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Central Law Journal.

ST. LOUIS, MO., JANUARY 5, 1906.

LIMITATIONS UPON THE RULE THAT CRIMINAL INTENT MAY BE PRESUMED FROM THE ACT ITSELF.

One of the most absurd, unjust and illogical of recent opinions is that of the Court of Appeals of Kentucky in the case of Jones v. Commonwealth, 89 S. W. Rep. 174.

This case was a prosecution under a statute of Kentucky making it a felony "to detain any woman against her will with intent to have carnal knowledge of her." The evidence showed that as the prosecutrix was riding horse back on a highway defendant got on his horse and came facing her, that he pulled into the middle of the road and she pulled off to the side, that as she pulled off he pulled towards her, that she kept pulling off till she got clear off the road and he still pressed towards her, and that when she got in front of him and ran her horse he wheeled and galloped after her till she came in sight of her home. On this statement of facts the court held that a conviction was warranted, although defendant did not touch the prose cutrix or attempt to touch her or her horse or offer her any improper suggestions. On the question of intention the court said: "The evidence of Miss Fogg is to the effect that the defendant got on his horse and came facing her, that he pulled into the middle of the road and she pulled off to the side, as she pulled off he pulled towards her, she kept pulling off until she got clear off the road. and he still pressed towards her. When she got in front of him, he wheeled his horse and followed her. He did not touch her, or attempt to touch her or her horse. He simply pressed her off the road. It is not necessary that the defendant should take physical hold of the woman in order to constitute a detention. If she is detained by him for the purpose of having carnal knowledge of her, he is guilty, although the detention is slight in point of time and no physical force is actually used. Under the facts stated the woman was not only detained on the highway, but was forced off the highway, and when she succeeded in getting past the defendant he

wheeled his horse and followed her at a rapid gait. If he had merely ridden in front of her and had not followed her, there would be more force in the position that there is no evidence to show that he detained her with intent to have carnal knowledge of her. But when he galloped after her, and she had to run her horse to get away from him, and he followed her until she came in sight of her home, we cannot say that there was no evidence to go to the jury on this question."

The trouble with modern courts of last resort in dealing with criminal cases is that they fail to take time to earefully apply ancient common law priciples to modern statutory offenses. For instance, there is no principle of the common law better settled than that there is no crime unless there is a criminal intent. This principle is as applicable to statutory as to common law offenses. Stern v. State, 53 Ga. 229; People v. White, 34 Cal. 183; Rider v. Wood, 2 El. & El. 338: Reg. v. Tolson, 23 Q. B. Div. 168; State v. Eastman, 60 Kan. 557; People v. Welch, 71 Mich. 548. "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." Duncan v. State, 7 Humph. (Tenn.) 148.

There are two exceptions to this rule: First, in some cases criminal intention is Thus in Clark & presumed from the act.

Marshall on Crimes (2nd Ed., 1905), § 58. the rule is thus stated: "If a man voluntarily, and without any mistake as to the facts, does an act which, according to the natural course of events, will probably injure another in a particular way, it will be presumed, in the absence of evidence to the contrary, that he intended such consequences.” Thus where one shoots in the direction of another, it will be presumed that he intended to kill him. Dunaway v. People, 110 Ill. 333. But where the act is in itself not wrong, or not likely to injure the person at whom it is directed, as the mere detention of a person on the highway, no intention to commit a crime can be inferred. Second, a man is responsible for the unintended results of a criminal act. Thus where one engaged in the act of

rape accidentally kills his victim, he is guilty of murder. But this exception includes only acts mala in se. Thus, again to refer to Clark & Marshall on Crimes, § 71c, the limitation on this exception is thus stated: "The principle that a man who is engaged in the commission of an unlawful act is responsible for the unintended results due to his ignorance of fact does not apply where the act is merely malum prohibitum." Thus it is held that one who drives over another is not guilty of criminal assault merely because he was driving at a speed prohibited by an ordinance. Commonwealth v. Adams, 114 Mass. 323. So also, as in the principal case, detention of a female, or any one else, on the highway, or following after her, are at the most acts mala prohibita, and even should person so detained accidentally stumble by reason of the interference and be injured, the person guilty of the detention would certainly not be liable for assault and battery. A fortiori, therefore, in such a case, where no harm comes to the prosecutrix, where her person is not touched or no attempt is made to touch her person or no insult is offered to her, it would be contrary to a most sacred principle of common law to infer an intention to commit a criminal act.

