a highway by digging it up and placing stones and dirt therein.324 This view, however, has been almost universally repudiated, and it may now be regarded as settled that a corporation may be indicted for misfeasance as well as for nonfeasance.325 Thus, indictments. have been sustained against railroad companies and other corporations for obstructing a highway by positive acts, as by cutting through the same,326 or by building station houses, depots, or other structures thereon.327 Indictments have also been sustained against corporations for creating a nuisance by build

324 Com. v. Swift Run Gap Turnpike Co., 2 Va. Cas. 362.

325 Reg. v. Great North of England R. Co., 9 Q. B. 315; Com. v. Proprietors of New Bedford Bridge, 2 Gray (Mass.) 339, Beale's Cas. 277; Palatka, etc., R. Co. v. State, 23 Fla. 546, 11 Am. St. Rep. 395; Delaware Division Canal Co. v. Com., 60 Pa. St. 367, 100 Am. Dec. 570; State v. City of Portland, 74 Me. 268, 43 Am. Rep. 586; State v. Atchison, 3 Lea (Tenn.) 729, 31 Am. Rep. 663; State v. Baltimore & O. R. Co., 15 W. Va. 362, 26 Am. Rep. 803.

326 Reg. v. Great North of England R. Co., 9 Q. B. 315.

327 State v. Morris & E. R. Co., 23 N. J. Law, 360; State v. Vermont Cent. R. Co., 27 Vt. 103.

ing a bridge across a navigable river,328 and by polluting a water course, 329 for keeping a disorderly house,330 for permitting gaming on its premises,331 for taking usury, 332 for violation of the Sunday laws,333 and for cutting down timber and obstructing a river, in violation of a statute.334

112. Offenses Involving Personal Violence or Evil Intent.

It has been said that a corporation cannot be indicted for an offense involving the ele

328 Com. v. Proprietors of New Bedford Bridge, 2 Gray (Mass.) 339, Beale's Cas. 277.

329 In Rex v. Medley, 6 Car. & P. 292, an indictment was sustained against a gas company for nuisance in so conducting its works as to convey large quantities of noisome liquids, arising from the manufacture of gas, into the river Thames, whereby the water was polluted, and fish destroyed. See, also, State v. City of Portland, 74 Me. 268, 43 Am. Rep. 586.

330 State v. Passaic County Agricultural Soc., 54 N. J. Law, 260.

331 Com. v. Pulaski County A. & M. Ass'n, 92 Ky. 197.

332 State v. Security Bank of Clark, 2 S. D. 538. 333 State v. Baltimore & O. R. Co., 15 W. Va. 362, 36 Am. Rep. 803.

334 State v. White Oak River Corp., 111 N. C.

ment of personal violence, as assault and battery, or for an offense involving the element of malice or evil intent.335 And perhaps this must now be regarded as the law. It is well settled, however, that a corporation may be be made liable in a civil action for an assault and battery committed by an agent in the course of his employment, and for malicious wrongs of its agents, and some of the courts have shown a tendency to extend this doctrine to criminal prosecutions. Malice is an element of criminal libel, and an indictment for libel has been sustained against a corporation.336 Wharton says that there is no reason why the same acts for which a corporation is subject to a civil action may not equaily be the basis of a criminal proceeding, when they result in injury to the public at large;337 and he is sustained by dicta in some of the late cases. 338 There are some crimes of

335 Com. v. Proprietors of New Bedford Bridge, 2 Gray (Mass.) 339, Beale's Cas. 277; Reg. v. Birmingham & G. R. Co., 3 Q. B. 223, 9 Car. & P. 469; Delaware Division Canal Co., v. Com., 60 Pa. St. 367, 100 Am. Dec. 570.

336 State v. Atchison, 3 Lea (Tenn.) 729, 31 Am. Rep. 663.

337 1 Whart. Crim. Law, § 87.

338 See Com. v. Pulaski County A. & M. Ass'n,

which, from their very nature, corporations cannot be guilty, as perjury.339 And they cannot be indicted for a felony, because, if for no other reason, they cannot be subjected to the punishment prescribed for felony.34 113. Municipal Corporations.

The doctrine that corporations may be liable to indictment applies, not only to private corporations, but to municipal corporations as well. Thus, it has been held that a municipal corporation may be indicted for nuisance where it so constructs its public sewers that the outfalls thereof create a public nuisance, noisome and prejudicial to the public health, and fails to promptly remove the accumulations of filth.341

92 Ky. 200; State v. Passaic County Agricultural Soc., 54 N. J. Law, 260; State v. Baltimore & O. R. Co., 15 W. Va. 362, 36 Am. Rep. 803.

339 Com. v. Pulaski County A. & M. Ass'n, supra.

340 Com. v. Pulaski County A. & M. Ass'n, supra. And see Com. v. Proprietors of New Bedford Bridge, 2 Gray (Mass.) 339, Beale's Cas. 277.

341 State v. City of Portland, 74 Me. 268, 43 Am. Rep. 586.

In People v. Albany Corp., 11 Wend. (N. Y.) 539, it was held that where the corporation of a

X. CONCURRENCE OF ACT AND INTENT.

114. In General.-When a particular intent is es

sential to constitute a crime, the act and

the intent must concur in point of time. For example, to constitute larceny it is essential that there shall be a trespass in taking the property, and that the property shall be taken with felonious intent. The offense is not committed unless these two elements concur in point of time. If a man obtains possession of another's goods by delivery by the other, and without any fraudulent intent at the time, he does not commit a trespass, and he cannot commit a trespass so long as he has lawful possession. If, therefore, while thus in possession, he conceives a felonious intent, and appropriates the goods to his own use, he does not commit larency 342 And so it is in the case of burglary, which is the breaking

city had power to direct the excavating, deepening, and cleansing of a basin connected with a river, and neglected to take the necessary measures in that respect after the basin had become foul by the aggregation of mud and other substances, so that the water was corrupted, and the air infected by noisome and unwholesome stenches, and a nuisance was thus created, an indictment would lie against it.

342 Post, § 316.