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plaintiff in error knew the facts alleged, that Matilda was a slave, and the property of L. Larkin, or of any other person; and such is not the legal inference in a State where the Constitution declares that all are born free and equal, and that there shall be neither slavery nor involuntary servitude within its limits, except as a punishment for the commission of crimes. On the contrary, the presumption is in favor of freedom. The scienter, or knowledge of the plaintiff in error, of this material fact, was an ingredient necessary to constitute his guilt. This knowledge should have been averred in the indictment and proved on the trial; for, without such knowledge, the act charged as a crime, was innocent in its character. We know of no case where positive action is held criminal, unless the intention accompanies the act, either expressly or necessarily inferred from the act itself. Ignorantia facti doth excuse, for such an ignorance many times, makes the act itself morally involuntary.' It is true that the statute upon which the indictment is founded, omits the scienter, and the indictment covers all the facts enumerated in that statute. But this is not sufficient; it can not be assumed that an act, while independent of positive enactment, involves no moral wrong, nay, an act that in many cases would be highly praiseworthy, should be made grievously criminal, when performed in total unconsciousness of the facts that infect it with crime. This court has determined differently. In the case of Anderson v. State, the plaintiff in error was indicted for uttering and publishing a forged certificate of deposit, without averring his knowledge of such forgery. The statute under which this indictment was found does not, in express terms, make this knowledge a constituent of the crime. Nevertheless, the court held that the criminality could not exist without the knowledge, and that an indictment that did not aver it was defective. That case runs upon all fours with this, and the further investigation of the principles upon which it is based, confirms the court in the conviction it is correct. The judgment must be reversed for this cause, and it thus becomes unnecessary to decide upon the other points so laboriously argued for the plaintiff in error, and of a character too important, in their bearing upon the whole country, to be adjudicated upon without necessity."

In State v. Davis,3 a statute provided that "every person not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to another who shall have committed any offence or been accessory before the fact to the commission of any offense, who shall be convicted of knowingly harboring or relieving such other person, with intent that he shall escape or avoid detection, arrest, trial or punishment, shall be imprisoned." * * It was held that to constitute a violation of this statute the person harboring or relieving must know that such other person has committed an offense, and must intend to shield such other person from the law.

DURFEE, C. J. "This is an indictment for the violation of Public Statute of Rhode Island, which reads as follows, to wit: 'Every person not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to another who shall have committed.any offense, or been accessory before the fact to the commission of any offense, who shall be convicted of knowingly harboring or relieving such other person, with intent that he shall escape or avoid detection, arrest, trial or punishment, shall

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be imprisoned not exceeding five years, or be fined not exceeding one thousand dollars.' In the indictment, found in the Court of Common Pleas, the offense was charged in manner following, to wit: That at Newport on the 15th day of March, 1883, the defendants 'did then and there knowingly harbor and relieve another, to wit: one George H. Rounds with the intent that he, the said Rounds should then and there avoid detection, arrest, trial, and punishment, he the said George H. Rounds, having then and there committed an offense, to wit: the offense of entering a dwelling-house in the day time with intent to commit larceny therein, the said Thomas T. Davis, and the said George T. Davis, and the said Patrick White not then and there standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the said George H. Rounds.' The defendants moved the court below to quash the indictment for insufficiency and the court overruled the motion. The defendant excepted, and now, after verdict of guilty against George T. Davis, he brings the cause to this court for revision. The defendant contends that the indictment is defective in that it does not allege that the defendants harbored and relieved Rounds knowing that he had committed the crime which he is alleged to have committed, such knowledge being a necessary ingredient of the offense under the statute. If the knowledge be a necessary ingredient, we think the knowledge should have been alleged with certainty and that the indictment is bad for want of the allegation. The attorney-general contends that the knowledge is not necessary because, if it be necessary, a person may harbor or relieve another with impunity, so long as he is ignorant of the particular offense which the other has committed, though he knows perfectly well that he has committed an offense and is fleeing from arrest, and though his purpose in harboring or relieving him is to aid his escape. If the knowledge be necessary, argues the attorney-general, he may safely harbor and hide a convict fleeing from prison in his prison garb, with the officers of the law in hot pursuit, if only he be ignorant of the particular offense which the fugitive has committed. The argument against the construction contended for by the defendant is certainly very cogent. But on the other hand, if the statute is not to be so construed, the word 'knowingly' in the statute is superfluous, having no meaning which is not necessarily implied without it. Moreover, if the statute is not to be so construed, a person who harbors another, knowing that he has committed some petty misdemeanor, and simply intending to help him escape arrest for it, may be convicted under an indictment in which the principal offense alleged is murder or some other heinous crime, knowing of which he would have recoiled from harboring the criminal. These are views which strike the mind on simply reading the statute without reference to its history or antecedents. We think, however, that the statute can not be fairly construed without reverting to the common-law offense which was superseded by it, and tracing the statute to its present form. Evidently the statutory offense was intended to take the place of the common-law offense of being an accessory after the fact. At common law an accessory after the fact is one who, knowing a felony has been committed by another, receives, relieves, comforts, or assists the felon. To constitute an accessory after the fact,' it is said, three things are requisite. The felony must be completed; he must know that the felon is guilty; and he must receive, relieve, comfort, or assist him.'1 These

