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the penalty for a certain offense was that the convict should lose his right hand, he could not be adjudged to lose his left hand, the right hand having before been cut off. An act was silent on the place of imprisonment, and as between different places at which, under proper conditions, imprisonment could be adjudged, it was held that it must be at the place which will be the lesser punishment rather than the severer — with those convicted of misdemeanors, rather than with those convicted of higher crimes. Nor can a statute be extended beyond its grammatical sense or natural meaning on any plea of the failure of justice. If the statute is ambiguous, the construction adopted should be that most favorable to the accused. Courts are authorized to inquire into and carry out the manifest intention of the legislature; but if there is such an ambiguity in a penal statute as to leave reasonable doubts of its meaning, it is the duty of a court not to inflict the penalty.s

1 Dwarris, 634.

2 Horner v. State, 1 Oregon, 267. 3 Remmington v. State, 1 Oregon, 281.

4 The Schooner Enterprise, 1 Paine, 32; Commonwealth v. Martin, 17 Mass. 359.

5 In Schooner Enterprise, 1 Paine, 32, Livingston, J., said: "The act, and particularly that part of it under which a forfeiture is claimed, is highly penal, and must therefore be construed as such laws always have been and ever should be. But while it is said that penal statutes are to receive a strict construction, nothing more is meant than that they shall not, by what may be thought their spirit or equity, be extended to offenses other than those which are specially and clearly described and provided for. A court is not, therefore,

precluded from inquiring into the intention of the legislature. However clearly a law may be expressed, this must ever, more or less, be a matter of inquiry. A court is not, however, permitted to arrive at this

intention by mere conjecture, but it is to collect it from the object which the legislature had in view, and the expressions used which should be competent and proper to apprise the community at large of the rule which it is intended to prescribe for their government. For although ignorance of the existence of a law be no excuse for its violation, yet, if this ignorance be the consequence of an ambiguous or obscure phraseology, some indulgence is due to it. It should be a principle of every criminal code, and certainly belongs to ours, that no person be adjudged guilty of an offense, unless it be created and promulgated in terms which leave no reasonable doubt of their meaning. If it be the duty of a jury to acquit where such doubts exist concerning a fact, it is equally incumbent on a judge not to apply the law to a case when he labors under the same uncertainty as to the meaning of the legislature." Wright v. Bolles Woodenware Co. 50 Wis. 167; United States v. One Hundred Bar

§ 354. A penal statute should be construed to carry out the obvious intention of the legislature, and be confined to that. Every case must come not only within its letter but within its spirit and purpose; but it should be given a rational construction. There must generally be such an act or omission as implies an actual and conscious infraction of duty. A law which condemns to capital punishment one who strikes his father would not be held applicable to one who has shaken and struck his father to arouse him from a lethargic stupor.' Where the master of a steamboat was subjected to a penalty for failing to deliver any letter which should be left "in his care or within his power," it was held that there must be knowledge of this fact, and mere possession by the clerk of the boat was not enough. If notice is required to impose a duty, the neglect of which is punishable, it must be actual notice, and personally served.3 Although to an absolute and sweeping prohibition of the sale of intoxicating liquors, the courts may not imply an exception when sold as a prescription for medicine; it was said by the court in one case: "We are not to be supposed as intimating that physicians and druggists would be prohibited under such a statute from the bona fide use of spirituous liquors in the necessary compounding of medicines manufactured, mixed or sold by them. This would not be within the evils intended to be remedied by such prohibitory enactments, nor even within the strict letter of the statute."

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§ 355. In the very recent case of Regina v. Tolson is, from the standpoint of English decisions, a very exhaustive and instructive discussion of the principle or maxim, actus non facit reum, nisi mens sit rea. The statute of 24 and 25 Vict. ch. 100, sec. 57, provides in these words: "Whoever, being married, shall marry any other person during the life of the former husband or wife, shall be guilty of felony, punishable with penal

rels of Spirits, 2 Abb. (U. S.) 305; United States v. Fitty-six Barrels of Whisky, 1 id. 93; United States v. Garrelson, 42 Fed. Rep. 22.

1 Smith's Com. § 448.

2 United States v. Beaty, Hempst. 487.

3 St. Louis v. Goebel, 32 Mo. 295.

4 Commonwealth v. Kimball, 24 Pick. 366; State v. Brown, 31 Me. 522; Woods v. State, 36 Ark. 36; 38 Am. R. 22; Carson v. State, 69 Ala. 235.

5 Carson v. State, supra.

6 L. R. 23 Q. B. Div. 168 (1889); S. C. 40 Alb. L. J. 250.

servitude for not more than seven years, or imprisonment with or without hard labor for not more than two years," with a proviso that "nothing in this act shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years last past, and shall not have been known by such person to be living within that time." The husband of the defendant deserted her the year following their marriage. She and her father subsequently made inquiries about him, and learned from his brother and from general report that he had been lost at sea. She married again five years after his desertion, and the question was considered whether a belief in good faith and on reasonable grounds that her husband was dead would be a good defense against the charge of bigamy in contracting the second marriage. It was decided in the affirmative. Wills, J., said: "There is no doubt that under the circumstances the prisoner falls within the very words of the statute. She, being married, married another person during the life of her former husband, and, when she did so, he had not been continually absent from her for the space of seven years last past. It is, however, undoubtedly a principle of English criminal law, that, ordinarily speaking, a crime is not committed if the mind of the person doing the act in question be innocent. It is a principle of natural justice and of our law,' says Lord Kenyon, C. J., that actus non facit reum, nisi mens sit rea. The intent and act must both concur to constitute the crime.' The guilty intent is not necessarily that of intending the very act or thing done, and prohibited by common or statute law, but it must at least be the intention to do something wrong. That intention may belong to one or other of two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statute or by common law, or both elements of intention may co-exist with respect to the same deed." 2

