« PreviousContinue »
effecting any result applies to those who know that the acts performed will have that effect, and perform them with the intention that such shall be their operation.?
ingly' in the statute is superfluous, “The term “knowingly,' in an action having no meaning which is not neces- like this, must undoubtedly be held to sarily implied without it. ... The mean actual personal knowledge. . offence, therefore, subject to the altera- The term 'knowingly' was used to destions effected by the statute, ought to ignate the persons upon whom the be deemed to have the character of the penalty should be imposed; and it is common law offence.
then not to be enlarged or extended so as to knowledge on the part of the accessory, meet any supposed mischief which the not only that the principal offence had statute was intended to guard against been committed, but also that the per- and prevent.” Verona Cen. Cheese son harbored had committed it, was a Factory v. Murtaugh, 4 Lans. (N. Y.) necessary ingredient in the accessory 17, 22. offence. We think there can be no 1. U. S. 7'. Kirby, 7 Wall. (U.S.) 482. doubt that the word 'knowingly, as And in U. S. 7'. Claypool, 14 Fed. Rep. used in the section, was intended to 127, it is said: “The terms 'knowingly have that meaning.
The sec- and wilfully,' employed in the law and tion in its present form increases the in the indictment, have the common punishment, but in another respect it and usual meaning attached to them, mitigates the severity of the law.
and are intended to signify that defendIt also expresses what was probably ant .. at the time of committing before implied, that the guilt is incurred the offence charged against him, must only when there is an intent to shield have known what he was doing, and the principal offender from the law. that with such knowledge he proceeded These are the only alterations worthy to commit the violations of law with of note which are apparent. Now the which he is charged.
The of question is whether by reason of these fence here denounced is the knowing alterations, the word 'knowingly' has and wilful obstructing the passage of acquired a different meaning from what the mail. I have already spoken of the it previously had. It seems to us that meaning of the terms “knowingly and we must assume that the old word has wilfully,' and add, by way of further the old meaning until it is clearly ap- explanation, that they are used in conparent that it was meant to have an- tradistinction to innocent, ignorant or other. We do not find any sufficient unintentional; so that defendant indication that a different meaning was by the acts he did may have obstructed intended.
and retarded the mail in its passage So, as to incurring a penalty for yet he is not guilty under the law if he hindering or obstructing an arrest. did it innocently and without intending Driskill v. Parrish, 3 McLean (U. S.) to do so. There is a distinction be631, 636. "He must act knowingly,' tween the act of obstructing done while which presupposes a knowledge of such in pursuit of a legitimate or innocent facts as authorize an arrest. If he act object, and being done while comin ignorance of these facts he does not mitting an unlawful act.” act 'knowingly.'”
And see Meireilles 2'. Banning, 2 B. "And the same principle applies in & Ad. 909, where the offence of "witthe case of a rescue. To bring an indi- tingly, wilfully or knowingly" detainvidual within the statute he must have ing letters, was taken “to denote acts knowledge that the colored persons are done with a conscious mind that the fugitives from labor, or he must act party is doing wrong,” and not to apply under such circumstances as show that to the case of a postmaster who dehe might have had such knowledge by livered letters to the assignee of a exercising ordinary prudence.” Giltner bankrupt believing bona fide that he v. Gorham, 4 McLean (U. S.) 402. was entitled to them.
In an action to recover penalties im- These words do not mean "that the posed by statute upon “whoever shall person must be shown to have known knowingly” do certain acts, it was held what the law was and to have acted that knowledge could not be imputed wilfully against it. Every man is to the defendant from the acts of others presumed and must be held to know and their agency for or relation to him. the law.” A Quantity of Dist. Spirits, For the grammatical force of the word, see note 1. 3 Ben. (U. S.) 559, where it was held when I say that a party knowingly dethat where a rectifier knew that stamps posited an obscene picture, no one supon barrels were not cancelled, and it poses that I mean that
that he simply was his will, freely exercised, that they deposited a picture, the character of should not be cancelled when the which he was ignorant of. All underbarrels were emptied, he had “know- stand that I mean to say that he has ingly and wilfully” neglected to comply deposited that which he knew to be obwith the provisions of the Internal scene; and this because the adverb Revenue Act.