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To show the absurdity of the court's position in the principal case it is only necessary to again advert to the facts of the case. A man rides up to a woman on the highway. He says nothing, at least nothing that she hears or understands. She avoids him and starts at a fast pace to get away from him. He follows but finally gives up the pursuit. No crime has been committed. No, it is answered, but he intended to commit a crime. Well, even so, what crime! It would be as easy to presume robbery as rape, or even murder. What crime shall be charged? Suppose the woman detained carried a bag of gold and the prosecuting attorney charged attempt to commit robbery, would that change the presumption from one to commit rape to one to commit robbery? If conviction for felonies is to depend on such absurd presumptions criminal procedure will be robbed of one of its greatest safeguards against oppression and injustice.

There is still another principle violated in the principal case. It IS almost axiomatic in criminal law that in every

prosecution for an attempt to commit a crime it must be shown clearly and unequivocally that the accused intended to commit that particular crime. Reagan v. State, 28 Tex. App. 227. And especially is this true where the statute makes the intent in so many words the principal ingredient of the crime. Thus,

in the principal case the detention of a female of itself is not a crime, nor does it become a crime until the intent is clearly proven. True, it is not necessary to do the impossible and uncover the secret places of a man's heart and read there the intent with which he does any particular act, but, as we have already seen, where the act done is not one that is naturally calculated to injure one in any particular way, the act itself will not constitute a sufficient basis from which to presume the intention to commit any particular crime. There must be other circumstances proved which reasonably tend to show the commission of the particular crime charged before the case should even be submitted to a jury.

NOTES OF IMPORTANT DECISIONS.

CONTRACTS AGREEMENT FOR COMPENSATION FOR DOCKING HORSE'S TAIL NOT ENFORCEABLE. That no action can be maintained for his services by a veterinary surgeon, who performs the operation of docking horses' tails, is the unique but very just conclusion of the Circuit Court of Jefferson County, Kentucky, Judge Matthew O'Doherty handing down the opinion. The plaintiff sued for work done for a customer who wanted his carriage horse made fashionable. The defendant counterclaimed for damages, on account of the alleged unskilled manner in which the operation was performed. The court bolds that the contract was in violation of the sections of the Kentucky statutes prohibiting cruelty to animals, and was, therefore, void, and neither party can maintain an action for anything growing out of it. The court in its opinion says:

The statute is both just and humane. That docking is a work of unnecessary cruelty, there can be no room for doubt, unless the alleged style customary among fashionable horse owners, and approved by them, can be held to justify it. The court is unwilling to hold that a statute may be repealed by a fad. That it was violated by both plaintiff and defendant seems clear. The horse's tail, as every one knows, is of immense value to him. It is for many purposes bis only means of defense. The act of cutting, or docking is cruel in itself and still more cruel in

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1. Nature of Such Contracts.-I recently had occasion to investigate this question, and I was surprised at the result of my investigation, and believe that there are others who, never having examined the question, will find this article interesting and instructive; and it may be the means of relieving some of erroneous opinions as to what the law is on this question. This class of contracts is becoming more prevalent each year, consequently the attorneys and the courts will be called upon more frequently to consider the question. I classify the subject generally under the head of contracts for want of a better classification under the present state of the decisions on the question. I was of the opinion that such contracts were mere leases, and was proceeding on that theory; but, to my surprise, I found that the higher courts have unanimously decided that such contracts are not leases and possess none of the characteristics of leases, but that the right acquired

