Clark v. State

Appellant still insists that our ruling in this case is not in line with what we said in the Morris case, supra. In that opinion we used language on the authority of Wharton's Crim. Procedure, which was in a sense obiter dicta, and not necessary to the correct disposition of the instant case. The statute, violated in the Morris case, supra, expressly required that the act denounced be "knowingly" done. We so stated. Under our practice in this State we know of no instance where this court has held it necessary to allege that an act was "knowingly" done, — save where scienter was made an ingredient of the offense by statute. Certainly the mere truth that mistake of fact, accident or lack of knowledge will in most cases when proved suffice to justify an acquittal in a criminal charge of murder, theft, burglary, etc., could not be held to require that an indictment for such offense allege that same was knowingly done. One who transports whisky, if the proof shows same to be under such circumstances as support the conclusion that he did not know the liquor was in a given vehicle or receptacle, etc., may furnish sufficient ground for his acquittal, if the jury believe the testimony, but this affords no support for contending that such knowledge becomes a part of the law and should be pleaded in the indictment.

The motion for rehearing will be overruled.

Overruled. *Page 388