has been at the root of criminal law. The consequence is that it is not to be intended that this principle is discarded, merely on account of the generality of statutory language. It is highly reasonable to presume that the law-makers did not intend to disgrace or to punish a person who should do an act under the belief that it was lawful to do it. And it is this presumption that fully justifies the statement of Mr. Bishop, "that a statute will not generally make an act criminal, however broad may be its language, unless the offender's intent concurred with his act." 1 Crim. Law, § 80. This doctine applies with full force to the present case. If the magistrate received the fees in question without any corrupt intent, and under the conviction that they were lawfully his due, I do not think such act was a crime by force of the statute above recited. But it is further argued on the part of the prosecution, that as the fees to which the justice was entitled are fixed by law, and as he cannot set up as an excuse for his conduct his ignorance of the law, his guilty knowledge is undeniable. The argument goes upon the legal maxim, Ignorantia legis neminem excusat. But this rule, in its application to the law of crimes, is subject, as it is sometimes in respect to civil rights, to certain important exceptions. Where the act done is malum in se, or where the law which has been infringed was settled and plain, the maxim, in its rigor, will be applied; but where the law is not settled, or is obscure, and where the guilty intention, being a necessary constituent of the particular offence, is dependent on a knowledge of the law, this rule, if enforced, would be misapplied. To give it any force in such instances would be to turn it aside from its rational and original purpose, and to convert it into an instrument of injustice. The judgments of the courts have confined it to its proper sphere. Whenever a special mental condition constitutes a part of the offence charged, and such condition depends on the question whether or not the culprit had certain knowledge with respect to matters of law, in every such case it has been declared that the subject of the existence of such knowledge is open to inquiry, as a fact to be found by the jury. This doctrine has often been applied to the offence of larceny. The criminal intent, which is an essential part of that crime, involves a knowledge that the property taken belongs to another; but even when all the facts are known to the accused, and so the right to the property is a mere question of law, still he will make good his defence if he can show, in a satisfactory manner, that being under a misapprehension as to his legal rights, he honestly believed the articles in question to be his own. Rex v. Hall, 3 Car. & P. 409; Reg. v. Reed, Car. & Marsh. 306. The adjudications show many other applications of the same principle, and the facts of some of such cases were not substantially dissimilar from those embraced in the present inquiry. In the case of The People v. Whaley (6 Cow. 661), a justice of the peace had been indicted for taking illegal fees, and the court held that the motives of the defendant, whether they showed corruption or that he acted through a mistake of the law, were a proper question for the jury. The case in The Commonwealth v. Shed (1 Mass. 228), was put before the jury on the same ground. This was likewise the ground of decision in the case of The Commonwealth v. Bradford (9 Metc. 268), the charge being for illegal voting, and it being declared that evidence that the defendant had consulted counsel as to his right of suffrage, and had acted on the advice thus obtained, was admissible in his favor. This evidence was only important to show that the defendant, in infringing the statute, had done so in ignorance of the rule of law upon the subject. Many other cases, resting on the same basis, might be cited; but the foregoing are sufficient to mark clearly the boundaries delineated by the courts to the general rule, that ignorance of law is no defence where the mandates of a statute have been disregarded or a crime has been perpetrated. That the present falls within the exceptions to this general rule appears to me to be plain. There can be no doubt that an opinion very generally prevailed that magistrates had the right to exact the fees which were received by this defendant, and that they could be legally taken under similar circumstances. The prevalence of such an opinion could not, it is true, legalize the act of taking such fees; but its existence might tend to show that the defendant, when he did the act with which he stands charged, was not conscious of doing anything wrong. If a justice of the peace, being called upon to construe a statute with respect to the fees coming to himself, should, exercising due care, form an honest judgment