knowingly', used in sentences of this Where the defendant was indicted kind, by the common understanding of for “knowingly and wilfully” cutting all, goes beyond the mere verb, and inand carrying away trees on the land of cludes broadly all that is expressed in another without his consent, and the the full act charged to have been done. court below charged the jury and Now, congress, in the section under “knowingly” and “wilfully” were in which this indictment was framed, law synonymous terms, and that the de- chose to use language in this way; and fendant was guilty if he did the act after defining what was nonmailable “knowingly," it was held there was no matter, declared that anyone who knowerror. “Whether the criticism on the ingly deposited such nönmailable matlanguage of the judge, in saying, in his ter should be punished. Shall I ignore charge, that the words “knowingly” and this common understanding of the use "wilfully” are in law synonymous, be of the word 'knowingly'in sentences of just as a question of philology, is of no this kind, or shall I recognize that consort of consequence in this case, be- gress has used this
gress has used this language in its cause the indictment follows the pre- ordinary acceptation; and having thus cise words of the statute, and that is sufficiently described the offence, hold entirely sufficient.” Welsh 2. State, II that an indictment which follows that Tex. 368, 374
description is sufficient?" 1. An indictment, under Rev. St. U. See contra l'nited States 7:. Slenker, S., § 3893, charging that the defendant 32 Fed. Rep. 691, where it was held that did “knowingly deposit" for mailing and an allegation in an indictment, under delivery certain obscene pictures, etc., is the above statute, of “knowingly” denot open to the objection that it is not positing, etc., would not be extended to alleged that the defendant knew the embrace an averment of scienter, as to character of that which he deposited. the obscene character of the matter so United States v. Clark, 37 Fed. Rep. deposited. The court said: “The de106. “Doubtless "
the question turns fendant is charged with knowingly delargely on whether the word 'know- positing, and causing to be deposited, in ingly,' as used in the statute and the in- the mail, for mailing and delivery, cer. dictment, qualifies simply the adjacent tain obscene papers, etc. She may knowverb 'deposit,' or the whole maiter ingly have done this, she may knowdescribed. It may be conceded that ingly have caused it to be done, and yet ordinarily an adverb is understood as be entirely ignorant of the obscene qualifying its adjacent verb; and yet character of the writings, etc., so deposthat is not always true; and in constru- ited, and consequently not guilty of the ing words and sentences used in an in- offence described in the statute. Know. dictment we are to give them their ingly, in the indictment, must be limordinary significance, in the absence of ited to the act of depositing, for mailing some technical construction necessarily and delivery the obscene matter in the imposed upon them. Now, it is a fa- mail, and cannot be extended to include miliar use of the adverb 'knowingly a guilty knowledge of the writings, that it qualifies both its adjacent verb paper, etc. Suppose the indictment
) and the full act thereafter described. A charged that the defendant knowingly few simple illustrations will make this deposited, and caused to be deposited, clear. I say that a party knowingly in the mail, for mailing and delivery, told a lie. Everyone understands from a certain dangerous and explosive subthat that I mean that the party has stance, known as dynamite or gunpowstated that which he knew to be a lie, der; would this be a sufficient allegation and not simply that he stated that which that she knew the material to be of a was in fact untrue, yet unknown to hiin dangerous and explosive character? to be untrue. And in the same way, The court thinks not. The knowledge
KNOWLEDGE—(See BELIEF; CARNAL KNOWLEDGE; KNOWN).
-The difference between “knowledge” and “belief” is in the degree of certainty. “Knowledge” is nothing more than a man's alleged in the indictment would be con- which it is an essential element. The fined to the act of mailing. The adjec- indictment is, therefore, fatally defective tives 'dangerous and explosive' would because it does not describe in apt and intervene between the fact of which she technical terms any criminal act for is alleged to have knowledge, and sepa- which the defendant can be held rerate it from the subject of which she sponsible, or upon which any valid must be charged with having guilty judgment can be rendered.” knowledge, and a description of that BREWER, J., in U. S. v. Clark, 37 subject.
The court is of Fed. Rep. 106 (cited supra) comopinion that the indictment does not set ments on these two cases as follows: forth the offence with clearness and all “Can it be possible that the defendant necessary certainty, so as to apprise the was misled by the language of this inaccused of the crime with which she dictment as to the exact offence with stands charged, and every ingredient of which he was charged ? Did he for a which the offence is composed is not moment suppose that he was charged accurately and clearly alleged. It is with putting in the postoffice something defective because it does not allege that of which he was entirely ignorant, or the defendant knew that the writings, did he understand from the ordinary papers, etc., which she is charged with meaning of the language used that he having deposited in the mail, for mail- was charged with putting in the posting and delivery, were of an obscene, office an obscene picture—that which he lewd and lascivious character. This knew to be obscene? I can have no conclusion is clearly sustained by prin- doubt that he was fully informed as to ciple and precedent."
