This was a rule to quash a coroner's inquisition which had been removed into this court by certiorari. The inquisition alleged that the defendants were the trustees of a public road under an act of Parliament; that it was their duty to contract for the due reparation of the said road; that they feloniously did neglect and omit to contract for the repair of the same, whereby it became very miry, ruinous, deep, broken, and in great decay; and that a cart, which the deceased was driving along the road, fell into a hole in the road, and by reason thereof the deceased was thrown out, and sustained the injuries of which he afterwards died,

Charnock showed cause. This case is not distinguishable from those of persons who have the charge of machinery at mines, of signals or locomotives on railways, and the like; and there are many precedents of indictments for manslaughter in such cases where death has been occasioned by a neglect of duty on the part of the persons so intrusted. R. v. Barrett, 2 Car. & K. 343; R. v. Haines, Id. 368; R. v. Gregory, 5 B. & Ad. 555. Here a public duty was cast upon the trustees, and they were authorized to raise money by rates for the purpose; and if their neglect of duty has caused the death of another they are guilty of manslaughter.

Hayes, contra, was not called upon.

Lord CAMPBELL, C. J. The cases cited show a personal duty, the neglect of which has directly caused death; and, no doubt, where that is the case, a conviction of manslaughter is right. But how do those apply to trustees of a highway? How can it be said that their omission to raise a rate, or to contract for the reparation of the road, directly causes the death? If so, the surveyors or the inhabitants of the parish would be equally guilty of manslaughter; for the law casts upon them the duty of keeping the roads in repair. To uphold this inquisition would be to extend the criminal law in a most alarming manner, for which there is no principle or precedent. PATTESON, J. This is really too extravagant.

WIGHTMAN, J., concurred.

ERLE, J. In all the cases of indictment for manslaughter, where the death has been occasioned by omission to discharge a duty, it will be found that the duty was one connected with life, so that the ordinary consequence of neglecting it would be death. Such are the cases of machinery at mines, of engine drivers, or the omission to supply food to helpless infants.

Inquisition quashed.

CHAPTER V.

INTENT AS AFFECTED BY CONDITIONS.

SECTION 1.-IGNORANCE OR MISTAKE OF LAW.

REX v. THURSTON. X

(King's Bench, 1649. 1 Lev. 91.)

Indictment of murder, and on a special verdict found at the Assizes at Bury, the case was: In Hillary Term, 1659, a latitat issued to arrest him, returnable in Easter Term, 1660, on which the twenty-ninth of May he was arrested by a warrant thereupon, and upon that arrest the bailiff was killed; and afterwards an act is made for the confirmation of all judicial proceedings, which related to the first day of the Parliament, viz., 15 April, 1660, and the sole question was, if by the relation of the act which made the proceedings legal and the arrest good (which else had been void and without authority), this killing be murder. And it was argued at the bar by Kelynge, for the King, and by Jones, for the defendant: And Kelynge said, that by relation all the process is made good, for it shall relate to the first day of the Parliament; Jones argued the act should relate to the first day of the Parliament, but not to such intent as to make it murther ex post facto, which was not so when the fact was done. The court said nothing; but afterwards, in Easter Term, 16 Car. II, I heard Thurston plead his pardon of this murder, whereby it seems as if the opinion of the court was against him.

(Supreme Court of North Carolina, 1849. 32 N. C. 336.)

PEARSON, J. "Ignorantia legis neminem excusat." Every one competent to act for himself is presumed to know the law. No one is allowed to excuse himself by pleading ignorance. Courts are compelled to act upon this rule, as well in criminal as civil matters. It lies at the foundation of the administration of justice. And there is no telling to what extent, if admissible, the plea of ignorance would be car

1 The opinion only is printed.

ried, or the degree of embarrassment that would be introduced into every trial, by conflicting evidence upon the question of ignorance.

In civil matters, it is admitted, the presumption is frequently not in accordance with the truth. The rules of property are complicated systems-the result, "not of the reason of any one man, but of many men put together"; hence they are not often understood, and more frequently not properly applied, and the presumption can only be justified upon the ground of necessity. But in criminal matters the presumption most usually accords with the truth. As to such as are mala in se, every one has an innate sense of right and wrong, which enables him to know when he violates the law, and it is of no consequence if he be not able to give the name by which the offense is known in the lawbooks, or to point out the nice distinctions between the different grades of offense. As to such as are "mala prohibita," they depend upon the statutes printed and published and put within the reach of every one; so that no one has a right to complain if a presumption, necessary to the administration of the law, is applied to him. To allow ignorance as an excuse would be to offer a reward to the ignorant.

The defendant voted, when he was not entitled by law to vote. He is presumed to know the law. Hence he voted, knowing that he had no right, and, acting with this knowledge, he necessarily committed a fraud upon the public-in the words of the act, he knowingly and fraudulently voted when he was not entitled to vote. It being proved on the part of the state that he voted, not having resided within the bounds of the company for six months next preceding the election, a case was made out against him.

He offered to prove, for the purpose of rebutting the inference of fraud, that he had stated the facts to a respectable gentleman, who advised him he had a right to vote. His honor held the testimony inadmissible. We concur in that opinion.