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1 Wilson v. Tavener, L. R. (1901), ch. 578; Reynolds v. Van Beuren, 155 N. Y. 120; Goldman v. New York Advertising Co. (N. Y.), 29 Misc. Rep. 133; Lowell v. Strahan, 145 Mass. 1; R. J. Gunning v. Cusack, 50 Ill. App. 290. In Wilson v. Tavener, L. R. (1901), ch. 578, by the terms of a written agreement, the owner of buildings agreed to allow another to erect a boarding upon the forecourt of a building, and to use the gable wall of a building for bill-posting purposes, at a stipulated sum payable quarterly, and the court held that this was not a lease from year to year; but that it was a mere license which could be revoked on reasonable notice, and that a quarter's notice which terminated at the end of the current year was a reasonable notice. In the opinion the court said that the written agreement "did not confer on the plaintiff any right to the exclusive possession of any property or building of the defendant, and therefore I think there was no demise or lease, and that the relation of landlord and tenant was never created between them. The effect of the documents, in my opinion, was to give the plaintiff a license which was always revocable at any time, subject to the terms of the express contract."

by such a contract is a mere license. other cases it is spoken of as an easement; the court in one case saying, "both parties have argued this case upon the theory that the papers signed by Schilling were leases, and that the use of the wall under them was possession. That is a mistake. The right to use the wall 'was a burden or servitude in the nature of an easement,' carrying with it the right to such access as might be necessary to make the burden of value." And other cases hold that such a contract amounts to a simple contract or bargain for the right to place a sign upon the wall for a compenss tion, and is not a lease.* Consequently a failure of the advertiser to erase the sign after the termination of the contract does not ren der him liable as a tenant holding over. Nor are the advertisers liable for injuries to third persons from the falling of a bill board used, but not erected by the advertisers, on the building of another, which the advertisers found on the building and acquired the right to use it for advertising purposes for a stipalated compensation.6

2. Remedies under Such Contracts.

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2 Lowell v. Strahan, 145 Mass. 1; Reynolds v. Van Beuren, 155 N. Y. 120. In the latter case the defenants acquired from the tenants of a building the right to use a bill board erected upon the roof of the de mised premises for a stipulated compensation, and in the course of the opinion the court said: "It is ap parent, therefore, that the defendant's liability must be sustained, if at all, upon what must be conceded to be a very close and doubtful construction of a written license granted to them by the tenant in possession to use the sign for a limited time for a specified purpose."

3 R. J. Gunning Co. v. Cusack, 50 Ill. App. 290. See also Willoughby v. Lawrence, 116 Ill. 11, 4 N. E. Rep. 356, where the right acquired was "all the surface of said fences" surrounding a race track, and the court held that the right acquired related to inside as weh as the outside of the fence, and that the privileges accorded, "if not actually an easement, was a burdes of servitude in the nature of an easement."

4 Goldman v. New York Advertising Co. (N. Y 29 Misc. Rep. 133, which was an action against the de fendant, an advertising company, on the theory that it was liable as a tenant holding over after termina tion of the year, for failure to erase the sign from plaintiff's wall, and the court said: "It is unneces sary for the determination of this appeal to decide whether the paper here in question created a license or an easement, or was merely a simple contract be tween the parties. It is sufficient that it is not a lease. Treated as a simple contract, there was ne obligation on the part of the defendant to remove the advertisement at the end of the year."

Goldman v. New York Advertising Co. (N. Y., 29 Misc. Rep. 133.

6 Reynolds v. Van Beuren, 155 N. Y. 120.

Where the lessees of land for fair grounds and a race-track entered into a contract with a third party whereby the latter acquired the right to use the fence enclosing the land and the buildings erected thereon for advertising purposes, it was held that the advertiser might enforce his rights in and to the land by a suit in equity for specific performance of the contract, or by a suit to restrain its violation.7 In one case it is intimated that an action for damages will lie for breach of such a contract; and in the same case, where the right acquired by the advertiser was for a yearly compensation payable quarterly, it was held that the right to the premises for advertising purposes might be terminated by reasonable notice, and that a three month's notice terminating at the end of the current year was a reasonable notice.

