(Supreme Court of Arkansas, 1859. 20 Ark. 289.)

Mr. Justice COMPTON delivered the opinion of the court.

Joshua Goff was indicted in the Crawford circuit court for laboring on the Sabbath, etc. The trial resulted in his acquittal, and the state appealed.

The facts as set out in the bill of exceptions, are briefly these: Goff was engaged cutting and binding wheat-a negro man cutting and Goff binding after him-on Sunday. For a week previous to the cutting, Goff was swapping work in harvest with his neighbors, who were afterwards to help him. Goff was a poor man, and had no cradle of his own, and waited to get one from his neighbor. When his neighbor quit cutting on Saturday evening, Goff got the cradle and hired the negro to cut for him the Sunday following. The weather was rather unsettled; rained the next day. Goff's wheat was very ripe and wasting, and from its appearance then had been ripe enough to cut four or five days before that time. This was all the evidence adduced on the trial.

The court, on motion of attorney for the state, charged the jury: (1) That if they believed from the evidence that Goff was laboring in and about tying up wheat on Sunday, etc., within one year next before the finding of the indictment, and that said labor was other services than customary household duties, of daily necessity, comfort, or charity, they should find him guilty.

(2) That the mere fact of Goff being a poor man, and having no cradle of his own, would not justify him in having his wheat cut and tying it up on Sunday.

On motion of Goff, and against the objection of the attorney for the state, the court further charged the jury:

(1) That Goff had a right to preserve his property from waste on the Sabbath day, and if his property was going to waste, and likely to be lost by any unforeseen or unavoidable circumstance, he was justifiable in laboring to preserve it.

(2) That if the jury believe Goff could not have saved his wheat on any other day, and it was necessary either to do so on Sunday or suffer it to be lost, they must acquit.

The statute provides that every person who shall be found laboring

men." Held, by the whole court, that the prisoners were guilty of

murder. In U. S. v. Holmes, 1 Wall. Jr. (U. S.) 1, Fed. Cas. No. 15,383 (1842), sailors and passengers having suffered shipwreck together, the sailors threw some of the passengers overboard to keep the boat from sinking, and, on an indictment for manslaughter, Baldwin, J., charged the jury that seamen had no right, even in cases of extreme peril, to sacrifice the lives of the passengers to preserve their own, and that, when it became necessary that some person should be sacrificed to preserve the lives of the company, the victims should be chosen by lot.

on the Sabbath day, or shall compel his apprentice, servant, or slave to labor or perform other services than customary household duties of daily necessity, comfort, or charity, shall be deemed guilty of a misdemeanor, etc. Gould's Dig. p. 373, c. 51, art. 5, § 1.

From an examination of the testimony it is manifest that there was no evidence whatever conducing to prove such a necessity for laboring on the Sabbath as is contemplated by the statute, nor of such necessity as is contemplated by the instructions given the jury at the instance of Goff. It was not shown that he even tried to procure a cradle, and from poverty or any other cause did not succeed. He was laboring for others when he should have been at work for himself, and "waited" until Saturday night to get a cradle.

The husbandman should look forward to the ripening of his grain as an event which must happen, and should make such timely provision for the harvest as not to violate the Sabbath. This is a duty enjoined alike upon the poor and the rich.

The instructions given by the court for Goff, if correct, were abstract, and under the circumstances were well calculated to mislead the jury.

The judgment must be reversed, and the cause remanded, with instructions to grant the state a new trial.

All crimes have their conception in a corrupt intent and have their consummation and issuing in some particular fact, which, though it be not the fact at which the intention of the malefactor levelled, yet the law giveth him no advantage of the error, if another particular ensue of as high a nature.-Bacon's Maxims, Reg. 15.

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"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. The mental element of most crimes is marked by one of the words 'maliciously,' 'fraudulently,' 'negligently,' or 'knowingly,' but it is the general-I might, I think, say, the invariable-practice of the Legislature to leave unexpressed some of the mental elements of crime. In all cases whatever, competent age, sanity, and some degree of freedom from some kinds. of coercion are assumed to be essential to criminality; but I do not believe they are ever introduced into any statute by which any particular crime is defined. The meaning of the words 'malice,' 'negligence,' and 'fraud,' in relation to particular crimes, has been ascertained by numerous cases. Malice means one thing in relation to murder, another in relation to the malicious mischief act, and a third in relation to libel; and so of fraud and negligence.

