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So it is not essential in treason, that the treasonable purpose be successful; therefore if letters to an enemy are intercepted, they still constitute a sufficient overt act.1

§ 317. But, unless a case comes within principles like those laid down in the last few sections, the doctrine is, that the act itself must be in its own nature criminal, or prohibited by law; and that it is not sufficient for the person, proceeding under a mistake of facts or otherwise, to believe he is doing the evil intended, while in truth he is doing neither it nor any other wrongful thing.2 Thus, to constitute a robbery from the person, if there is no violence, actual or constructive, the party beset must give up his money through fear; and when his fears are not excited, but his secret motive for yielding is to prosecute the offender, this crime is not committed. When, however, there is an assault, such as would furnish a reasonable ground for fear, the offence of robbery is held to be complete, though the person assaulted parts with his money for the purpose of apprehending and bringing to punishment the wrongdoer. In like manner, under the statutes against false pretences, it is not indictable to induce one by lying representations to pay a debt he justly owes; because he is not thereby legally injured. And so nothing is a false pretence which has no tendency to, and does not, induce a man to part with his goods; since it neither harms nor tends to harm.7

1 Rex v. Jackson, 1 Crawf. & Dix C. C. 149. And see Rex v. Gordon, 2 Doug. 590; 1 East P. C. 85.

2 And see ante, § 257, 312.

3 2 Russ. Crimes, Grea. Ed. 875, 879, 891, 892.

* Rex v. Fuller, Russ. & Ry. 408; Reane's case, 2 East P. C. 734, 2 Leach, 4th ed. 616, 1 Russ. Crimes, Grea. Ed. 890; Rex v. Jackson, 1 Russ. Crimes, Grea. Ed. 892, 1 East P. C. Addenda XXI.

6

Norden's case, Foster, 129, 1 Russ. Crimes, Grea. Ed. 880, 891, 892.

People v. Thomas, 3 Hill, N. Y. 169; Rex v. Williams, 7 Car. & P. 354. * Commonwealth v. Davidson, 1 Cush. 33; Rex v. Dale, 7 Car. & P. 352; The State v. Little, 1 N. H. 257, 258.

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§ 318. Even in treason, which we have seen1 is an offence in the nature of an attempt, if a man intending to go over to the enemy mistakes some troops of his own country for the enemy's, and goes to them, he does not become thereby a traitor. So, under the English statutes against stealing letters from the post-office, which statutes are construed as applying only to letters deposited in the ordinary way, if a letter is dropped in for the purpose of detecting a suspected carrier, and this carrier steals it, supposing it to have come in the usual course, he is not guilty. And it appears, that, where a party is justified in resisting an officer, on the ground of the officer's being without a warrant, or having only an imperfect one, his justification is effectual equally whether he knew of the omission or not. Likewise the criminal offence of perjury cannot be committed when the proceedings in court, concerning which the false oath is taken, have no legal validity, but are simply void.5 Illustrations of this principle might be multiplied indefinitely.

§ 319. There is a late English case in which the defendant, a constable, was indicted under the statute for shooting at a man, with intent to do him grievous bodily harm. According to the evidence, the constable, being employed to guard a copse, found the man wrongfully carrying wood from it, and for this attempted to arrest him. But the man refused to stop on demand; and so the constable fired at him, as such officer is in these circumstances authorized to do, where the offence in process of being committed is a felony, not where it is a misdemeanor. The offence was in truth a felony, the perpetrator having been previously convicted of the

1 Ante, § 316.

2 Respublica v. Malin, 1 Dall. 33.

Reg. v. Rathbone, 2 Moody, 242, Car. & M. 220; Reg. v. Gardner, 1 Car. & K. 628. As to the statutes of the United States on this subject, see United States v. Foye, 1 Curt. C. C. 364.

* See Foster, 311 et seq.; 1 East P. C. 325 et seq.