3. In Conclusion. It may be noted that, almost without exception, such contracts have been drawn in the form of leases; and attorneys in instituting suit upon them, and in the majority of cases, the trial courts, have proceeded upon the theory that such contracts were leases; but without exception the higher courts have held that they were not leases. That much is settled; but just what such contracts amount to, whether licenses, easements or merely a simple contract—is an open question, the weight of authority being that the rights acquired by them are mere licenses. D. W. CROCKETT.

Indianapolis, Ind.

7 Willoughby v. Lawrence, 116 Ill. 11, 4 N. E. Rep. 356. In R. J. Gunning Co. v. Cusack, 50 Ill. App. 290, where two rival advertising companies claimed the right to the use of a wall of a building, and each had repeatedly erased the sign of the other thereon, an injunction was held to be the proper remedy against an invasion of the alleged right. See also Wilson v. Tavener, L. R. (1901), ch. 578.

8 Wilson v. Tavener, L. R. (1901), ch. 578.

CONSTITUTIONAL LAW-SALES IN BULK.

WRIGHT v. HART.

Court of Appeals of New York, Oct. 3, 1905. Laws 1902, p. 1249, ch. 528, providing that a sale of any portion of a stock of merchandise other than in the ordinary course of trade in the regular and usual prosecution of the seller's business, or the sale of an entire stock of merchandise in bulk, shall be fraudulent as against the creditors of the seller, unless at least five days before sale a full and detailed inven

tory is made, and the purchaser makes explicit inquiry of the seller as to the names of creditors, and notifies them, etc., is in conflict with Const., art. 1, §§ 1, 6, and Const. U. S. Amend. 14, § 1, guarantying the equal protection of the laws and forbidding deprivation of property without due process of law.

In November, 1903, a corporation known as W. C. Loftus & Co., engaged in the retail clothing and tailoring business in the city of New York, sold to the defendant its entire stock, fixtures and lease for a consideration of $22,953.86. Within a few days thereafter a petition in involuntary bankruptcy proceedings was filed against it, and the plaintiff was elected trustee thereunder. At the time of the sale referred to chapter 523. p. 1249, of the laws of 1902 was in force, and it provided that:

"Section 1. A sale of any portion of a stock of merchandise other than in the ordinary course of trade in the regular and usual prosecution of the seller's business, or the sale of an entire stock of merchandise in bulk, shall be fraudulent and void as against the creditors of the seller, unless the seller and purchaser shall at least five days before the sale make a full and detailed inventory showing the quantity, and, so far as possible with the exercise of reasonable diligence, the cost price to the seller of each article to be included in the sale, and unless such purchaser shall at least five days before the sale, in good faith make full explicit inquiry of the seller as to the name and place of residence or place of business of each and every creditor of the seller and the amount owing each creditor, and unless the purchaser shall at least five days before the sale in good faith notify or cause to be notified personally or by registered mail each of the seller's creditors of whom the purchaser has knowledge, or can with the exercise of reasonable diligence acquire knowledge, of such proposed sale and of the stated cost price of merchandise to be sold and of the price proposed to be paid therefor by the purchaser. The seller shall at least five days before such sales file a truthful answer in writing of each and all of said inquiries.”

The plaintiff, as trustee in bankruptcy of the selling corporation, has brought this action to set aside the sale on the gronnd that it was made without complying with any of the provisions of the statute. The purchasing defendant interposes the demurrer that the complaint does not state facts sufficient to constitute a cause of action because the statute is unconstitutional. This claim of unconstitutionality is based (1) upon article 1, § 1. of our state constitution, which provides that "no member of this state shall be * deprived of any rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers;” (2) upon article 1, § 6, of our state constitution. which provides that no person shall be deprived of life, liberty or property without due process of law;" and (3) upon section 1 of the fourteenth amendment to the federal constitu

tion, which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities or citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

