enter it. I think the circuit court should proceed to judgment. P. v. Roby, 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270, Kn. 51.

The constitutionality of such statutes is undoubted; it is merely a question as to the policy and intent of the statute. C. v. Waite, § 7.

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(Ore. Sup. Ct., 1890.) Intent-Agent-Mistake-Bartender Without License. Defendant and Scott were jointly indicted for selling liquor without a license, defendant only was arrested and convicted. LORD, J. On behalf of the defendant, it is contended, that he was simply a servant or employe of Scott's, and had no interest in the business, or the result of the sales of liquor, and honestly believed his employer had procured a license, and was misled by him, he could have no notice or intention to violate the law, without which his act could not constitute a criminal offense. The contention, therefore, is that to make the transaction criminal, there must be both the will and act entering into the transaction. The language of the statute is absolute and unconditional. Its purpose is to compel every person who engages in the sale of intoxicating drinks first to obtain a license, as required by the statute; otherwise he acts at his peril. Statutes of this character are in the nature of fiscal and police regulations, and impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which will render violation impossible. P. v. Roby, 52 Mich. 579 [above].

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Judgment affirmed. S. v. Chastian, 19 Ore. 176, 23 Pac. 863.

§ 43. "Specific Intent, Which Must Generally be Direct."

(Eng. C. C. R., 1824.) A Night Watchman Attempting to Arrest a Burglar discovered in the shop at night, the latter struck the watchman twice with a crowbar and then ran away, telling him to sit still or it would be worse for him. On indictment for assault with intent to murder, maim and disable, the jury found that defendant intended only to disable temporarily till he could escape; and on this finding, all the judges except Graham and Garrow, BB., held the conviction wrong. R. v. Boyce, 1 Moody 29, B. 182.

(Ir. Assize, 1832.) Indictment for Maliciously Killing a Horse. The evidence showed that defendant shot at prosecutor. BUSCHE, C. J. Under the act [9 Geo. IV. c. 56, § 17] the offense must be proved to have been done maliciously, and malice implies intention. Here the proof negatives the intention of killing the horse. The prisoner must therefore be acquitted. R. v. Kelly, 1 Crawford & Dix 186, B. 182.

Drunkenness may prevent formation of this specific intent. P. v. Walker, § 57: Reagan v. S., § 57. In burglary specific intent is essential, see Harvick v. S., § 41, and several cases, § 115. In larceny it is the same, §§ 140, 143, 144.

(Mass. Sup. Judicial Ct., 1849.) Wilful and Malicious Distin

guished. WILDE, J. This is an indictment for malicious mischief wherein the defendant is charged with the wilful and malicious shooting and severely injuring the mare of one Robert Noble contrary to the R. S., c. 126, § 39. The evidence is not reported; but whatever it was the court, in the instruction to the jury, defined the word "maliciously" in said section to mean "the wilfully doing of any act prohibited by law, and for which the defendant had no lawful excuse; and that moral turpitude of mind was not necessary to be shown." If this definition of the crime charged was correct it would follow that the words "wilfully and maliciously" were intended by the legislature to be understood as synonymous, and that the statute is to be construed in the same manner as it would be if the word "maliciously" had been omitted. Such a construction we are of opinion cannot be sustained, for if it could be it would follow that a person would be liable to be punished criminally and with great severity for every wilful trespass, however trifling the injury might be to the personal property of another, which could not be justified or excused in a civil action against him for the recovery of damages by the owner. The learned judge was probably of opinion that if the mare was injured, as alleged, by the discharge of a gun loaded with powder and shot, that, ipso facto would be conclusive proof of malice. But that question we think should have been submitted to the jury. New trial granted. C. v. Walden, 3 Cush. 558, C. 118.