the charge against him, and not in the So in Commonwealth v. Boynton, 12 slightest degree misled. I am fully aware Cush. (Mass.) 499, it was held that an that there are authorities which do not indictment for selling diseased, cor- concur with this view, and yet I think rupted or unwholesome provisions, must those authorities adhere too closely to distinctly aver that the vendor knew the rigor and technicality of the old they were diseased, and that an allega- common law practice, which, even in tion that he did “knowingly sell” such criminal matters, is yielding to the provisions, “without making fully
"more enlightened jurisprudence of known to the vendee that the same were the present - a jurisprudence which diseased,” was insufficient. “The word looks evermore at the matter of sub*knowingly' does not apply to and qual- stance and less at the matter of form.”
' ify every act charged, essential to con- And see U. S. v. Bennett, 16 Blatchf. stitute the offence under the statute. (U. S.) 338, 352.
338,352 Strictly speaking, and construing the In U. S. v. Chase, 27 Fed. Rep. 807, language of the indictment according it was held that the omission of such an to the technical rules of pleading, it averment in the indictment was a dequalifies and gives significance only to fect that under $ 1025 Rev. Stat. could the word ‘sell, so that in substance and not be taken advantage of at a late legal effect, the averment is only that stage of the proceedings. the act of sale was done by the defend- In a complaint that an injury was ant knowingly. But there is no allega- caused " by the defendant negligently tion of any knowledge by him, at the and carelessly omitting to keep its time the sale was made, of the condi- brakes on said train in good repair, and tion of the meat. The whole allegation knowingly allowing the same to remain might therefore be true, and yet the de- out of repair," it was held that the word fendant might be innocent of any of- “knowingly” qualified only the second fence. The sale, of itself, is not made clause. Louisville & N. R. Co. 7. criminal, but it is the sale coupled with Coulton (Ala.), 5 South. Rep. 458. a knowledge of the diseased state of the “Knowingly" and "pass," as used in thing sold which constitutes the offence. a statute denouncing the offence of utA person might well sell meat know- tering a forged instrument, are
not ingly, and yet be wholly ignorant of its words of technical signification, and the true condition. The averment of omission of the trial court to define the knowledge does not extend to each part same to the jury was held not error. of the description of the offence, in Peterson v. State, 25 Tex. App. 70.
firm belief.1 Where “religion, morality and knowledge ” are declared in the constitution to be essential to good government, the “ knowledge” referred to is “knowledge of the truth,” and comprehends in itself all that is comprehended in the other two words“ religion” and “morality." 2 In the case of a bona fide purchaser there is a difference between the want of knowledge and the want of notice. He may have been notified without being made to know the prior right. The “knowledge ” which renders the owner of a vessel liable for the negligence of the crew is some personal knowledge or means of knowledge of which he is bound to avail himself, of a contemplated loss, or of a condition of things likely to produce or contribute to the loss, without adopting appropriate means to prevent it.4 Personal knowledge of an allegation in an answer is a personal knowledge of its truth or falsity, and if the allegation is a negative one, this necessarily includes a knowledge of the truth or falsity of the allegation denied.5
KNOWN.--In order to constitute the exemption of coal lands contemplated by the pre-emption act under the head of “known mines," there must be ascertained coal deposits upon the land of such an extent and value as to make the land more valuable to be worked as a coal mine under the conditions existing at the time, than for merely agricultural purposes. 6 So where in an 1. Hatch v. Carpenter, 9 Gray also information.
two (Mass.) 271.
statutory words 'knowledge' and 'in“Between mere belief and knowledge formation' have not, as thus used, the there is a wide difference.” Iron Silver same legal significance.” Haney v. Mining Co. v. Reynolds, 124 C. S. 374. People (Colo.), 21 Pac. Rep. 39.
2. Bd. of Educa. of Cincinnati 7. An affidavit otherwise correct but Minor, 23 O. St. 211, where it was held closing with the words "to the best of that the constitution of the State did his knowledge, information and belief," not enjoin or require religious instruc- thereby qualifying the prior declaration, or the reading of religious books, tions contained therein, was held dein the public schools of the State. fective and insufficient but not void, so
3. Cleveland Woolen Mills that the plaintiff was entitled after Sibert (Ala.), 1 South. Rep. 777.
judgment, with the leave of the trial 4. Lord v. G. N. & P. S. Co., 4 court, to make it positive and sufficient
" Sawy. (U. S.) 292.
by amendment. Harrison v. Beard, 5. West v. Home Ins. Co., 18 Fed. 30 Kan. 532. Rep. 622.