as to his dues, and should act upon such judgment, it would seem palpably unjust, and therefore inconsistent with the ordinary grounds of judicial action, to hold such conduct criminal, if it should happen that a higher tribunal should dissent from the view thus taken, and should decide that the statute was not susceptible of the interpretation put upon it. I think the defendant had the right in this case to prove to the jury that the moneys, which it is charged he took extorsively, were received by him under a mistake as to his legal rights, and that, as such evidence being offered by him was overruled, the judgment on that account must be reversed.1 THE STATE v. IVINS. (36 New Jersey, 233. Supreme Court, June, 1873.) Rape. Evidence of Complaint by Prosecutrix. 1. On the trial of an indictment for an attempt to ravish, a complaint made soon after the assault, by the woman assaulted, is admissible in evidence. 2. The particulars of the transaction, as detailed by the prosecutrix, are not legal evidence on such trial. ON case certified by the Court of Quarter Sessions of the county of Monmouth. Argued at February Term, 1873, before Beasley, Chief Justice, and Justices Bedle, Dalrimple, and Depue. For defendant, Wm. H. Vredenburgh. 1 See note to U. S. v. Anthony, ante, p. 208, and to U S. v. Taintor, ante, p. 241. BEASLEY, Chief Justice. The defendant was tried for an attempt to ravish. The fact that the prosecutrix made complaint immediately after the occurrence, and her narration of the particulars of the occurrence were proved on the part of the state, and such testimony was, against the objection of the counsel of the defendant, admitted in evidence. The certified case presents two questions for solution: first, whether on the trial of an indictment for an attempt to ravish, a complaint made soon after the assault, by the woman assaulted, is admissible; and, second, if such complaint be admissible, whether the particulars of the transaction, as detailed by the prosecutrix, are legal evidence on such trial. With respect to the first point, the rule that in trials for rape, the fact that the woman alleged to have been violated made complaint soon after the occurrence, is admissible as evidence on the part of the prosecution, is entirely settled, and is very familiar in practice. To this extent, hearsay evidence becomes admissible, and this departure from the ordinary rule seems justifiable on the ground that, in the natural course of things, if a woman has thus been foully wronged, she will almost necessarily disclose the fact. It is the peculiar nature of the offence that has introduced this exceptive practice. If the offence was an assault and battery, no matter how grievous in its character, there could be no pretence that the sayings of the prosecutrix out of court and out of the presence of the defendant could be introduced as a part of the proof in behalf of the prosecution. And it is now said, that the exception which legalizes the introduction of this hearsay in case of a charge of rape will be confined to the narrowest limits, and not extended to trials for attempts to commit that crime. There does not appear to be much authority upon the subject, but the little that there is favors the admissibility of the evidence. Brazier's case, reported in 1 East P. C. 443, tends evidently to this result, and the point was ruled in the same way by Holroyd, J., in Rex v. Clark, 2 Starkie R. 241. There seems to be no very cogent reason why these intimations should not be followed. Under such circumstances, the main thing is to have the rule settled. The rule with respect to the admissibility of the complaint of the prosecutrix must be held to be the same where the charge is an attempt to ravish, as it is when the crime of rape itself is charged. But on the second ground of the objection, the defence must prevail. The particulars of the. prosecutrix's complaint were clearly inadmissible. It is every day's practice to exclude such narrations in trials for rape. There is no doubt upon the subject, and it is not necessary to pursue it. The sessions should be advised, on this account, to set aside the verdict. 