across a navigable river,328 or other misfeasance,328a by building a railway crossing so as to obstruct the highway,328b and by polluting a watercourse,329 for keeping a disorderly house,330 for permitting gaming on its premises,331 for unlawfully selling liquor,331a for taking usury,332 for publishing a libel,332 for violation of the Sunday laws,333 for peddling by an agent without a license,333a for defrauding the revenue,333b for violating a statute regulating hours of labor,333c 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 element 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

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

328a People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735. 828b Northern Cent. R. Co. v. Com., 90 Pa. 300.

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 Agr. Soc., 54 N. J. Law, 260, 23 Atl. 680. 331 Com. v. Pulaski County Agr. & M. Ass'n, 92 Ky. 197, 17 S. W. 442. Compare State v. Sullivan County Agr. Soc., 14 Ind. App. 369, 42 N. E. 963.

331a Action for penalty, Stewart v. Waterloo Turn Verein, 71 Iowa, 226, 32 N. W. 275.

332 State v. Security Bank of Clark, 2 S. D. 538, 51 N. W. 337. 332a State v. Atchison, 3 Lea (71 Tenn.) 729, 31 Am. Rep. 663. And see Telegram Newspaper Co. v. Com., 172 Mass. 294, 52 N. E. 445.

333 State v. Baltimore & O. R. Co., 15 W. Va. 362, 36 Am. Rep. 803. 833a Standard Oil Co. v. Com., 107 Ky. 606, 55 S. W. 8.

333b U. S. v. Baltimore & O. R. Co., 7 Am. Law Reg. (N. S.) 757, Fed. Cas. No. 14,509.

333c U. S. v. John Kelso Co., 86 Fed. 304, Mikell's Cas. 328.

334 State v. White Oak River Corp., 111 N. C. 661, 16 S. E. 331.

335 Com. v. Proprietors of New Bedford Bridge, 2 Gray (Mass.) 339,

the law. It is well settled, however, that a corporation may 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.335a 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 equally 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 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.3

113. Municipal Corporations.

340

The doctrine that corporations may be liable to indictment applies, not only to private corporations, but to municipal corBeale'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. 367, 100 Am. Dec. 570; Orr v. Bank of U. S., 1 Ohio, 36; Com. v. Punxsutawney St. Pass. R. Co., 24 Pa. Co. Ct. R. 25.

335a Com. v. Pulaski County Agr. & M. Ass'n, 92 Ky. 197, 17 S. W. 442; State v. Baltimore & O. R. Co., 15 W. Va. 362, 36 Am. Rep. 803. 336 State v. Atchison, 3 Lea (Tenn.) 729, 31 Am. Rep. 663. 337 1 Whart. Crim. Law, § 87.

338 See Com. v. Pulaski County Agr. & M. Ass'n, 92 Ky. 197, 17 S. W. 442; State v. Passaic County Agr. Soc., 54 N. J. Law, 260, 23 Atl. 680; State v. Baltimore & O. R. Co., 15 W. Va. 362, 36 Am. Rep. 803.

339 Com. v. Pulaski County A. & M. Ass'n, supra. John Kelso Co., 86 Fed. 304, Mikell's Cas. 328.

And see U. S. v.

And see Com. v.

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

porations 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

X. CONCURRENCE OF ACT AND INTENT.

114. In General.—When a particular intent is essential to constitute a crime, the act and the intent must concur in point of time.841a

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 larceny.342

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 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.

341a A criminal act as well as a criminal intent is necessary. Post, § 116.

342 Reg. v. Matthews, 12 Cox, C. C. 489, Mikell's Cas. 333; post, §§ 316, 317, 318, 320, 332.

An indictment for killing a sheep with intent to steal the carcass is sustained by proof that the prisoner when interrupted had given it a deadly wound of which it died two days later. Reg. v. Sutton, 2 Mood. C. C. 29, Mikell's Cas. 335.

And so it is in the case of burglary, which is the breaking and entering of the dwelling house of another in the nighttime with intent to commit a felony. This intent must exist at the time of the breaking and entry. It is not burglary to break and enter a dwelling house without any felonious intent, and afterwards form and carry out such an intent.343

Likewise where a police officer went into a house in good faith to prevent a violation of law and arrest the offender, and after entry violated the law himself, his subsequent conduct did not relate back so as to make his original entry a trespass. 343a 115. Ratification of Another's Act.

If an unlawful act is done by a person's agent or servant without his authority, subsequent ratification of the act will not render him responsible.344

343 State v. Moore, 12 N. H. 42, Beale's Cas. 224; post, § 407. 343a Milton v. State, 40 Fla. 251, 24 So. 60, Mikell's Cas. 334. 344 Morse v. State, 6 Conn. 9, Beale's Cas. 223; post, § 194 (i).

I.

CHAPTER IV.

THE CRIMINAL ACT-IN GENERAL.

NECESSITY FOR A CRIMINAL ACT, §§ 116-118. II. ATTEMPT TO COMMIT CRIME, §§ 119-129.

III.

SOLICITATION TO COMMIT CRIME, §§ 130-133.

IV. CRIMINAL CONSPIRACY, §§ 134-149.

V. CONSENT AS BETWEEN INDIVIDUALS, §§ 150-154.
VI. RECOVERY IN CIVIL ACTION, § 155.

VII. SETTLEMENT AND CONDONATION, § 156.

VIII. WRONG OF PERSON INJURED, § 157.

IX.

CONTRIBUTORY NEGLIGENCE OF PERSON INJURED, § 158.

X. CONTRIBUTING ACTS OR NEGLIGENCE OF THIRD PERSONS, § 159. XI. ENTRAPMENT, §§ 160-162.

I. NECESSITY FOR A CRIMINAL ACT.

116. In General.-To constitute a crime there must be a criminal act, as well as a criminal intent. The law does not punish a mere intent to commit a crime. There is a sufficient act, however,

1. Where a person attempts to commit a crime, though he may not succeed in accomplishing his purpose.

2. Where a person solicits another to commit a felony, or in some jurisdictions a misdemeanor, though the other may not do so.

3. Where two or more agree or conspire to commit a crime or do any other unlawful act, though no attempt may be made to carry out the conspiracy.

117. Mere Intention to Commit a Crime.

The general rule that the state does not take cognizance of or undertake to punish a criminal intent, unless it is accompanied by a criminal act, has repeatedly been laid down in text-books and in the cases. "It is certain that a bare intention is not punishable;" but "when joined with acts whose circumstances