* * * * be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence, and such di vorce would follow if the temptation to murder in this case were to be held by law an absolute defense of it. It is not so. To preserve one's life is, generally speaking, a duty, but it may be the plainest and the highest duty to sacrifice it. It is enough in a Christian country to remind ourselves of the Great Example which we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength or intellect or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. There is no path safe for judges to tread but to ascertain the law to the best of their ability, and to declare it according to their judgment, and if, in any case, the law appears to be too severe on individuals, to leave it to the sovereign to exercise that prerogative of mercy which the constitution has intrusted to the hands fittest to dispense it. It must not be supposed that, in refusing to admit temptation to be an excuse for crime, it is forgotten how terrible the temptation was, how awful the suffering, how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners' act in this case was wilful murder; that the facts as stated in the verdict are no legal justification of the homicide; and to say that, in our unanimous opinion, they are, upon this special verdict, guilty of murder. R. v. Dudley, 15 Cox C. C. 625, 14 Q. B. D. 273, 560, 54 L. J. m. c. 32, 52 L. T. 107, 33 W. R. 347, 49 J. P. 69, B. 357, C. 195, F. 111, Ke. 61, Mi. 131n. § 52. "Of Inability of Defendant to Perform His Legal Duty." (Eng. Queen's Bench, 1843.) Sea Encroachment. Error on conviction of failure to repair highway. LORD DENMAN, C. J. I think the defendant below is entitled to judgment. Both the road which the defendant is charged with liability to repair and the land over which it passes are washed away by the sea. To restore the road, as he is required to do, he must create a part of the earth anew. I do not rely much upon the argument that the ancient line of highway has been removed. But here all the materials of which a road could be made have been swept away by the act of God. Under those circumstances can the defendant be liable for not repair ing the road? We want an authority for such a proposition, and none has been found. Williams, Coleridge, and Wightman, JJ., concurred. Reversed. R. v. Bamber, 5 Q. B. (48 E. C. L.) 279, B. 356. (Mass. Sup. Judicial Ct., 1868.) Complaint for Standing a Vehicle in the Street more than twenty minutes, in violation of the Boston ordinance. Defendant was convicted, and excepted. GRAY, J. It is very clear that defendant was not proved to have violated the city ordinance on which he was prosecuted. No person transgresses the ordinance who does not voluntarily suffer his vehicle to stop on the street more than twenty minutes. The defendant, indeed, drove into S. Market St. more than twenty minutes before 4 o'clock, and intended to remain in that street until 4 o'clock. But he had the right to travel in the street, if he did not voluntarily suffer his vehicle to stop in it for the prohibited period. If he had arrived on his stand more than twenty minutes before 4 o'clock and voluntarily remained there with his wagon until that hour, or if he had voluntarily stopped his wagon for more than twenty minutes at any other place in the street, it would have been a violation of the ordinance. * * It appears that the defendant, while driving his wagon through the street towards his stand, was delayed by the crowding of other vehicles which he could not control for five or six minutes, and then drove on and occupied his stand. He did not voluntarily stop at all before arriving at his stand; he did not stop. on his stand but fifteen minutes before 4 o'clock; and after 4 o'clock, being a marketman, engaged in bringing vegetables into the city and selling them from his wagon at a stand occupied by him within. the established limits of the market, though in a public street, he is admitted to have had a right, by virtue of the exception in the ordinance, and of the St. of 1859, c. 211, to be and remain upon his stand with his wagon. New trial ordered. C. v. Brooks, 99 Mass. 434, B. 364. § 53. "That the Defendant was Mistaken as to the Facts." (Eng. Assize at Newgate, 1638.) Servant Taken for Burglar. In the case of Levet, indicted for the death of Frances Freeman, the case was, that William Levet being in bed and asleep in the night, his servant hired Frances Freeman to help her to do her work, and about twelve of the clock in the night, the servant going to let out Frances thought she heard thieves breaking open the door; she therefore ran up speedily to her master and informed him that she thought thieves were breaking open the door. The master rising suddenly and taking a rapier ran down suddenly; Frances hid herself in the buttery lest she should be discovered. Levet's wife spying Frances in the buttery cried out to her husband, "Here they be that would undo us." Levet runs into the buttery in the dark, not knowing Frances but thinking her to be a thief, and thrusting with his rapier before him hit Frances in the breast mortally, whereof she instantly died. This was resolved to be neither murder nor manslaughter nor felony. Levet's Case, Cro. Car. 538, 1 Hale P. C. 42, Foster C. L. 299, 1 Hawk. P. C. 84, B. 279, C. 85, Ke. 26, 3 L. 445. (Eng. Assize, 17-.) Statutory Proof Lacking. Indictment for having his majesty's canvas in possession without certificate of right, contrary to the statute 9 & 10 W. 3, c. 41. FOSTER, J. was of opinion that, though the clause of the statute which directs the sale of these things hath not pointed out any other way for indemnifying the buyer than the certificate; and though the second section seems to exclude any other excuse for those in whose custody they shall be found; yet still the circumstances attending every case which may seem to fall within the act ought to be taken into consideration; otherwise a law calculated for wise purposes may, by too rigid a construction of it, be made a handmaid to oppression. There is no room to say that this canvas came into the possession of the defendant by any act of her own. It was brought into family use in the lifetime of her husband, and it continued so to the time of his death; and by act of law it came to her. Things of this kind have been frequently exposed to public sale; and though the act points out an expedient for the indemnity of the buyers, yet probably few buyers, especially where small quantities have been purchased at one sale, have used the caution suggested to them by the act. And if the defendant's husband really bought this linen at a public sale, but neglected to take a certificate, or did not preserve it, it would be contrary to natural justice, after this length of time, to punish her for his neglect. He therefore thought the evidence given by the defendant proper to be left to