1 1 Arch. Crim. Prac. & Plead. (8th ed.) *17, note 2.

being requisites of the offense it was, of course, necessary to allege them in the indictment; and so are the forms or precedents. By the old common law the principal and the accessory were liable to the same punishment, and no man could be tried as accessory after the fact till after the principal felon was convicted. We do not find any statute of the State changing this common law until A. D. 1798. Section 20 of 'An act to reform the penal laws,' contained in the digest of 1798, provides 'That every person who shall knowingly receive, harbor, conceal, maintain, assist, or relieve any person or persons who have committed any of the crimes aforesaid, or hereafter mentioned, although the principal offender can not be taken so as to be prosecuted, is and shall be considered an accessory after the fact, and shall be fined not exceeding five hundred dollars and be imprisoned not exceeding two years.' The section seems to have been intended to change the common law in three particulars, namely: first, to make it extend to the harboring of others besides felons; second, to mitigate or limit the punishment; and third, to make the accessory liable to trial and punishment, although the principal offender can not be taken so as to be prosecuted.' We see no reason to think that any other change was contemplated. The offender is denominated an accessory after the fact. The offense, therefore, subject to the alterations effected by the statute, ought to be deemed to have the character of the common-law offense. If so, then knowledge on the part of the accessory, not only that the principal offence had been committed, but also that the person harbored had committed it, was a necessary ingredient in the accessory offense. We think there can be no doubt that the word 'knowingly,' as used in the section, was intended to have that meaning. The section was re-enacted without change in the digest of 1822. In the digest of 1844 the section was altered, and it appeared there, as it has appeared in all later revisions, in its present form. The section in its present form increases the punishment, but in another respect it mitigates the severity of the law. Previously any person, except a wife, however closely related to the criminal, exposed himself to punishment as an accessory after the fact by knowingly harboring him. The section in its present form exempts from its operation the husband or wife of the principal offender, and certain others nearly related to him. It also expresses what was probably before implied, that the guilt is incurred only when there is an intent to shield the principal offender from the law. These are the only alterations worthy of note which are apparent. Now the question is whether by reason of these alterations the word 'knowingly' has acquired a different meaning from what it previously had. It seems to us that we must assume that the old word has the old meaning until it is clearly apparent that it was meant to have another. We do not find any sufficient indication that a different meaning was intended. The Legislature has been very explicit in the changes above noted, and we can not suppose, if so essential a change in the character of the offense, as that which the attorneygeneral contends for, had been intended, that the Legislature would have left it so completely to inference or conjecture. We think, therefore, that the indictment is bad in that it does not allege with the certainty required by the rules of criminal pleading the offense which, as we construe the statute, was intended to be punished by it.

"Exceptions sustained and indictment quashed."

1 Zb. 75-76.

§ 197. Incest.-So a man having connection with his daughter, in ignorance of the relation between them, can not be guilty of incest.1

§ 198. Larceny. - Taking property by mistake is not larceny: 2 as where a person takes the property of another thinking it is his own.3

In R. v. Leppard, ERLE, C. J., said to the jury: "If the prisoner sold the sheep without any authority and without any reason to suppose that he had authority to sell them, then he is guilty upon this indictment; otherwise not Had he any reason to suppose that he had such authority." The verdict was not guilty.

so.

In People v. Carabin,3 the prisoner was indicted for stealing a steer. The court charged the jury that though he killed it believing it to be his own, yet when he appropriated it to his own use, it was evidence of a felonious intent. On appeal this was held erroneous. "The charge," said the court above, "is liable to several objections. It assumes as a fact that the defendant did appropriate the steer-which was for the jury-and then the instruction deduces from the mere fact of appropriation the felonious intent and directs a finding accordingly. In other words the charge makes the mere fact of the conversion of the property by the defendant, conclusive proof of the defendant's guilt. This is not the law. The jury are the judges of the facts of the taking and carrying away of the property, the title of the property and of the intent with which the property was taken and carried away."

