clock, believing that eight o'clock was passed. The question asked was, whether an intentional obstruction by actual violence is an offense, etc. This question the court answered in the affirmative, so that there, as here, the defendant had done the prohibited acts. But ERLE, J., continued: "I accompany this statement (i.e., the answer to the question), by a statement that upon the facts set forth I am unable to see that the magistrate has come to a wrong conclusion. A man can not be said to be guilty of a delicit unless to some extent his mind goes with the act. Here it seems that the respondent acted in the belief that he had a right to enter the room, and that he had no intention to do a wrongful act." In Regina v. Hibbert,2 the prisoner was indicted under the section now in question. The girl, who lived with her father and mother, left her home in company with another girl to go to a Sunday-school. The prisoner met the two girls and induced them to go to Manchester. At Manchester, he took the girl to a public house and there seduced the girl in question, who was under sixteen. The prisoner made no inquiry and did not know who the girl was, or whether she had a father or mother living or not, but he had no reason to, and did not believe that she was a girl of the town. The jury found the prisoner guilty, and LUSH, J,, reserved the case. In the Court of Criminal Appeal, BOVILL, C. J., CHANNELL and PIGOTT, BB., BYLES and LUSH, JJ., quashed the conviction. BOVILL, C. J.: "In the present case there is no statement of any finding of fact that the prisoner knew, or had reason to believe, that the girl was under the lawful care or charge of her father or mother, or any other person. In the absence of any finding of fact on this point, the conviction can not be supported." This case was founded on Regina v. Green,3 before MARTIN, B. The girl was under fourteen, and lived with her father, a fisherman, at Southend. The prisoners saw her in the street, by herself, and induced her to go with them. They took her to a lonely house, and there Green had criminal intercourse with her. MARTIN, B., directed an acquittal: "There must," he said, "be a taking out of the possession of the father. Here the prisoners picked up the girl in the street, and for anything that appeared, they might not have known that the girl had a father. The girl was not taken out of the possession of any one. The prisoners, no doubt, had done a very immoral act, but the question was, whether they had committed an illegal act. The criminal law ought not to be strained to meet a case which did not come within it. The act of the prisoners was scandalous, but it was not any legal offense." In each of these cases the girl was surely in the legal possession of her father. The fact of her being in the street at the time could not possibly prevent her from being in the legal posses

1 13 C. B. (N. s.) 62.

2 L. R. 10. C. 184.

33 F. & F. 274.

sion of her father. Everything, therefore, prohibited, was done by the pris oner in fact. But in each case the ignorance of facts was heid to prevent the case from being the crime to be punished. In Regina v. Tinkler,1 in a case under this section, COCKBURN, C. J., charged the jury thus: "It was clear the prisoner had no right to act as he had done in taking the child out of Mrs. Barnes' custody. But inasmuch as no improper motive was suggested on the part of the prosecution, it might very well be concluded that the prisoner wished the child to live with him, and that he meant to discharge the promise which he alleged he had made to her father, and that he did not suppose he was breaking the laws when he took the child away. This being a criminal prosecution, if the jury should take this view of the case, and be of opinion that the prisoner honestly believed that he had a right to the custody of the child, then, although the prisoner was not legally justified, he would be entitled to an acquittal." The jury found the prisoner not guilty. In Regina v. Sleep,2 the prisoner had possession of government stores, some of which were marked with the broad arrow. The jury, in answer to a question whether the prisoner knew that the copper, or any part of it, was marked, answered, "We have not sufficient evidence before us to show that he knew it." The Court of Criminal Appeal held that the prisoner could not be convicted. COCKBURN, C. J.: "Actus non reum facit, nisi mens sit rea is the foundation of all criminal procedure. The ordinary principle that there must be a guilty mind to constitute a guilty act applies to this case, and must be imported in this statute, as it was held in Regina v. Cohen,3 where this conclusion of the law was stated by HILL, J., with his usual clearness and power. It is true that the statute says nothing about knowledge, but this must be imported into the statute." POLLOCK, C. B., MARTIN, B., CROMPTON and WILLES, JJ., agreed. In the case of Regina v. Robins,*and Regina v. Olifler,3 there was hardly such evidence as was given in this case, as to the prisoner being deceived as to the age of the girl, and having reasonable ground to believe the deception, and there certainly were no findings by the jury equivalent to the findings in this case. In Regina v. Forbes and Webb, although the policeman was in plain clothes, the prisoner had strong ground to suspect, if not to believe, that he was a policeman, for the case states that they repeatedly called out to rescue the boy and pitch into the constable. Upon all the cases, I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or mens rea. Then comes the question, what is the true meaning of the phrase? I do not doubt that it exists where the prisoner knowingly does acts which would constitute a crime if the result were as he anticipated, but in which the result may not improbably end by bringing the offense within a more serious class of crime. As if a man strikes with a'dangerous weapon, with intent to do grievous bodily harm, and kills, the result makes the crime murder. The prisoner has run the risk. So, if a person do the prohibited acts, without caring to consider what the truth is as to facts-as if a prisoner were to abduct a girl under sixteen without caring to consider whether she was in truth under sixteen, he runs the risk; so, if he, without abduction, defiles a girl who is in fact under ten years old, with a belief that she is between ten and twelve. If the facts were as he believed, he would be committing the lesser crime. Then he runs the risk of his crime resulting in the greater crime. It is clear that ig