1 Originally, the making immediate complaint was a prerequisite to the maintenance of the prosecution. See 1 Crim. Law Rep. p. 321, note. STATE OF MISSOURI, respondent, v. WILLIAM BURGDORF, ap pellant. (53 Missouri, 65. Supreme Court, March Term, 1873.) Rape. Must be utmost Resistance. The crime of rape can only be committed where there is on the part of her on whom the attempt is made the utmost reluctance, and the utmost resistance. A passive course of conduct, or slight resistance, is not sufficient; there must be no consent, however reluctant. APPEAL from St. Louis Circuit Court. Jecko & Hospes, for appellant. SHERWOOD, Judge, delivered the opinion of the court. Burgdorf was indicted for the crime of rape alleged to have been perpetrated by him on Anna Rorschach, a girl about sixteen years of age. The trial of the cause resulted in a verdict of guilty, and judg ment accordingly, and after moving unsuccessfully for a new trial, this case comes here by appeal. The only ground relied on for a reversal is that the verdict is entirely unsupported by the evidence. Without setting forth in detail the disgusting particulars of this accusation, it is sufficient to say, with regard to the salient points in the evidence, that whether we consider the place of the reputed offence (a house but a few feet distant from one in which two families were then living), the early hour in the evening at which it is said to have occurred, or the manner of its alleged perpetration (viz. the seizure by the defendant of both the girl's hands in one of his, the holding of them behind her back, and while thus still holding them, seating himself in a chair, raising one of her legs with one hand, and the other leg with his foot, pulling her "astraddle" of his lap and consummating the outrage, and this, too, while holding the table on which was a lighted lamp, with his other hand, and thus preventing her from pushing him over, as she says, the second time), the story of the girl is to the last degree improbable. In addition to this, she is contradicted by Hammill, a witness on the part of the state, who was peeping through a crack of the door, only some seven or eight feet distant, and who reiterates the statement that though he heard a kind of screaming at first, the girl made no outcry while the offence was being perpetrated; and that after the defendant laid down his pipe and took her by the arm, and placed her in the position above referred to, she seemed to be "satisfied," and that she also caught hold of the table with the lighted lamp on it; and the lamp stood still. And Ehert, though not so positive in his statements as to outcries as Hammill, says he heard no screaming while he and the former were together at the door. Further than that, the physician who examined the girl the next day stated that he found no bruises on her person, and that he got her to make statements respecting the alleged offence. In trials of this character, the admonitory advice of Lord Hale, that this is an accusation easily made, hard to be proved, and still harder to be defended by one ever so innocent, should never be forgotten. Here the testimony of the party said to be injured, is not only unsupported by any other evidence, but in its more prominent and essential features is flatly contradicted. And she never makes any complaint only as it is extorted from her by the interrogatories of the medical examiner. Besides, the method of the sexual act in question can scarcely be credited, unless consent were one of the ingredients of the transaction. Thus, where the prisoner worked himself under the prosecutrix, and in this way had connection with her, it was held no rape, and this evidently upon the ground of extreme improbability. The crime under consideration can, in the language of one of the authorities, only be committed where there is on the part of her on whom the attempt is made "the utmost reluctance, and the utmost resistance." The "passive policy," or a mere half-way case, will not do. It certainly must have been a very amicable struggle indeed, which would inflict no bruises on the girl, cause no outcries during its continuance, and leave the lighted lamp standing still upon the table; which, in the effort for supremacy, was grasped by both contestants. In a word, this was not the conduct of a woman jealous of her chastity, shuddering at the bare thought of dishonor, and flying from pollution. Had it not been for the tell-tale crack in the door, we doubtless would have never heard from the case. The jury committed the very common error of allowing the heinousness of the charge to hurry them on to the conclusion reached in their verdict. But accusation and guilt are not yet synonymous: some attention has still to be paid to the rules of evidence; and the court should not have permitted the verdict, "Baseless as the fabric of a vision." Judgment reversed and cause remanded. The other judges concur.1 STATE OF MISSOURI, appellant, v. R. B. GRISWOLD, respondent. (53 Missouri, 181. Supreme Court, July Term, 1873.) Bigamy. Indictment. Allegation to give Jurisdiction. When a court acquires jurisdiction in an indictment for bigamy only by virtue of the arrest of the prisoner within the limits of its jurisdiction (W. S. 499, § 4,) the indictment must allege the apprehension of the prisoner within the limits of said jurisdiction prior to the finding of the indictment. APPEAL from Greene Circuit Court. H. Clay Ewing (Attorney General), for appellant. WAGNER, Judge, delivered the opinion of the court. |