The statute

man over twenty-one years of age. This is complained of as error. prohibits the sale of liquor to a minor, and authorizes the sale to adults. It does not prescribe the mode by which the liquor seller is to determine the question of age, and it may often be a difficult one. Is the seller to ask every purchaser his age? Very well. Suppose the answer states it falsely, and the seller is thus led to sell to a minor? Again, is the seller to trace out the parents of every person, and inquire of them. Suppose they give false information, and thereby liquor is sold to a minor. The State is not the party giving the false information, and hence, would not be estopped to prove, on the trial, the true age of the person to whom the liquor was sold. What rule must govern on this point? We think it must be that of belief. We think the offense consists in selling to a minor, not believing, or having reason to believe, him an adult. Prima facie, the seller would be presumed to know, under the law, whether the person he sold to was a minor or an adult; and in a case of doubt he would, if he sold, take the hazard. But we think he might be permitted to show, on a prosecution for selling to a minor, that the person was a stranger to him, and that his personal appearance would lead any person of common observation to believe him, beyond doubt, an adult- that he represented himself as such, etc. So he might prove that a person whom he did know (but not his age) was treated by his parents, or friends, and the community, as an adult. Such evidence would be for the jury to consider. Per curiam. The judgment is affirmed."

In Rineman v. State,1 FRAZER, J., delivering the opinion of the court says: "This is an indictment for selling liquor to a minor. The court charged the jury that it was a question of fact, and not of opinion, and that if the defendant was deceived and imposed upon as to the age of the buyer, that circumstance would go in mitigation of the punishment, but could not justify an accquittal. The law has been held otherwise by this court, in several cases, and we think correctly. The question is, at least, not so clear as to justify us now in disturbing that line of decisions. It is true that the statute does not, in terms, create the exception, but it is, we think, the better opinion that it was not intended by the act to make the vendor liable criminally, in cases where, upon the exercise of every reasonable caution, he should yet be imposed upon as to the age of the buyer, and should sell to him in perfect good faith. But this rule must not be so loosely applied as to open the way to evasions of the law. It is more important that the young should be protected from temptation, than that those who have just reached their majority should be able to purchase with facility; and, therefore, the vendor should be held to the exercise of great⚫ care and caution. The judgment is reversed, and the cause remanded for a new trial."

In Brown v. State, a similar case, ELLIOTT, C. J., delivering the opinion of the court said: "William F. Little, the prosecuting witness and person to whom the intoxicating liquor is alleged to have been sold, testified he would be twenty-one years of age on the 29th day of July then next. The defendant, upon cross-examination, asked the witness whether he wore his beard at the time he purchased the liquors testified to by him, as long as it was at the time of the trial; at the same time calling attention to the fact that the witness' beard was thick set and long. The witness answered that 'he did.' The defendant then asked the witness whether he had not voted for the last two years?'

1 24 Ind. 80 (1865).

2 24 Ind. 113 (1865).

But the court refused to permit the witness to answer the question, to which the defendant excepted. This was error. We think the question was a proper one, and the fact intended to be elicited by it pertinent and legitimate for two purposes. First. One of the material facts necessary to be shown, to justify a conviction of the defendant, was that Little was under the age of twenty-one years at the time he purchased the liquor. He had sworn to that on his examination in chief, but his statement so made was not conclusive on the defendant; he had the right to rebut it or discredit it, and it was certainly legitimate for him to test its correctness on cross-examination, by such questions as might tend to discredit the statement, or show that it was not true in fact. We do not say that an affirmative answer to the question would necessarily have had that effect, but that it was legitimate evidence as tending to rebut the statement of the witness as to his age, we think it very clear.

"It was proper for another reason. The defendant had the right to show in defence that he sold liquor to Little in good faith, believing at the time that he was over twenty-one years of age; and if Little had claimed and exercised the right to vote at the elections for two years prior to the time of the sale of the liquor to him, and that fact was known to the defendant at the time of the sale it would certainly be a strong circumstance to show that the defendant did, in good faith, believe him to be of age at the time of the sale. The question asked did not go to the point that the defendant knew that Little had voted, but it was legitimate as laying the proper foundation for another question on that subject or the proof of his knowledge of the fact by other evidence. The judgment is reversed, and the cause remanded for a new trial.”

§ 204. Malicious Mischief - Administering Poison to Horses.-In R. v. Mogg1 the prisoner was indicted for attempting to kill horses. He had mixed sulphuric acid with their corn, and it was in the evidence that he had done so before. Mr. Justice PARK left it to the jury whether he administered the poison with a criminal intent or under the impression that it would improve the appearance of the horses, for in the latter case he ought to be acquitted. The jury acquitted him.

