ever, must govern; and the repeal of a repealing law will not have this effect if a contrary intention is manifest.212 Of course, the preexisting law is not revived so as to apply to acts committed when it was not in force.2 213

the repeal of the repealing act. See Heinssen v. State, 14 Colo. 228; State v. Slaughter, 70 Mo. 484; Sullivan v. People, 15 Ill. 233.

212 Com. v. Churchill, 2 Metc. (Mass.) 123; Com v. Marshall, 11 Pick. (Mass.) 350, 22 Am. Dec. 379. Beale's Cas. 5.

213 Com. v. Marshall, supra.

CHAPTER III.

THE CRIMINAL INTENT AND CAPACITY TO

COMMIT CRIME.

I. IN GENERAL, 54-67.

II.

IGNORANCE OR MISTAKE OF FACT, ?? 68-72.

III. IGNORANCE OR MISTAKE OF LAW, 88 73-75.

IV.

V.

VI.

VII.

RESPONSIBILITY OF MARRIED WOMEN, ?? 85-87.

RESPONSIBILITY OF INFANTS, ?? 88-92.

RESPONSIBILITY OF INSANE PERSONS, ??

93-99.

VIII. RESPONSIBILITY OF DRUNKEN PERSONS, ??

100-108.

IX. RESPONSIBILITY OF CORPORATIONS, ¿? 109–

113.

X. CONCURRENCE OF ACT AND INTENT,

114-115.

1. CRIMINAL INTENT IN GENERAL.

54. Necessity for a Criminal Intent. It is a general rule, applicable both to common-law and to statutory crimes, that there is no crime unless there is a criminal intent. The legislature, however, if it sees fit, may punish acts when the mind is entirely innocent, and on grounds of public pol icy it has dispensed with the necessity for a crim. inal intent in some cases.

55. Necessity for Criminal Intent at Common Law.

No principle of the common law is better.

settled or more generally applicable than the principle that an act is not a crime if the mind of the person doing the act is innocent. The maxim is, "actus non facit reum, nisi mens sit rea." A wrongful act and a wrongful intent must concur. "It is a sacred principle of criminal jurisprudence," said the Tennessee court, "that the intention to commit the crime is of the essence of the crime, and to hold that a man shall be held criminally responsible for an offense, of the commission of which he was ignorant at the time, would be intolerable tyranny." It is because of this principle, as we shall presently see at some length, that the law does not punish children of tender age and insane persons, who, by reason of their mental incapacity, are incapable of understanding the nature of

1 Reg. v. Tolson, 23 Q. B. Div. 168, Beale's Cas. 286; Levet's Case, Cro. Car. 538, 1 Hale, P. C. 474, Beale's Cas. 286; Gordon v. State 52 Ala. 308, 23 Am. Rep. 575; Birney v. State, 8 Ohio, 230, Beale's Cas. 303; Duncan v. State, 7 Humph. (Tenn.) 148; People v. Welch, 71 Mich. 548; Com. v. Weiss, 139 Pa. St. 247, 23 Am. St. Rep. 182; State v. Snyder, 44 Mo. App. 429; and numerous cases hereafter more specifically cited.

2 Duncan v. State, 7 Humph. (Tenn.) 148.

their acts, or of distinguishing between right and wrong, persons acting in good faith and without negligence under a mistake of fact, and persons acting under necessity or compulsion.

56. Necessity for Criminal Intent in Statutory Offenses.

(a) In General.-Ordinarily the principle that a criminal intent is a necessary element of crime applies to statutory offenses as well as to offenses at common law,3 for, as was explained in another chapter, penal statutes are to be construed in accordance with commonlaw principles, unless the legislature has clearly excluded such construction. The principle, however, is not inflexible in the case of statutory offenses. It is within the power of the legislature, if it sees fit, to dispense with the necessity for a criminal intent, and to punish particular acts without regard

3 Reg. v. Tolson, 23 Q. B. Div. 168, Beale's Cas. 286; Rider v. Wood, 2 El. & El. 338; Reg. v. Tinkler, 1 Fost. & F. 513, Beale's Cas. 285; Gordon v. State, 52 Ala. 308, 23 Am. Rep. 575; Myers v. State, Conn. 502, Beale's Cas. 302; Stern v. State, 53 Ga. 229, 21 Am. Rep. 266; Duncan v. State, 7 Humph. (Tenn.) 148; Birney v. State, 8 Ohio, 230, Beale's Cas. 303; People v. Welch, 71 Mich. 548.

4 Ante, § 47 (e).

to the mental attitude of the doer.

Because of the difficulty of proving a criminal intent in some cases, or for other reasons, public policy may require the legislature, in prohibiting and punishing certain acts, to provide that any person who shall do the act shall do it at his peril, and shall not be allowed to show in defense that he did not know of the existence of the circumstances rendering the act unlawful. If such an intention on the part of the legislature clearly appears, the courts must give it effect, however harshly the statute may operate in the particular case.5

(b) Construction of the Statutes.—The legislature may dispense with the necessity for a criminal intent either in express terms or impliedly. In the former case there can be no difficulty; but, when the intention of

5 Reg. v. Woodrow, 15 Mees. & W. 404; Halstead v. State, 41 N. J. Law, 552, 32 Am. Rep. 247; Com. v. Farren, 9 Allen (Mass.) 489; Com. v. Mash, 7 Metc. (Mass.) 472, Beale's Cas. 304; Com. v. Boynton, 2 Allen (Mass.) 160, Beale's Cas. 306; Com. v. Wentworth, 118 Mass. 441; Com. v. Connelly, 163 Mass. 539; State v. Kelly, 54 Ohio St. 166; State v. Smith, 10 R. I. 258; State v. Huff, 89 Me. 525; State v. Zichfeld, 23 Nev. 304, overruling State v. Gardner, 5 Nev. 377; People v. Roby, 52 Mich. 577.