receive them with any fraudulent intent. The case went to the jury in such a way as to enable the people to claim, that not only the $575 was received by the defendant with the intent to defraud Meeker, but that all the other moneys were received in the same way, and that the receipt of all the moneys had a tendency to show with what intent the $575 was received; and hence the defendant clearly had the right to show that he had no fraudulent intent in receiving any of it.

"The defendant, after answering that at the time he received the $575 he did not intend to defraud Meeker, was also asked to state his intention at the time he received it, and the question was objected to on the part of the people, and the objection was sustained. We think that ruling was also erroneous. Upon the facts of the case as they were developed at the trial, it was claimed by the defendant that when he received the $575 it was his intention to replace the stock to respond to Meeker whenever called upon for the stock, and that he was at the time able to do so. That was a theory he had a right to prove if he could, and the proof would bear upon the final issue whether he intended to cheat and defraud him, and hence he should have been permitted to answer the question.

"The judge charged the jury as follows: 'If you find that the defendant made the representations charged in the indictment, and that they were false, and that the defendant knew they were false when he made them, then the law presumes the fraudulent intent.' That portion of the charge was objected to by the defendant and we think the exception well founded. The crime of false pretenses is not made out by simply showing that the representations charged in the indictment were made, and that they were false, and that the defendant knew them to be false. The jury, from those facts and from all the other facts, may infer a fraudulent intent; but the law does not presume a fraudulent intent; that is to be found as a fact by the jury, and is not an inference of law."

Judge Thompson says: "It has been held, on the trial of an indictment for an assault and battery with intent to commit a rape, that the accused might testify as to what his intention was in the commission of the assault and battery. So, on the trial of an indictment for larceny, it is competent for the defendant to testify as to what his intention was at the time the goods came

into his possession. So, where the question concerns the intent with which an assignment of property has been made, it is competent for the assignor to testify what his intentions were. So, where the validity of a deed, or of an official act, is in question, it is competent for the grantor to testify that he executed it in good faith. And in general, it may be stated that, where the intent is an essential element in the charge of crime, the prisoner has the right to testify as to intent in doing the act. Nor is it necessary to the operation of the rule that the witness should be a party to the action. More broadly, the rule is, that where the motive of the witness, in performing a particular act or making a particular declaration, becomes a material issue in the case, or reflects important light upon such issue, he may himself be sworn in regard to it, notwithstanding the difficulty in furnishing contradictory evidence, and notwithstanding the diminished credit to which his testimony may be entitled as coming from the mouth of an interested party. Some courts, however, hold that, where a party takes the stand as a witness in his own behalf in civil and criminal cases, it is incompetent for him to testify as to an uncommunicated opinion, belief or motive on which he acted. It is clear that a party cannot be allowed to testify to his undisclosed intent in order to alter the effect of that which was matter of contract, representation, or estoppel, on which the other party had a right to rely." 1 Thomp. Trials, § 383, citing Greer v. State, 53 Ind. 420; White v. State, 53 Ind. 595; Watkins v. Wallace, 19 Mich. 57; Thacher v. Phinney, 7 Allen, 146; Cortlandt County Supt. of Poor v. Herkimer County Supt. of Poor, 44 N. Y. 22; Kerrains v. People, 60 N. Y. 221, 14 Am. Rep. 158; People v. Baker, 96 N. Y. 340; Seymour v. Wilson, 14 N. Y. 567; Homans v. Corning, 60 N. H. 418; McKown v. Hunter, 30 N. Y. 625; Starin v. Kelly, 88 N. Y. 418; Griffin v. Marquardt, 21 N. Y. 121; Forbes v. Waller, 25 N. Y. 430; Columbus v. Dahn, 36 Ind. 330; Whizenant v. State, 71 Ala. 383; Ford v. State, 71 Ala. 385; McCormick v. Joseph, 77 Ala. 236.

In Forbes v. Waller, supra, it was held proper to prove by the assignor his object and intent in making the assignment, and to prove by him that it was to prevent a sacrifice of the general principle is where the motive of a witness in performing a particular act or making a particular declaration becomes a material issue in a cause, or reflects important light upon such issue, he

may himself be sworn in regard to it, notwithstanding the difficulty of furnishing contradictory evidence, and notwithstanding the diminished credit to which his testimony may be entitled as coming from the mouth of an interested witness. McKown v. Hunter, supra.

289. Digest Form of the Present Rule.-In digest form the rule would find expression in this language: When a criminal intent is imputed to a person or forms an element of a crime with which he is charged, he is privileged to deny the intent when on examination as a witness in his own behalf, and he may support his denial of this criminal intent by his own testimony as to the alleged offense. Babcock v. People, 15 Hun, 347; Wheelden v. Wilson, 44 Me. 1; Quimby v. Morrill, 47 Me. 470; Snow v. Paine, 114 Mass. 520; White v. State, 53 Ind. 595; People v. Farrell, 31 Cal. 576; Bode v. State, 6 Tex. App. 424; Blodgett Paper Co. v. Farmer, 41 N. H. 403; Edwards v. Currier, 43 Me. 474; Shockey v. Mills, 71 Ind. 288, 36 Am. Rep. 196; White v. Tucker, 16 Ohio St. 468; Jones v. Howland, 8 Met. 377, 41 Am. Dec. 525; Lawton v. Chase, 108 Mass. 241; Miner v. Phil lips, 42 Ill. 123; Watkins v. Wallace, 19 Mich. 57; Berkey v. Judd, 22 Minn. 287; Greer v. State, 53 Ind. 420; Bloch v. Price, 24 Mo. App. 14.