§ 199. Larceny-Property Seized Under Execution. - In State v. De Witt, the prisoner was indicted for feloniously stealing cattle which had been levied on by the sheriff by virtue of an execution against the prisoner, and committed to the custody of a third party for safe keeping. A judgment of conviction was reversed by the Supreme Court on the ground that the State was bound to show affirmatively that the defendant knew of the execution and seizure of the cattle by the sheriff so as to show a felonious intent in the taking. "The defendant," said Bay, J., “was indicted in the Linn Circuit Court for feloniously stealing, taking and carrying away two steers, alleged in one count to be the property of one T. W. Rooker; in another count to be the property of P. W. Banning; and in a third count the property of one J. E. Quick. To this indictment the defendant filed a plea of not guilty, and at the May term, 1862, was tried and convicted, and his punishment assessed at two years' imprisonment in the penitentiary.

"It appears from the evidence, as preserved in the bill of exceptions, that one Harris had obtained in said court a judgment for about one hundred and ninety dollars against said DeWitt, upon which an execution was issued directed to the sheriff of said county, this execution was placed in the hands of Banning, a deputy sheriff, about the 16th of August, 1860, and he levied it upon the

1 Williams v. State, 2 Ind. 439 (1850). 2 Gardiner v. State, 33 Tex. 682 (1870); Kay v. State, 40 Tex. 30 (1874); Varas v. State, 41 Tex. 527 (1874); Smith v. State, 42 Tex. 444 (1875); Hall v. State, 34 Ga. 208 (1865); Neely v. State, 8 Tex. (App.) 64 (1880); Heskew v. State, 14 Tex. (App.) 606 (1883); Camplin v. State, 1 Tex. (App.) 109 (1876); Miles v. State, Id. 510 (1877).

3 McMullen v. State, 53 Ala. 531 (1875); Bonham v. State, 65 Ala. 456 (1880); Rountree v. State, 58 Ala. 383 (1877); R. v. Knight, 2 East's P. C. 510; State v. Matthews, 20 Mo. 55.

44 F. & F. 51 (1864).

5 14 Cal. 430 (1859).

632 Mo. 571 (1862).

cattle, the subject of the larceny, on the 6th or 7th of September following, as the property of said DeWitt, and placed said cattle in the custody of said Quick for safe keeping. Quick placed them in his pasture, where they remained about two weeks. They were taken from this pasture in the night time, and there was proof tending to show that DeWitt was implicated in the taking. Twenty-six instructions were asked and eighteen given-enough to have confounded any jury of ordinary intelligence. This practice of giving a multiplicity of instructions in cases involving but one or two simple propositions of law, can not be too strongly condemned. Instead of aiding the jury in their investigation, its only tendency is to confuse and embarrass them.

"In the view taken of this case, it is unnecessary to pass upon those instructions, for upon a careful examination of the evidence we are of the opinion that it does not support the finding of the jury. At the time of the levy of the execution, the cattle belonged to the defendant, who afterwards found them in the pasture of Quick, and no evidence was given to show that defendant had any knowledge whatever as to the character of Quick's possession. It was not shown upon the trial that defendant was present when the levy was made, or knew that the cattle had been seized by the sheriff by authority of an execution issued against him. No knowledge of the existence of any execution against him was shown. The State should have shown such knowledge affirmatively for without it it is impossible to fix upon the defendant a criminal or felonious intent. Judgment reversed and case remanded for new trial; the other iudges concurring.

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$ 200. Lewdness. To support an indictment for "lewdly and lasciviously", cohabiting together, an evil intent must be shown, it is not sufficient to infer it from their cohabitation under an honest though mistaken belief that they were lawfully married to each other.1

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$201. Liquor Laws-Selling Liquor by Mistake. Under such laws a person is not punishable for selling what he believes is not intoxicating liquor.

§ 202. Liquor Laws - "Person of Intemperate Habits."-Where a statute punishes the selling of liquor to one of "known intemperate habits" the fact that the intemperate habits of the vendee were known to the defendant must be shown in order to support a conviction.3

§ 203. Liquor Laws - Selling Liquor to Minor.-A seller of intoxicating liquor to a minor who believes at the time that he is of age, is not guilty of the statutory offense of selling liquor to minors, or permitting him to play bill. iards.5

In State v. Kalb, PERKINS, J., said: "Prosecution for selling liquor to a minor. Acquittal. On the trial, the court permitted the defendant to prove that James Welborn, the minor to whom the liquor was sold, had the personal appearance of a

1 Com. v. Munson, 127 Mass. 459 (1879). 2 Farrell v. State, 32 Ohio St. 456 (1877); Presler v. State, 13 Tex. (App.) 95 (1882). 3 Smith v. State, 55 Ala. 1 (1876); Crabtree v. State, 30 Ohio St. 382 (1876).

4 Faulks v. People, 39 Mich. 200 (1878).

Farbach v. State, 24 Ind. 77 (1865); Goetz
v. State, 41 Ind. 162 (1872); Miller v. State,
3 Ohio St. 475 (1854); Adler v. State, 55 Ala.
16 (1876).

5 Stern v. State, 53 Ga. 229 (1874).
14 Ind. 403 (1860).

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