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(Tex. Civ. App., 1890.) Convicted of Assault Intending to Murder. "Murder may be committed although a specific intent to kill the deceased does not exist in the mind of the slayer. If the intent be to inflict upon the person killed serious bodily injury, which may cause his death, the homicide may be murder, although a specific intent to kill may not be shown. Willson, Cr. St. §§ 1039, 1041. But to constitute the offense of an assault with intent to murder there must be a specific intent to kill. An intent to do serious bodily harm is not sufficient, and, if the jury believed, in this case, that the evidence did not show a specific intent to kill, whatever else they might believe, they could not convict the defendant of that offense, but might have convicted him of a lower grade of assault, and should have been, by the charge, given the discretion of doing so. Id. § 857." Per WILSON, J. Reversed for this error in the instruction to the jury. Carter v. S., 28 Tex. App. 355, 13 S. W. 147, F. 62.

§ 44. "To a Certain Extent may be Supplied by Construction from a Similar Purpose."

(Eng. C. C. R., 1787.) Blackham Assaulted a Woman with intent to commit rape; and she, without any demand from him, offered him money, which he took and put into his pocket, but continued to

treat her with violence to effect his original purpose till he was interrupted by the approach of a third person. This was held by a considerable majority of the judges to be robbery; for the woman, from violence and terror occasioned by the prisoner's behavior, and to redeem her chastity, offered the money, which it was clear she would not have given voluntarily; and the prisoner, by taking it, derived that advantage to himself from his felonious conduct; though his original intent was to commit rape. R. v. Blackham, 2 East P. C. 711, B. 202.

(Eng. C. C. R., 1810.) Forgery to Defraud A Affects B. Indictment of four counts: 1, for forging a fictitious name (W. S. West) as signature to a receipt for £19, 16s. 6d. purporting to be a receipt. for stock therein mentioned, with intent to defraud the Bank of England; 2, for uttering it knowing it to be forged, with like intent; 3 and 4, for forging and uttering it to defraud R. Mordey. The writing was not in its nature calculated to defraud the bank, and it was found that defendant had no intention to defraud Mordey. The court told the jury to acquit on the first and second counts; but that if they believed that defendant did not intend to defraud Mordey, yet as that was a necessary consequence of the forgery, that was sufficient evidence of intent to convict. The jury found guilty on the third and fourth counts; and the question being reserved, all the judges met in Easter term, 1810, and were of opinion that the conviction was right, as the immediate effect of the act was to defraud Mordey. R. v. Sheppard, Russell & R. 169, 2 East P. C. 967, B. 174, Ke. 463, Mi. 945.

(Eng. Assize, 1858.) Wounding with Intent. The prisoner was indicted for wounding with intent to do grievous bodily harm to the prosecutor. It appeared that the prisoner, with a knife, struck at one Withy. The prosecutor interfered and caught, on his arm, the blow intended for Withy. CROWDER, J. This will not sustain the charge of wounding with intent to do grievous bodily harm to the prosecutor, but he may be convicted of unlawfully wounding. R. v. Hewlett, 1 F. & F. 91, B. 329, Ke. 150.

(Eng. C. C. Res., 1874.) Malicious Injury to Window. LORD COLERIDGE, C. J. I am of opinion that this conviction must be quashed. The facts of the case are these. The prisoner and some other persons who had been drinking in a public house were turned out of it at about eleven P. M. for being disorderly, and they then began to fight in the street near the prosecutor's window. The prisoner separated himself from the others, and went to the other side of the street, and picked up a stone, and threw it at the persons he had been fighting with. The stone passed over their heads, and broke a large plate-glass window in the prosecutor's house, doing damage to an amount exceeding £5. The jury found that the pris

oner threw the stone at the people he had been fighting with, intending to strike one or more of them with it, but not intending to break the window. The question is whether, under an indictment for unlawfully and maliciously committing an injury to the window in the house of the prosecutor, the proof of these facts alone, coupled with the finding of the jury, will do? Now I think that is not enough. The indictment is framed under the 24 & 25 Vict. c. 97, § 51. The act is an act relating to malicious injuries to property, and §51 enacts that whosoever shall unlawfully and maliciously commit any damage, etc., to or upon any real or personal property whatsoever of a public or a private nature, for which no punishment is hereinbefore provided, to an amount exceeding £5, shall be guilty of a misdemeanor. I do not intend to throw any doubt on the cases which have been cited, and which show what is sufficient to constitute malice in the case of murder. They rest upon the principles of the common law, and have no application to a statutory offense created by an act in which the words are carefully studied. The other judges concurred. Conviction quashed. R. v. Pembliton, 12 Cox C. C. 607, L. R. 2 C. C. R. 119, B. 210, C. 120, Ke. 157, Mi. 171.