§ 205. Manslaughter. Where the parents of a sick child, in the erroneous belief that prayer would cure him, neglected to use medicines, whereby he died, they were held not guilty of manslaughter.2

§ 206. Murder. As to the non-liability of one who kills another under a mistaken notion that he is being attacked or his life is in danger. See Volume I., of this series, SELF-DEFENCE.

§ 206a. Mutineering-Mistake as to Condition of Vessel.-In United States v. Ashton, it was held that on an indictment for an endeavor to commit a revolt against section 12 of the Crimes Act of 1790, it was a sufficient defence of the parties accused, that the combination charged, as an endeavor, was to compel the master to return into port for the unseaworthiness of the vessel, if they act bona fide and the vessel was actually unseaworthy. So if they act bona fide and upon reasonable grounds and apparent unseaworthiness, and it is

14 C. & P. 364 (1830).

2 R. v. Wagstaffe, 10 Cox, 530 (1868)

32 Sumn. 13 (1834).

4 ch. 36.

doubtful whether the vessel be unseaworthy or not. But if the vessel, in such case, be clearly seaworthy, it is no defence.

Indictment against the defendants for an endeavor to commit a revolt on board the ship Merrimack, of Boston, on the high seas. Plea, not guilty.、

At the trial it appeared, the ship sailed from Boston on Saturday, 23d of August, 1834, on a voyage to Rio Janeiro, under the command of Captain Eldridge. She was then in a leaky condition, and some efforts had been made by the captain to conceal the extent of the leakage from the crew at the time of their shipment and coming on board. The ship was twenty-nine years old. The crew, on discovering the leak, in going out of port, expressed a wish to the captain to return and have repairs made. The captain declined; but said if the leak increased he would return. On Wednesday, the 27th of August, the vessel encountered a gale and strained very much; and the crew were up all the night pumping, and were much exhausted. The gale still continued, with every appearance of a continuance. The crew then conversed together, and went to the captain, and requested him to return to Boston to repair; and expressed a firm belief that the ship was unseaworthy, and that they were all in imminent danger of their lives. The captain declined; but proposed, that they should keep on, and, if necessary, he would stop at the Western Islands for repairs. The crew insisted, that he ought to return back to Boston, and that the hazard of proceeding on the voyage was imminent. And then finding that the captain persisted in going on the voyage, declaring that he thought the vessel seaworthy, they refused to do duty any further, and seceded, and remained below several hours, during which time the gale increased, and the ship was in great danger. The captain, at length, in order to induce the crew to return to duty, agreed to return to Boston; and accordingly he wore ship and returned to Boston, where he arrived on the ninth day after her departure. The crew at all other times during the voyage and in all other respects conducted themselves unexceptionably.

There was a good deal of evidence, at the trial, as to the seaworthiness of the ship. The chief mate swore, that in his opinion she was seaworthy. The second mate swore she was not. And there was the testimony of a number of highly respectable witnesses, who had examined the ship before her departure, and who affirmed that she was old and rotten, and, in very bad condition, and wholly unseaworthy in all respects; and in their testimony they entered into the particulars of her defects. On the other hand, one of the owners testified, that she was bought in July, 1834, for $2,500, and that about $1,000 had been laid out upon her in repairs; and that the owners believed her seaworthy for the voyage; and policies of insurance had been underwritten on her cargo for the voyage, after an examination made of her by one of the officers of one of the insurance companies in Boston; that after some slight repairs she had again gone to sea with the same captain and a new crew, who made no objection; and that before her last departure she had been surveyed and pronounced to be seaworthy. No imputation or suggestion of fraud or misconduct was cast upon the owners. On the contrary, the counsel for the defendants expressly disclaimed any ground of this sort.

In the course of the trial Dunlap, District Attorney, objected to the admission of any evidence to establish the unseaworthiness of the ship as irrelevant to the matter in issue, upon the ground, that unseaworthiness would constitute no defence to the charge in the indictment. But the court, after hearing

Shipley, and Moore for the defendants, overruled the objection, and admitted the evidence.

Upon the posture of the facts, as diclosed in the evidence, a doubt having been suggested by the court, whether the evidence supported the indictment the case was briefly argued to the court by Dunlap for the United States.