1 Fowler v. Padget, 7 T. R. 509, 514. 2 Wills, J., said, in continuing his opinion: "Although prima facie and as a general rule there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a


subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not. There is a large body of municipal law in the present day which is so conceived. By-laws are con

Cave, J., said in the same case: "At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense. This doctrine is embodied in the somewhat uncouth maxim, ‘actus non facit reum, nisi mens sit rea. Honest and reasonable mistake stands in fact on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. So far as I am aware it

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has never been suggested that these exceptions do not equally apply to the case of statutory offenses unless they are excluded expressly or by necessary implication." 1

stantly made regulating the width of thoroughfares, the height of buildings, the thickness of walls, and a variety of other matters necessary for the general welfare, health or convenience, and such by-laws are enforced by the sanction of penalties, and the breach of them constitutes an offense and is a criminal matter. In such cases it would, generally speaking, be, no answer to proceedings for infringement of the by-laws that the person committing it had bona fide made an accidental miscalculation or an erroneous measurement. The acts are properly construed as imposing the penalty when the act is done, no matter how innocently, and in such a case the substance of the enactment is that a man shall take care that the statutory direction is obeyed, that if he fails to do so he does it as his peril.

"Whether an enactment is to be construed in this sense, or with the qualification ordinarily imported into the construction of criminal statutes, that there must be a guilty mind, must, I think, depend upon the subject-matter of the enactment, and the various circumstances that may make the one construction or the other reasonable or unreasonable." Citing and comparing Reg. v. Sleep, L. & C. 44; 30 L. J. (M. C.) 170; Hearne

v. Garton, 2 E. & E. 66; Taylor v. Newman, 4 B. & S. 89; Watkins v. Major, L. R. 10 C. P. 662; Reg. v. Bishop, 5 Q. B. Div. 259; Bowman v. Blyth, 7 E. & B. 26, 43; Foster's Crown Law (3d ed.) App. 439, 440; Rex v. Banks, 1 Esp. 144; Fowler v. Padget, 7 T. R. 509; Reg. v. Willmett, 3 Cox C. C. 281; Reg. v. Cohen, 8 id. 41; Reg. v. O'Brien, 15 L. T. (N. S.) 419; Reg. v. Turner, 9 Cox C. C. 145; Reg. v. Horton, 11 id. 670; Reg. v. Gibbons, 12 id. 237; Reg. v. Prince, L. R. 2 C. C. R. 154; Reg. v. Bennett, 14 Cox C. C. 45; Reg. v. Moore, 13 id. 544.

1 In Reg. v. Tolson, supra, Stephen, J., said: "The principle involved appears to me, when fully considered, to amount to no more than this. The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition. Crimes are in the present day much more accurately defined by statute or otherwise than they formerly were. The mental element of most crimes is marked by one

A statute which gave treble damages for conversion of logs or lumber in certain cases, though broad enough to cover any conversion, was restrictively interpreted in pursuance of

of the words 'maliciously,' 'fraudu- lusion, one man killed another, and lently,' negligently,' or 'knowingly;' if the delusion was such that it but it is the general, I might, I would, if true, justify or excuse the think, say the invariable, practice of killing, the homicide would be justithe legislature to leave unexpressed fied or excused. This could hardly be some of the mental elements of crime. if the same were not law as to a In all cases whatever, competent age, sane mistake. A bona fide claim of sanity, and some degree of freedom right excuses larceny, and many of from some kinds of coercion, are as- the offenses against the malicious missumed to be essential to criminality, chief act. Apart, indeed, from the but I do not believe they are ever present case, I think it may be laid introduced into any statute by which down as a general rule that an alleged any particular crime is defined. . . . offender is deemed to have acted "With regard to knowledge of under that state of facts which he in fact, the law, perhaps, is not quite so good faith and on reasonable grounds clear, but it may, I think, be main- believed to exist when he did the act tained, that in every case knowledge alleged to be an offense. I am unable of fact is to some extent an element to suggest any real exception to this of criminality as much as competent rule, nor has one ever been suggested age and sanity. To take an extreme to me. A very learned person sugillustration, can any one doubt that gested to me the following case: A a man who, though he might be per- constable, reasonably believing a man fectly sane, committed what would to have committed a murder, is justiotherwise be a crime, in a state of fied in killing him to prevent his essomnambulism, be entitled to be ac- cape; but if he had not been a conquitted? And why is this? Simply stable he would not have been so because he would not know what he justified, but would have been guilty was doing. A multitude of illustra- of manslaughter. This is quite true, tions might be given. I will mention but the mistake in the second case one or two glaring ones. Levet's Case, would be not only a mistake of fact, 1 Hale, 474, decides that a man who, but a mistake of law on the part of making a thrust with a sword at a the homicide in supposing that he, a place where, upon reasonable grounds, private person, was justified in using he supposed a burglar to be, killed a as much violence as a public officer, person who was not a burglar, was whose duty is to arrest, if possible, a held not to be a felon, though he person reasonably suspected of murmight be (it was not decided that he der. The supposed homicide would was) guilty of killing per infortu- be in the same position as if his misnium, or possibly se defendendo, take of fact had been true; that is, which then involved certain forfeit- he would be guilty, not of murder, ures. In other words, he was in the but of manslaughter." See State v. same situation, as far as regarded the Bartlett, 30 Me. 132; The Brig Willhomicide, as if he had killed a burg- iam Gray, 1 Paine, 16; United States lar. In the decision of the judges in v. Pearce, 2 McLean, 14; 1 Bish. C. L. Macnaghten's Case, 10 C. & F. 200, §§ 226, 227. it is stated that if, under an insane de

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