The evidence had no tendency to rebut the inference of fraud, for _the_inference was made from his presumed knowledge of the law, and that presumption could not be met by any such proof, without introducing all the evils which the rule was intended to avoid. The question, in effect, was: Shall a man be allowed, in excuse of a violation of the law, to prove that he was ignorant of the very law under which he professed to act, and under which he claimed the privilege of voting? If he was not ignorant of the law, and that he cannot be heard to allege, then he voted knowingly, and, by necessary inference, fraudulently.

An indictment for extortion charges that the defendant received the fee "unlawfully, corruptly, deceitfully, and extorsively." This averment the state must prove. It is done by showing that the defendant received what the law does not allow him to take; for the presumption is "he knew the law upon the subject of fees to be taken. by himself," and the inference from such knowledge is that he acted "corruptly and deceitfully" (words quite as strong as knowingly and

fraudulently), unless it is shown that he did so by some inadvertence or mistake in calculation. He cannot excuse himself for taking more than the legal fee by saying that he was misled by the advice of an attorney. If such, or like, excuses were admitted, it would hardly ever be possible to convict. He might always contrive to ground his conduct upon misapprehension or improper advice. State v. Dickens, 2 N. C. 406. It would be a different question if the defendant had stated the facts to the judges of the election, and they had decided in favor of his right to vote; for their decision would rebut the presumption of knowledge on his part in a manner contemplated by law.

The case was ably argued for the defendant. It was insisted that it was necessary for the state to aver and prove that the defendant voted knowingly and fraudulently. That position is admitted. The reply is the averment was made and was proved; for, proof being made that he voted when he was not entitled to vote, the presumption is that he knew the law, and fraud is the necessary inference, as corruption and deceit were in the case above cited. It cannot be contended that, to fix him with knowledge, the state must show that some one read and explained the law to him; or, to fix him with fraud, that it must be proven he had been bribed. If so, the statute is a dead letter. Our attention was called to the fact that the act of 1814 (Laws 1844-45, p. 67, c. 43), making the offense indictable, uses the words, "knowingly and fraudulently," which words are not used in the act of 1777, imposing a penalty. To incur the penalty under the act of 1777, the voting must be unlawful, and it must be done knowingly and fraudulently, in the sense above explained. If one, having a deed for 50 acres of land, votes in the Senate, and it turns out that the deed only contains 49 acres, the penalty is not incurred, unless he knew the fact at the time he voted. So, if one votes for a constable, and it turns out that the dividing line includes him in another company, there is not in either case that criminal intent which is a necessary ingredient of the offense, whether it be punished by a penalty or by indictment. The act of 1844 expresses in so many words what the law would have implied. It is a strained inference that by so doing the Legislature intended to make the case of illegal voting an "exception," and to take it out of the rule "ignorantia legis," a rule which has always been acted upon in our law, and in the laws of every nation of which we have any knowledge, and without which, in fact, the law cannot be administered. The inference sought to be made results in this: The Legislature did not intend the act of 1814 to be carried into effect. It was intended to be "brutum fulmen." No reason has been suggested for making an exception in this case. The only additional qualification to that of a voter for a member of the House of Commons is a residence of six months in the captain's company.

This is not complicated or difficult to be understood. Why make the exception, and offer a reward for ignorance in this particular case?

Such a construction cannot be admitted, unless the lawmakers had declared their intention by positive enactment.

PER CURIAM. There is no error in the court below, and the same must be so certified."

CUTTER v. STATE.

(Supreme Court of New Jersey, 1873. 36 N. J. Law, 125.)

The

The opinion of the court was delivered by BEASLEY, C. J. defendant was indicted for extortion in taking fees to which he was not entitled, on a criminal complaint before him as a justice of the peace. The defense which he set up, and which was overruled, was that he had taken these moneys innocently, and under a belief that by force of the statute he had a right to exact them.

This subject is regulated by the twenty-eighth section of the act for the punishment of crimes. Nix. Dig. 197. This clause declares that no justice or other officer of this state shall receive or take any fee or reward to execute and do his duty and office but such as is or shall be allowed by the laws of this state, and that "if any justice, etc., shall receive or take, by color of his office any fee or reward whatsoever, not allowed by the laws of this state, for doing his office, and be thereof convicted, he shall be punished," etc.

If the magistrate received the fees in question without any corrupt intent, and under the conviction that they were law fully his due, I do not think such an act was a crime by force of the statute above cited.

But it is 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 offense, is dependent on a

2 Accord: Illegal voting, McGuire v. State, 7 Humph. (Tenn.) 54 (1846); keeping gaming house, Winehart v. State, 6 Ind. 30 (1854); statutory larceny, State v. Welch, 73 Mo. 284, 39 Am. Rep. 515 (1880); bigamy, People v. Weed, 29 Hun (N. Y.) 628 (1883); murder, Weston v. Commonwealth, 111 Pa. 251, 2 Atl. 191 (1886); opening grave, State v. McLean, 121 N. C. 589, 28 S. E. 140, 42 L. R. A. 721 (1897); unlawful discrimination, State v. Railway, 122 N. C. 1052, 30 S. E. 133, 41 L. R. A. 246 (1898); compounding crime, State v. Carver, 69 N. H. 216, 39 Atl. 973 (1897); false imprisonment, Begley v. Commonwealth (Ky.) 60 S. W. 847 (1901). Cf. Commonwealth v. Bradford, 9 Metc. (Mass.) 268 (1845).

2 Part of the opinion relating to another point is omitted.