WERNER, J. (after stating the facts): Before proceeding to a critical view of the challenged statute, it may be profitable to make a few pertinent, though trite, observations on the nature, construction, aud effect of written constitutions. A written constitution is the fundamental expression of the sovereign will. Under our form of government that sovereign will resides in the people. A written constitution is not only the direct and basic expression of the sovereign will, but is the absolute rule of action and decision for all departments and offices of government in respect to all matters covered by it, and must control as it is written until it shall be changed by the authority that established it. It is true, as was said by Judge Cooley, that "the weeknesses of a written constitution are that it establishes iron rules which, when found inconvenient, are difficult of change; that it is often construed on technical principles of verbal criticism, rather than in the light of great principles; and that it is likely to invade the domain of ordinary legislation, instead of being restricted to fundamental rules." The logical corollary of the proposition that the constitution is the supreme law of the land is that the power to legislate is a purely delegated one, derived from the constitution and controlled by it. In the case at bar we are concerned with no quibbles of verbiage or technicalities of construction, but with the broad question whether an act of our legislature is repugnant to the iron rule" of our federal and state constitutions that no citizen shall be deprived of life, liberty or property," or be denied the "equal protection of the laws."

In the course of judicial interpretation, the words liberty" and "property," as used in the constitutions, have naturally and properly been given their most comprehensive signification, so that they embrace every form and phase of individual right that is not necessarily taken away by some valid law for the general good. "The term liberty,' as protected by the constitution, is not cramped into a mere freedom from physical restraint of the person of the citizen, as by incarceration; but it is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. People v. Marx, 99 N. Y. 377, 2 N. E. Rep. 29, 52 Am. Rep. 34. All laws. therefore, which impair or trainmel these rights, which limit one in his choice of a trade or profession, or confine him to work or live in a specified locality, or exclude him from his own house, or restrain his otherwise lawful movements (except as such laws may be passed

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in the exercise by the legislature of the police power), are infringements upon his fundamental rights of liberty, which are under constitutional protection. In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636. Liberty' includes the right to acquire property, and that means and includes the right to make and enforce contracts." State v. Loomis, 115 Mo. 307, 22 S. W. Rep. 350, 21 L. R. A. 789; Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. Rep. 427, 41 L. Ed. 832. The right to use, buy, and sell property is protected by the constitution, and "when the law annihilates the value of property, and strips it of its attributes by which alone it is distinguished as property, the owner is deprived of it according to the plainest interpretation, and certainly within the constitutional provision intended expressly to shield personal rights from the exercise of arbitrary power." Wynehamer v. People, 13 N. Y. 378, 398; People v. Otis, 90 N. Y. 48.

Let us now analyze the statute under scrutiny. Every sale (a) “of any portion of a stock of merchandise, other than in the ordinary course of trade in the regular and usual prosecution of the seller's business, or (b) the sale of an entire stock of merchandise in bulk, shall be fraudulent and void as against the creditors of the seller, unless (1) the seller and puchaser shall at least five days before the sale, (2) make a full and detailed inventory, (3) showing the quantity, and. so far as possible with the exercise of reasonable diligence, (4) the cost price to the seller of each article to be included in the sale, and unless (5) such purchaser shall at least five days before the sale in good faith make full, explicit inquiry of the seller as to the (6) name and place of residence or place of business of each and every creditor of the seller, and (7) the amount owing each creditor, and unless (8) the purchaser shall at least five days before the sale in good faith (9) notify or cause to be notified personally or by registered mail each of the seller's creditors of whom the purchaser has knowledge, or can with the exercise of reasonable diligence acquire knowledge of such proposed sale, and (10) of the stated cost price of merchandise to be sold, and (11) of the price to be paid therefor by the purchaser. (12) The seller shall at least five days before such sale file a truthful answer in writing of each and all of said inquiries." No one will bave the temerity to suggest that this drastic and cumbersome statute is not in restraint of the rights of "liberty" and "property." as those terms have been judicially declared to have been used in the federal and state constitutions. It is contended, however, that the restraint which it imposes upon these rights is justifiable under that shibboleth of legislatures and courts known as the police power." Far be it from us to deny the existence of that power or to attempt to define its extent. It will be our effort, rather, to show that the statute under consideration is in some particulars so thoroughly unrelated to the

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