§ 290. When Conviction may be Had in the Absence of Criminal Intent.-A malicious or criminal intent is not an essential ingredient of every crime. Thus gross carelessness or momentary inattention may result in great loss of life, and there may be an entire absence of criminal intent; and yet the party offending may be prosecuted criminally and convicted on evidence showing mere carelessness or inattention. As an illustration, there was no evidence of criminal or malicious intent on the part of the brakeman Parker, who caused the fearful destruction of life on the Hudson River Railroad. Still, he was indicted, tried and sentenced as a criminal. This rule which repudiates the evidence of a criminal intent is vindicated by the recent case of People v. Kibler, 106 N. Y. 321.

The act alone, irrespective of its motive, constitutes the crime. That conclusion was necessarily involved in the decision of People v. Cipperly, 101 N. Y. 634, 37 Hun, 323.

There is no doubt that in civil cases the legislature can make certain facts prima facie evidence of another fact. Howard v.

Moot, 64 N. Y. 262; Hand v. Ballou, 12 N. Y. 543. And it has been held competent for the legislature to provide that certain facts, having a tendency to prove the existence of another fact, shall, in criminal cases, be prima facie evidence of the latter fact. Com. v. Williams, 6 Gray, 1. But the court was careful to hold that the presumption might be repelled by the circumstances or by other proofs. Com. v. Wallace, 7 Gray, 222; Com. v. Rowe, 14 Gray, 47. The legislature cannot make certain facts conclusive evidence which in their nature are not so. People v. Lyon, 27 Hun, 180. Evidence to secure a conviction should be such as to satisfy "the judgment of his peers," or of whatever tribunal that determines the fate of the accused. The various legislatures may prescribe rules for the admission of evidence, but cannot compel the trial court to hold it conclusive of the defendant's guilt, without regard to that court's conviction or judgment as to its conclusiveness. If the legislature can compel the courte to render judgment contrary to their convictions of the truth, produced by the evidence, then the legislative power can coerce the judicial power; a proposition destructive of the co-ordinate departments of the government. People v. Cipperly, 37 Hun,

319.

291. Time not Necessary to Form Criminal Intent.No time is too short for a wicked man to frame in his mind his scheme of murder, and to contrive the means of accomplishing it. But this expression must be qualified lest it mislead. It is true that such is the swiftness of human thought, that no time is too short, in which a wicked man may not form a design to kill, and frame the means of executing his purpose. Yet this suddenness is opposed to premeditation and a jury must be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards, and the jury must find the actual intent, that is to say, the fully formed purpose to kill, with so much time for deliberation and premeditation, as to convince them that this purpose is not the immediate offspring of rashness and impetuous temper, and that the mind has become fully conscious of its own design. If there be time to frame in the mind, fully and consciously, the intention to kill, and to select the weapon or means of death, and to think and know beforehand, though the time be short, the use to be made of it, there is time to deliberate and premeditate. Weston v. Com. 111 Pa. 251.

$292. Review of the Authorities.-A review of the decisions. cannot be uninstructive, thus: In the case of Com. v. Mash, 7 Met. 472, Judge Shaw, in reply to a suggestion that where there is no criminal intent there can be no guilt, said: "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 an act under particular circumstances, the party voluntarily doing that act is chargeable with the criminal intent to do that act." Com. v. Gray, 150 Mass. 327.

One of the most singular cases that can be found in the annals of criminal law sustaining any affinities to this topic, is State v. Myers, 82 Mo. 558. As this case was appealed on the express ground that the trial court admitted incompetent evidence, and as the opinion which determined that appeal contains a singularly exhaustive citation of authority and met with the concurrence of the entire court, I subjoin the text of the decision as reported.

"The action of the trial court in admitting certain evidence is assigned for error. To properly understand this issue it is important to explain the nature of the 'trick' by which the defendant is charged to have attempted to obtain money from Beard. Beard's testimony was, that the defendant came into the store and asked for a nickel's worth of tobacco. It was handed to him, and in payment he handed Beard a two-dollar bill. Beard returned him a silver dollar and ninety-five cents in change. Defendant dropped the dollar in silver in his pocket, and said he had found a nickel, and laying it on the counter with the other ninety-five cents, said he would rather have a dollar piece for it. Thereupon Beard took from the drawer a silver dollar and laid it down. Whereat the defendant remarked that he believed he would rather have the two dollar bill than the silver, and requested Beard to give it to him and take the two dollars in silver on the counter. Whereat Beard reminded him that he had put the dollar in his pocket, and to hand him that. The prisoner then took up his dollar in change and walked out. The prosecuting attorney then introduced other witnesses, by whom he proved, against the objection of defendant, that on the same day near the same time, both before and after the act in question, in the same village, the defendant attempted the same trick on other clerks, and was heard to say to his companion that he had 'knocked them down