“Means of Knowledge." -- ConstrucWhere a party is allowed by the tive notice exists where a municipal code to make supplemental pleadings corporation has had the means of knowlalleging facts which may have come to edge for a sufficient time to have remehis knowledge since the filing of the died a defect in the sidewalks. “It former pleading, he may allege a fact may be that the phrase 'means of that could have been seen at a previous knowledge' fairly includes case of negterm of the court from other papers in lect to anticipate and prevent certain the case on file, as the "knowledge" defects, . but, with that exspoken of is actual, not constructive, ception we think the phrase applicable knowledge. Peoples . Carroll, II only to visible defects or obstructions, Heisk. (Tenn.) 417.
defects or obstructions that are open An averment in an answer that de- and notorious; *so notorious as to be fendant “hath no knowledge upon observable by all.'” City of Denver v. which to base a belief” was held de- Deane (Colo.), 16 Pac. Řep. 30. fective in failing to state that he has 6. Colo. Coal Co. v. U.S., 123 U.
application for a placer claim the failure to mention veins or lodes “known to exist” is made by statute a conclusive declaration that the applicant has no right to such veins or lodes, it is not enough that there may have been some indications by outcroppings on the surface of the existence of lodes or veins of rock in place bearing gold or silver or other metal to justify their designation as “known” veins or lodes. To meet that designation the lodes or veins must be clearly ascertained and be of such extent as to render the land more valuable on that account, and justify their exploitation. Where an insurance policy contains S. 307 (s. C., 8 Sup. Ct. Repr. 140), a general sense; and yet it becomes where the court, after reviewing difficult of interpretation when applied former cases, say: “It will thus be seen to the determination of rights asserted that, so far as the decisions of this to such veins or lodes from the possescourt have heretofore gone, no landssion, or absence, of such knowledge at have been held to be 'known mines' the time application is made for the unless, at the time the rights of the patent. At the outset, as stated when purchaser accrued, there was upon the the case was here before, the enquiry ground an actual and opened mine nust be whether the alleged knowledge which had been worked or was capable must be traced to the applicant, or of being worked.... It is not whether it is sufficient that the existence sufficient, in our opinion, to constitute of the vein or lode was at the time of known mines' of coal, within the the application generally known. If meaning of the statute that there general knowledge of such existence should merely be indications of coal should be held sufficient, the inquiry beds or coal fields of greater or less ex- would follow as to what would content and of greater or less value, as stitute such general knowledge, so as shown by outcroppings. ... The to create an exception to the grant, notcircumstance that there are surface withstanding the ignorance of the patindications of the existence of veins of entee. Such suggestions indicate the coal does not constitute a mine. It difficulties of some of the questions does not even prove that the land will which may arise in the application of ever be under any conditions suffi- the statute. The court below instructed ciently valuable on account of its coal the jury that it was unnecessary to dedeposits to be worked as a mine. A clare what circumstances might be change in the conditions occurring sufficient to affect a patentee with subsequently to the sale, whereby new knowledge as prescribed by the statute discoveries are made, or by means “for, if, in any case, it appear that an whereof it may become profitable to application for a patent is made with work the veins as mines, cannot affect intent to acquire title to a lode or vein the title as it passed at the time of the which may exist in the ground beneath sale. The question must be determined the surface of a placer claim, it is beaccording to the facts in existence at lieved a patent issued upon such applithe time of the sale." And see the cation cannot operate to convey such case of John Downs, 7 U.S. Pub. Land. Tode or vein;' and further, that 'that in
tention could be formed only upon in1. U. S. 7'. Iron Silver Mining Co., vestigation as to the character of the 9 Sup. Ct. Repr. 195, 199; s. c., 128 U. ground, and the belief as to the existS. 673. In Iron Silver Mining Co. v. ence of a valuable lode therein, which Reynolds, 124 U. S. 374 (s. c., 8 Sup. would amount to knowledge under the Ct. Repr. 603), it is said: "The ques- statute.' This instruction is plainly tion under this section, which must erroneous. The statute speaks of accontrol and limit any conflicting ex- quiring a patent with knowledge of the ception expressed in the patent is, existence of a vein or lode within the when can it be said that a vein or lode boundaries of the claim for which a is known to exist within the bounda- patent is sought, not the effect of the ries of a placer claim for which a patent intent of the party to acquire a lode is sought. The language of the statute which may or may not exist, of which :ppears to be sufficiently ntelligible in he has no knowledge. Nor does it