Rex v. Cohen, 1 Stark. 511.

like act, else it would have been only a misdemeanor; but the constable did not know of the previous conviction; and so the judges held that he was liable. Here, if the defendant had fully done all he could in any view be said to have attempted, and killed the transgressor, the killing would have been legally justifiable, provided he had been cognizant of all the facts; and it is not easy to see how ignorance of the justifying circumstance could change the legal conclusion; yet possibly this decision rests on some good reason not apparent in the report. If one should go out and take the life of a wild monster, believed by him to be human, but a scientific examination should disclose that it was not, would he be guilty of murder? No lawyer probably would so hold.2

§ 319 a. These views of the act and intent in combination present the general doctrine only. Much reflection on this subject is required of him who would thoroughly master our criminal law. At the same time, these general views indicate the points to which the attention of the inquirer is to be directed in each particular instance. Let us now proceed to matters relating mainly to the act alone.

1 Reg. v. Dadson, 2 Den. C. C. 35, Temp. & M. 385, 14 Jur. 1051, 1 Eng. L. & Eq. 566.

2 And see, for further illustrative matter, Rex v. Ady, 7 Car. & P. 140; Reg. v. James, 2 Den. C. C. 1, 12, note; Rex v. Lovel, 2 Moody & R. 39.

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CHAPTER XXVII.

MAGNITUDE OF THE ACT.

319 b. IN the entire range of subjects treated of in this volume, no one is attended with so much practical difficulty as the present. There undoubtedly are lawyers and judges who will even deny in words, that any consideration is to be given to the magnitude of the act, or to the amount of evil it is calculated to produce, only to its nature; but there is no man, lawyer, judge, or juror, whose conduct in the trial of a criminal case will not show, that truly his mind assents to the general doctrine to be stated in this chapter, though he may be unconscious of the fact himself.

§ 320. We have already had occasion to allude to the doctrine, that the law does not take notice of small things;1 and this doctrine will be mentioned many times more in the subsequent pages.2 De minimis non curat lex, "the law does not concern itself about trifles," is an old and familiar maxim, which, standing in the foremost rank of legal maxims, controls every department of our jurisprudence, civil and criminal. From the same root have sprung up around it other inferior maxims; one of which, very considerable in its influence, is, — In jure non remota causa sed proxima spectatur, "in law the immediate and not the remote cause of any event is regarded." It seems to have been supposed, that at least this

1 Ante, § 5, 6, 8, 226, 235, 257, 259, 264, 271, 288, 290, 292, 303.

* Post, § 350, 355, 429, 443, 444, 465, 479, 484, 520, 523, 526.

3 Broom Leg. Max. 2d ed. 105. * Broom Leg. Max. 2d ed. 165.

Broom Leg. Max. 2d ed. 170.

latter maxim does not prevail in the criminal law; yet an exact examination will show us that it does,1 though, as with other maxims, attempts have been made to apply it where it is not applicable. The true view plainly is, that, while both these maxims are to be regarded as enunciations of real wisdom from wise men, they are to be applied with such restrictions and limitations as the other principles of the criminal law combining with them require.

§321. Let us see a little how the doctrine, that the thing done must be of sufficient magnitude, is practically applied. Paley observes, that an act is followed by two classes of consequences, particular and general. "The particular bad consequence of an action," he adds, "is the mischief which that single action directly and immediately occasions. The general bad consequence is the violation of some necessary or useful general rule."2 Now the criminal law looks more to general consequences than to particular. And if a man should steal, for example, a thing of small value, he would as essentially violate a rule necessary to the good order of society, as if its value were great. It is therefore held, that an indictment for larceny may be maintained, though the thing taken is worth never so little, less than the smallest coin or denomination of money known to the law. And so in arson and other like criminal burnings, if any of the fibres of the wood are wasted by fire, it is immaterial how small is the quantity consumed. Therefore in cases of this kind the doctrine under consideration does not apply.5

1 Ante, § 303; 1 East P. C. 265; The State v. Knotts, 2 Speers, 692. Paley Phil. b. 2, c. 6.

3 Reg. v. Morris, 9 Car. & P. 349; Reg. v. Perry, 1 Car. & K. 725, 1 Den. C. C. 69; Rex v. Bingley, 5 Car. & P. 602; People v. Wiley, 3 Hill, N. Y. 194. See also The State v. Slack, 1 Bailey, 330; Payne v. People, 6 Johns. 103; People v. Loomis, 4 Denio, 380; Rex v. Vyse, 1 Moody, 218; Wilson v. The State, 1 Port. 118.

170.

The State v. Mitchell, 5 Ired. 350; ante, § 188.

And see Seneca Road v. Albany and Rochester Railroad, 5 Hill, N. Y.

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