11 F. & F. 513.

2 8 Cox Cr. C. 472.

$8 Cox Cr. C. 41.

42 C. & K. 456.

6 10 Cox Cr. C. 402.

10 Cox Cr. C. 362.

norance of the law does not excuse.

It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present to the prisener's mind, and which he has reasonable ground to believe, and does believe, to be the facts, would, if true, make his acts no criminal offense at all.

It may be true to say that the meaning of the word "unlawfully" is that the prohibited acts be done without justification or excuse. I, of course, agree that if there be a legal justification there can be no crime; but I come to the conclusion that a mistake of facts, on reasonable grounds, to the extent that if the facts were as believed, the acts of the prisoner would make him guilty of no criminal offense at all, is an excuse, and that such excuse is implied in every criminal charge and every criminal enactment in England. I agree with Lord KENYON that "such is our law," and with COCKBURN, C. J., that "such is the foundation of all criminal procedure."

§ 182. Abduction. Thus where a statute punishes the taking a girl under sixteen out of the possession of her father, a person to be convicted must know or have reason to know that the girl whom he abducts is in the possession and care of her father.1

In R. v. Tinkler,2 it was held that where on an indictment for abducting a child it appeared that the prisoner honestly believed that he had the right to the custody of the child he was not guilty. The prisoner was indicted for taking one Sarah Thompson out of the possession and against the will of Jane Barnes, her lawful guardian. It appeared that the prisoner, who was a widower, had married the elder sister of Sarah Thompson, and up to the time of his wife's death, Sarah Thompson, who was an orphan, had lived in the prisoner's house. On that occasion, Mary Johnson, another married sister of Sarah Thompson, caused her to be placed under the care of Jane Barnes.

No improper motive was alleged against the prisoner, he having asserted, as his reason for taking the child away, that he had promised her father on his death-bed, to take care of her. The CHIEF JUSTICE told the jury that it was clear the prisoner had no right to act as he had done in taking the child out of Mrs. Barnes' custody. But inasmuch as no improper motive was suggested on the part of the prosecution, it might very well be concluded, that the prisoner wished the child to live with him, and that he meant to discharge the promise which he alleged he had made to her father, and that he did not suppose he was breaking the law when he took the child away. This being a criminal prosecution, if the jury should take this view of the case, and be of opinion that the prisoner honestly believed that he had a right to the custody of the child, then, although the prisoner was not legally justified, he would be entitled to an acquittal upon this charge.

§ 183. Adultery. —A man who in good faith marries a woman whose husband has remained absent for more than seven years, and is believed by both to be dead, is not guilty of adultery, if it turns out that the husband is living.❜

§ 184. Arson. -To convict of burning a house "with intent to injure the insurance company," it must be shown that the prisoner had knowledge of the insurance.

1 R. v. Hibbert, 11 Cox, 246 (1869).

21 F. & F. 513 (1859).

Com. v. Thompson, 6 Allen, 591 (1863).

4 Martin v. State, 28 Ala. 71 (1856); and that it was insured against fire. Martin v. State, 29 Ala. 30 (1856).

§ 185. Assault. So an assault made under a mistake of fact may be excused. As a railroad official who ejects a person from a depot believing that he is violating a rule of the company,1 or a police officer who arrests a person whom he believes to be drunk.2

In State v. McDonald, the court in reversing the conviction said: "The defendant, a car driver and conductor on the Lindell Railway, was convicted in the Court of Criminal Correction of an assault and battery committed upon the person of Oscar Wielns. The only question raised by the appeal is whether when a passenger on a street car has in fact paid his fare, the conductor is justified in forcibly ejecting him from the car because he, the conductor, honestly believes that the passenger has not paid his fare, but persistently refuses so to do.