the jury, and directed them that if, upon the whole of the evidence, they were of opinion that the defendant came to the possession of the linen without any fraud or misbehavior on her part, they should acquit her; and she was acquitted. Anon. Foster C. L. (3 Ed.) 439, B. 284. (Conn. Sup. Ct. of Errors, 1816.) Letting a Coach for Sunday Use unless for necessity or charity being made a misdemeanor by statute, the court held on a trial for violation of the statute that defendant must show in justification that a case of necessity or charity existed. This was held error. It was said by SWIFT, C. J. "The letting of a carriage on Sunday, on the ground of necessity or charity, is not prohibited by the statute. If then a man acts honestly on such principle, and really believes that the case of necessity or charity exists, he is not criminal. It is true, a man may be deceived and imposed upon by falsehood and misrepresentation; yet if he verily believes that the case exists, and acts on that ground, it is as much a deed of charity in him, if the fact does not exist, as if it does. It is a letting of the carriage as a matter of charity." Myers v. S., 1 Conn. 502, B. 302, 3 L. 550. (Ohio Sup. Ct., 1837.) Harboring Colored Person the property of another, in violation of statute. The indictment was sustained in the court below, and defendant appeals. WOOD, J. It is true that the statute upon which the indictment is founded omits the scienter, and the indictment covers all the facts enumerated in that statute. But this is not sufficient; it cannot be assumed that an act which, independent of positive enactment, involves no moral wrong, nay, an act that in many cases would be highly praiseworthy, should be made grievously criminal, when performed in total unconsciousness of the facts that infect it with crime. This court has determined differently. In the case of Anderson v. S., 7 Ohio 255, the plaintiff in error was indicted for uttering and publishing forged certificate of deposit, without averring his knowledge of such forgery. The statute under which the indictment was found does not, in express terms, make this knowledge a constituent of the crime. Nevertheless, the court held that the criminality could not exist without the knowledge, and that an indictment that did Inot aver it was defective. That case runs upon all fours with this, and the further investigation of the principles upon which it is based confirms the court in the conviction that it is correct. This judgment must be reversed for this cause. Birney v. S., 8 Ohio 230, B. 303. Milk Supposed to be Pure. (Mass. Sup. Judicial Ct., 1864.) Defendant was convicted and excepts. ment is upon St. 1864, c. 122, § 4, which provides, among other things, that "whoever sells or keeps or offers for sale adulterated milk or milk to which water or any foreign substance has been added," shall be punished by a fine as therein specified. The defendant contends that the commonwealth should have been held to prove on the trial that he committed the offense knowing the milk to be adulterated. But the language of the statute does not require such proof, and it is evident that the legislature did not intend that it should do so. The St. of 1863, c. 140, required such proof, and one of the reasons which induced the legislature to repeal it and substitute the existing statute for it undoubtedly was that they regarded it as impracticable in most cases to prove the knowledge, and that they also regarded it as reasonable under all the circumstances that the seller of milk take upon himself the risk of knowing that the article he offers for sale is not adulterated. It is of the greatest importance that the community shall be protected. against the frauds now practiced so extensively and skillfully in the adulteration of articles of diet by those who deal in them, and, if the legislature deem it important that those who sell them shall be held absolutely liable, notwithstanding their ignorance of the adulteration, we can see nothing unreasonable in throwing this risk upon them. It is the same risk which every man takes who sells intoxicating drinks; the law making him liable to the penalty although it is not proved that he knew that the liquors were intoxicating. C. v. Boynton, 2 Allen 160 [below]. Exceptions overruled. C. v. Farren, 9 Allen 489, F. 110. Similar case: C. v. Waite, § 7, holding this law valid. * * On (Mass. Sup. Judicial Ct., 1844.) Bigamy-Belief of Death. Defendant was indicted for and convicted of bigamy under R. S. c. 130, § 2, which, with some exceptions, imposes a penalty on any person who marries having a spouse living. Sec. 3 excepts from the operation of the statute "any person, whose husband or wife shall have been continually remaining beyond sea, or shall have voluntarily withdrawn from the other, and remained absent for the space of seven years together, the party marrying again not knowing the other to be living within that time. Defendant married Peter Mash Dec. 7, 1834; he left her Nov. 10, 1838, saying he would return to breakfast, and was not heard from, and was not found by diligent search and inquiry by defendant, who married again April 10, 1842. Peter Mash returned in May, 1842. learning that he was alive, defendant immediately left the other husband. She has always been of good character and virtuous conduct. She excepts to refusal of the court to charge the jury that honest belief of the death of Peter Mash constituted a defense. SHAW, C. J. Such belief might arise after a very short absence. But it appears to us that the legislature intended to prescribe a more exact rule, and to declare as law that no one should have a right, upon such ignorance that the other party is alive, or even upon such honest belief of his death, to take the risk of marrying again, unless such belief is confirmed by an absence of seven years. It was urged in the argument that, where there is no criminal intent, there can be no guilt; and, if the former husband was honestly believed to be dead, there could be no criminal intent. The proposition stated is undoubtedly correct in a general sense; but the conclusion drawn from it in this case by no means follows. Whatever one voluntarily does, he of course intends to do. If the statute has made it criminal to do any act under particular circumstances, the party voluntarily doing that act is chargeable with the criminal intent of doing it. On this subject, the law has deemed it so important to prohibit the crime of polygamy, and found it so difficult to prescribe what shall be sufficient evidence of the death of an absent person to warrant a belief of the fact, and as the same vague evidence might create a belief in one mind and not in another, the law bas also deemed it wise to fix a definite period of seven years. One, therefore, who marries within that time, if the other party be actually living, whether the fact is * |