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(Eng. C. C. R., 1886.) Blow at One Strikes Another. Defendant was indicted and convicted under statute 24 & 25 Vict. c. 100, § 20, providing, "Whosoever shall unlawfully and maliciously wound or inflict grevious bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor. The proof was that defendant had a quarrel with one Chapple, and later, while passing through the room where Chapple was talking with a woman, he struck Chapple with a belt, which bounded off, and the buckle hit the woman in the face, injuring her severely. The jury found defendant had no intention of hitting her. BOWEN, L. J. The only difficulty that arises is from R. v. Pembliton [above], which was a case under an act of parliament which does not deal with all malice in general, but with malice towards property; and all that case holds is, that though the prisoner would have been guilty of acting maliciously within the common law meaning of the term, still he was not guilty of acting maliciously within the meaning of a statute which requires a malicious intent to injure property. Had the prisoner meant to strike a pane of glass, and without any reasonable expectation of doing so, injured a person, it might be said that the malicious intent to injure property was not enough to sustain a prosecution under this statute. But, as the jury found that the prisoner intended to wound Chapple, I am of opinion that he acted maliciously within the meaning of this statute. The other justices concurred. Conviction affirmed. R. v. Latimer, 16 Cox C. C. 70, 17 Q. B. D. 359, 55 L. J. m. c. 135, 54 L. T. 768, 51 J. P. 184, B. 217, C. 122, Ke. 144, Mi. 163.

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(Miss. Sup. Ct., 1885.) Mistaken Identity-Specific Intent. Appellant was convicted of assault with intent to kill and murder Levi Thompson. Appellant's brother, having been injured by one Morris at a public meeting at midnight, appellant started in pursuit of Morris to avenge the injury. The night was dark; and seeing a person in the road, whom he supposed to be Morris, he struck him in the back with a knife, giving him a severe wound. Then discovering that he had struck his best friend, he desisted. It is urged that the intent charged was not proved. ARNOLD, J. He may not have intended to kill Thompson, but he was properly convicted if he intended to kill the man at whom the knife was directed. The evil and specific intent to strike the form before him at the time is manifest, and that form proved to be Thompson. That there was a mistake as to the identity of the person intended to be injured constitutes no defense. And this is not in conflict with the settled doctrine in this state that on a charge under the statute, of assault with a deadly weapon, with intent to kill and murder a particular person, it is necessary to prove the specific intent as laid in the indictment. There is no error in the record. McGehee v. S., 62 Miss. 772, 52 Am. Rep. 209, F. 105, Kn. 50.

IMPEDIMENTS TO FORMATION OF CRIMINAL INTENT.

§ 45. Forecast. Having considered the nature of criminal intent in general, it is necessary before passing the subject to examine and understand the nature and effect of certain impediments to it; which cause action without intent, or against intent, otherwise produce action regardless of intent, or prevent formation of any rational intent. Principal among these are: 1. That the defendant is a corporation, deriving all its powers from the law, and therefore powerless to do any wrong. 2. That the act was compelled by duress of overwhelming force or imminent peril. 3. That the defendant was mistaken as to the facts, and if they had been as he supposed they were the act would have been less criminal or entirely innocent. 4. That defendant was mistaken as to the law, and supposed that he had a right to do as he did. 5. That the defendant was an infant, who by reason of his immature age had not discretion to discern good from evil. 6. That the defendant was idiotic or demented, and therefore, regardless of his age, was too simple-minded to know right from wrong. 7. That the defendant was intoxicated at the time of the act, and therefore temporarily incompetent to form any criminal intent. 8. That the defendant was insane, and that his mental disease so affected his discernment and reasoning powers that he could form no criminal intent. We will consider these points in the order named.