STORY, J. I do not think that the act for the government and regulation of seamen in the merchants' service 1 has any bearing on the present case. The third section of that act merely provides for the case, where the mate and a majority of the crew of a vessel bound on a foreign voyage, after the voyage is begun and before the vessel shall have left the land, shall discover the vessel to be too leaky or otherwise unfit to proceed on the voyage; and under such circumstances it makes it the duty of the master to return to port. It does not, in the slightest manner, trench upon the general rights and duties of the seamen under the maritime law, but merely imposes an absolute duty on the master in the case specified. All other cases and circumstances remain, therefore, as they were before, to be governed by the general principles of law. In the present case the combination to resist the authority of the master is clearly established; and unless the seamen were, by the circumstances, justified in compelling the master to return home, the offense charged in the indictment is fully made out, and the onus is on the seamen to establish the justification. If the ship was at the time clearly seaworthy and fit for the voyage, whether the seamen acted by fraud, or by mistake, or upon a fair but false judgment of the facts, it seems to me the offense was committed. If, on the other hand, the ship was at the time clearly unseaworthy and unfit for the voyage, they were fully justified in insisting upon her return home, and were guilty of no offense. The law deems the lives of all persons far more valuable than any property; and will not permit a master, under color of his acknowledged authority on board of the ship, from rashness or passion or ignorance, to hazard the lives of the crew in a crazy ship, or compel them to encounter risks and perform duties which are so imminent and overwhelming that they can escape only by the most extraordinary chances, and, as it were, by miraculous exertions. If he should order them into a boat on the ocean at a time when they could scarcely fail of being swamped or foundered, they would not be bound to obey. His commands, to be entitled to obedience, must, under the circumstances, be reasonable. The proposition can not for a moment be maintained that the crew are bound to proceed on the voyage in an unseaworthy and rotten ship, at the imminent hazard of their lives, merely because the master and officers choose in their rashness of judgment to proceed. It is true that in all cases of doubt the judgment of the master and officers ought to have great weight, and from their superior intelligence, ability and skill it may be relied on with far more confidence than that of the crew. They are embarked in the same common enterprise and risks, and it can not be ordinarily presumed that they will hazard their own lives in a vehicle which is really unfit for the voyage. Still if the case does occur, if they will insist on proceeding, no matter at what hazard to life, and the ship is unseaworthy, I am clear that the crew have a right to resist and to refuse obedience. It is a case of justifiable self-defence against an undue exercise of power. Neither of these cases is of any real difficulty. But the case of difficulty is this: Suppose the ship to be in that state in which the presumption of apparent unseaworthiness

1Act of 1790, ch. 56.

really arises, and the crew bona fide act upon that presumption, and the jury should be of opinion that they acted justifiably upon that presumption at the time; and suppose upon the trial it should turn out (as in the present case it may), that there is real doubt whether the ship be seaworthy or not; or upon the evidence the case is nearly balanced in the conflict of credible as well as competent testimony, and the jury should on the whole deem the preponderance of evidence just enough to turn the scale in favor of seaworthiness, but not to place it entirely beyond doubt I ask whether, under such circumstances, the crew ought to be convicted of the offense charged, having acted upon their best judgment fairly, and in a case where respectable, intelligent and impartial witnesses should assert that they should have done the same, and where even the jury themselves might adopt the same opinion, although there might be an error in the fact of seaworthiness, as established at the trial? I have great difficulty in coming to the conclusion that under such circumstances the crew were guilty of the offense charged. I am aware of the dangers of not upholding with a steady hand the authority of the master, but I am not the less aware of the necessity of having a just and tender regard for life. Seamen, when they contract for a voyage, do not contract to hazard their lives against all perils which the master may choose they shall encounter. They contract only to do their duty and meet the ordinary perils and to obey reasonable orders. The relation between master and seaman is created by the contract; but that relation, when created, is governed by the general principles of law. Unlimited submission does not belong to that relation. I have great repugnance to creating constructive offenses, and especially where there is perfect integrity of intention. I am aware that in some cases crimes may be committed independently of any supposed intention to do wrong. But in most cases, and I think in a case of this nature, the intention and the act must both concur to constitute an offense. There are cases even of the highest crimes, as of homicide, where an honest and innocent mistake in killing another, under circumstances of a reasonable presumption, though a mistaken one, that the party killed intended to kill the other party, when the latter will be excused by law.

I have had this subject a good deal in my thoughts during the progress of this trial (and the point is certainly a new one); and the strong inclination of my opinion at present is, subject to be changed by any argument hereafter urged, that the defendants ought not to be found guilty if they acted bona fide upon reasonable grounds of belief that the ship was unseaworthy, and if the jury, from all the circumstances, are doubtful whether the ship was seaworthy, or even in a measuring cast should incline to believe the ship seaworthy. If she was clearly seaworthy beyond reasonable doubt, then the defendants ought to be convicted, for the facts of the combination and resistance are admitted. A nolle prosequi was then entered.

§ 207. Obstructing Officer and Resisting. So a person to be punishable for obstructing an officer must know him to be such.1.

To constitute the crime of hindering an officer in the discharge of his duty the defendant must know the person to be an officer.

So a person is not indictable for assaulting an officer in the discharge of his duties, unless he knows that the party assaulted is an officer.3

1 State v. Maloney, 12 R. I, 251 (1880).

2 State v. Carpenter, 54 Vt. 552 (1882).

3 Johnson v. State, 26 Tex. 117 (1861).