question that the pasWhen a passenger on

"If this were a civil action for damages, there can be no senger, in the case stated, would be entitled to recover. a street car has dropped his fare in the box provided and placed for that purpose, he has an absolute right to remain on the car, in an orderly manner, until it reaches his destination on the line of the railway. If the conductor, nevertheless, assuming that the fare is not paid, violates the passenger's right by putting him off the car, he manifestly does so at his peril, in so far as any question of indemnification may arise. If one willfully destroys my property, honestly believing it to be his own, it will be no defence against my claim for indemnity, to say that he made a mistake about the ownership. The law protects me in my property against intentional wrong-doers. If in such a case either party must suffer, it should, by every rule of fairness and common sense, be he who made the mistake, rather than the other. A peaceable citizen deprived of his rights in a public conveyance and subjected to gross indignity besides, is not to be denied redress because the servant in charge was not sufficiently observant to know the true state of the case. The learned judge who heard this cause in the court below evidently recognized these general principles, but he erred in holding them applicable to a criminal prosecution. There is here no question of indemnity to the person injured. The only question is, has the defendant committed a crime against the peace and dignity of the State.

"Crime can not exist without a criminal intent. A man at midnight discovers an intruder on his premises, under circumstances which furnish reasonable cause to apprehend that a felony is in progress, or about to be perpetrated. He kills the supposed burglar in the honest belief that nothing less will save his own life or property. It turns out that the intruder was innocent of any criminal purpose; yet his slayer has committed no crime, either in morals or in law, deserving punishment. The criminal intent was wanting. A person passes counterfeit money, being ignorant of its character, and honestly believing it to be genuine; the one who receives it may recover for the wrong done him, notwithstanding the innocent mistake of the passer. And yet, an indictment against the passer of the money would fail, because he was guilty of no criminal intent. In the case before us, according to the facts stated, the defendant honestly believed that he was simply discharging his duty in putting off a passenger who refused to pay his fare, and therefore, in so doing, he committed no crime. The court erred in giving instructions in support of a contrary view,

1 Com. v. Power, 7 Metc. 596 (1844).

2 Com. v. Presby, 14 Gray, 65 (1859); State

v. McNinch, 90 N. C. 695 (1884).

37 Mo. (App.) 510 (1878).

and in refusing instructions prayed for by the defendant which were in harmony with the principles herein declared.

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"The judgment is reversed and the cause remanded. All the judges concur.' In State v. McNinch,1a police officer in arresting one for violating a city ordinance, was indicted for an assault. The prosecutor alleged the force used was excessive, and the judge charged the jury if such was the case, the defendant was guilty, but failed to call their attention to the good faith with which the officer claimed to have acted. This was held, error. The amount of force it was said necessary to make the arrest is left to the judgment of the officer when acting within the scope of his general powers and actuated by no ill-will or malice. The defendants McNinch and Healy, police officers of the city of Charlotte, were charged with assaulting the prosecutor, Robert C. Mason.

The prosecutor testified that while he was in the back-yard in rear of Snider's bar-room the defendant Healy came up and took him by the arm and told witness to go with him, and witness refused, and asked for his authority. Healy then jerked him and carried him in the bar-room, and struck at him with a stick and also struck him under the eye with his fist. Witness was then taken to the guard-house. The defendant McNinch was present. Witness again resisted, when Healy put him in the guard-house and jerked him down on the floor, and locked him up. He was kept in confinement a half hour or more, and then released on bail for his appearance before the mayor of the city. Witness further testified that he was not drunk, was making no noise, and was not in any manner exposing his person; but that he was sick and went into the yard because it was not so warm there as in the house; and that McNinch came out into the yard about the time Healy struck him. He does not think he told the officers he was sick. There was also evidence to the effect that defendants were pulling Mason and trying to get him along, and that he was advised to go with the officers; that Mason was not drunk; his nose was bleeding. The city ordinance against drunkenness was put in evidence, and Healy testified that having received an order from McNinch, his superior officer, he went to the back-yard and found the prosecutor there apparently drunk and asleep; that the prosecutor after he was roused up caught the witness by the throat and choked him, and the witness struck him a blow on the nose; did not strike or offer to strike with the stick he had at the time. The prosecutor was then taken to the guard-house, and upon his resisting, the witness pushed him in the guard-house, but did not jerk him upon the floor. Another witness testified that the prosecutor was cursing and making a considerable noise in the yard, and McNinch stated that in consequence of this he directed Healy to go and arrest him. There was also testimony tending to show that Mason was indecent by exposing his person, and that on one side of the yard was a hotel and on the other a boarding-house-some of the windows of each overlooking the yard.

Several special instructions were asked by defendants, but they are not necessary to an understanding of the point decided. The opinion below sets out that portion of the judge's charge of which the defendants complained. Verdict of guilty; judgment; appeal by defendants.

SMITH, C. J. "The defendants are charged with assaulting and beating the person of one Robert C. Mason, and for arresting and maltreating him while in their custody. The defendants in support of their plea of not guilty, sought

1 90 N. C. 695 (1884).

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