State (Fenner, Complainant,) v. Luther

Counsel

Miner and Gerald, for defendant, in support of the exceptions: — The Judge below erred in refusing to instruct the jury substantially as requested, inasmuch as the four propositions are a series of sound legal principles, applicable to the case at bar. He erred, also, in instructing them in the manner and to the effect shown by the record. He misinterpreted the statute, the intent of which was to make the taking of growing fruit and vegetables, with a felonious intent, a larceny — an act which, under the common law, was simply trespass. The words "maliciously" and "wantonly," which qualify other clauses of the statute, but which are not found in the clause under consideration, were doubtless omitted through inadvertence. By the common law, a criminal intent is necessary to render any act criminal. The common law is not to be repealed by implication, but only by express enactment. Surely the legislature could not have intended to change what had theretofore been a simple trespass into a criminal offence, when a party honestly believed he was taking his own property. Statutes which change the common law are to be construed strictly. Have the legislature the power, if they have the will, to create by statute a crime, which lacks the requisite of all crime, to wit, a criminal intent? James Tillinghast, for complainant, contra: — I. The defendant's acts throughout were unlawful, as he must have known. This is manifest from the recital of the facts in the record. Hence the defendant's mere belief that he was exercising his right, supposing, against all probability, that he could honestly have had such a belief, is no justification. Says Lord Mansfield, in Rex v. Woodfall, 5 Bur. 2,667, "Where the act is in itself unlawful, the proof of justification or excuse lies on the defendant, and on failure thereof, the law implies a criminal intent." II. This is particularly so under the statute (Rev. Stat. ch. 214, § 20, p. 537) which, in its first clause, under which this complaint is brought, purposely omits the words maliciously or wantonly, used in other clauses, defining other offences, and makes the act here complained of criminal, if done "without the consent of the owner."