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"With regard to knowledge of fact, the law, perhaps, is not quite. so clear; but it may, I think, be maintained in every case knowledge of fact is to some extent an element of criminality as much as competent age and sanity. To take an extreme illustration: Can any one doubt that a man who, though he might be perfectly sane, committed what would otherwise be a crime in a state of somnambulism, would be entitled to be acquitted? And why is this? Simply because he would not know what he was doing. A multitude of illustrations of the same sort might be given. I will mention one or two glaring

ones. Levets' Case, 1 Hale, 474, decides that a man who, making a thrust with a sword at a place where, upon reasonable grounds he supposed a burglar to be, killed a person who was not a burglar, was held not to be a felon, though he might be (it was not decided that he was) guilty of killing per infortunium, or possibly se defendendo, which then involved certain forfeitures. In other words, he was in the same situation, as far as regarded the homicide, as if he had killed a burglar. In the decision of the judges in McNaghten's Case, 10 Cl. & F. 200, it is stated that if, under an insane delusion, one man killed another, and if the delusion was such that it would, if true, justify or excuse the killing, the homicide would be justified or excused. This could hardly be if the same were not law as to a sane mistake. A bona fide claim of right excuses larceny, and many of the offenses against the malicious mischief act. Apart, indeed, from the present case, I think it may be laid down as a general rule that an alleged offender is deemed to have acted under that state of facts which he in good faith, and on reasonable grounds believed to exist when he did the act alleged to be an offense.

"Though this phrase (non est reus, nisi mens sit rea) is in common use, I think it most unfortunate, and not only likely to mislead, but actually misleading, on the following grounds: It naturally suggests that, apart from all particular definitions of crimes, such a thing exists as a mens rea, or 'guilty mind,' which is always expressly or by implication involved in every definition. This is obviously not the case, for the mental elements of different crimes differ widely. 'Mens rea' means, in the case of murder, malice aforethought; in the case of theft, an intention to steal; in the case of rape, an intention to have forcible connection with a woman without her consent; and in the case of receiving stolen goods, knowledge that the goods were stolen. In some cases, it denotes mere inattention. For instance, in the case of manslaughter by negligence, it may mean forgetting to notice a signal. It appears confusing to call so many dissimilar states of mind. by one name. It seems contradictory indeed to describe a mere absence of mind as a mens rea, or 'guilty mind.' The expression, again, is likely to, and often does, mislead. To an unlegal mind it suggests that by the law of England no act is a crime which is done from laudable motives; in other words, that immorality is essential to crime. It will, I think, be found that much of the discussion of the law of libel in Shipley's Case, 4 Doug. 73, 21 St. Tr. 847, proceeds upon a more or less distinct belief to this effect. It is a topic frequently insisted upon in reference to political offenses, and it was urged in a recent notorious case of abduction, in which it was contended that motives said to be laudable were an excuse for the abduction of a child from its parents. Like most legal maxims, the maxim on 'mens rea' appears to me to be too short and antithetical to be of much practical value. It is, indeed, more like the title of a treatise than a practical rule. I have tried to ascertain its origin, but have not succeeded in

doing so. It is not one of the 'regulæ juris' in the digests. The earliest case of its use I have found is in the Leges Henrici Primi, v. 28, in which it is said: 'Si quis per coactionem abjurare cogatur quod per multos annos quiete tenuerit non in jurante set cogente perjurium erit. Reum non facit nisi mens rea." In Broom's Maxims the earliest authority cited for its use is 3 Inst. c. 1, fol. 10. In this place it is contained in a marginal note, which says that, when it was found that some of Sir John Oldcastle's adherents took part in an insurrecion 'pro timore mortis et quod recesserunt quam cito patuerant,' the judges held that this was to be adjudged no treason, because it was for fear of death. Coke adds: 'Et actus non facit reum nisi mens sit rea. This is only Coke's own remark, and not part of the judgment. Now Coke's scraps of Latin in this and the following chapters are sometimes contradictory. Notwithstanding the passage just quoted, he says in the margin of his remarks on opinions delivered in Parliament by Thyrning and others in the 21 R. 2: 'Melius est omnia mala pati quam malo consentire' (22-23), which would show that Sir J. Oldcastle's associates had a mens rea, or 'guilty mind,' though they were threatened with death, and thus contradicts the passage first quoted. It is singular that in each of these instances the maxim should be used in connection with the law relating to coercion."

Extract from the opinion of STEPHEN, J., in Reg. v. Tolson, 23 Q. B. Div. 168 (1889).

SECTION 2.-DISTINCTION BETWEEN INTENT AND

MOTIVE.

SCHMIDT v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit, 1904. 133 Fed. 257, 66 C. C. A. 389.) GILBERT, Circuit Judge. The plaintiff in error was indicted and prosecuted in the United States Circuit Court for the District of Washington upon an indictment containing ten counts, in each of which he was charged with swearing falsely in certain naturalization proceedings pending in the superior court of the state of Washington for Walla Walla county.

Error is assigned to the refusal of the court to instruct the jury "that, when the evidence fails to show any motive to commit the

1 "The original source is S. Augustinus Sermones, No. 180, c. 2 (Migne Patrol, vol. 38, col. 974): 'Ream linguam non facit nisi mens rea.' This passes into the Decretum C. 3, C. 22, qu. 2. The author of the Leges took it from some intermediate book in which the linguam may possibly have disappeared." Pollock & Maitland's Hist. Eng. Law, vol. 2, p. 474, note 5.

2 Part of the opinion is omitted.