Stein v. State

A. J. WALKER, C. J.

When a party owes the public a duty, although resulting from- a contract, he is indictable for a breach of that' duty. The'obligation to the public, imposed on the defendant by his contract, was to supply water to the city of Mobile from-Three-mile creek. The contract itself stipulates nothing as to the'’quality of water that may be furnished, further-than may-be implied in the requisition, that it shall be brought from-Three-mile creek. The indictment alleges the defendant’s failure and neglect to supply “ good and wholesome water” to the inhabitants of Mobile, and also the sale and supply by him, to those inhabitants and the persons visiting the city, of “ unwholesome and poisonous water.” The former branch of this allegation is indeterminate, and comports equally with the idea, that there was not a supply of any water at all, or that there was a supply of water which was positively bad. In either alternative, there would be a failure to supply “ good and wholesome Water.” The meaning, however, becomes certain, when reference is had to the latter branch of the allegation, which shows that there was a supply of Water; and the consistency bf the two is preserved, by ■considering the former as asserting that the water supplied was not good -and wholesome. There is, then, no allegation of -a -failure to supply water. The gravamen is, that there- was a supply of water, the quality of which was unwholesome and poisonous. The defendant may have supplied water from Three-mile creek, which was, in the language of the indictment, “ unwholesome and poison. ous,” because the water of the creek was unwholesome and poisonous; and he may, therefore, have perpetrated the grievance alleged in the indictment, in the exact fulfillment of his contract. The indictment, therefore, shows no violation of any duty imposed -on the defendant by the terms of his contract; and we may dismiss from our consideration the arguments which refer his criminality to■ breach of his contract.

[2.] The indictment charges, however, that the-poisonous water was supplied to all the citizens of Mobile, and to those who might visit the city. Such an act-is-sufficiently general and extensive in its effects to constitute ■ a ,nui-sanee; and the poisoning of the water consumed by an entire community, and by all who,might go'that way, would ■certainly possess the quality of injuriousness to the community, requisite to constitute a nuisance. — 1 Bishop’s Criminal Law, 352 ; 2 ib. 848. If, then, the indictment shows that the defendant is criminally guilty of inflicting the public-injury alleged, it is a good accusation of nuisance. The indictment does .not charge that the defendant know-ingly or intentionally supplied water of unwholesome or poisonous quality; nor that he poisoned the water, or im. parted to it its unwholesome quality ; nor that the same was done by his agents or servants. The defendant may, therefore, have done-all that is alleged, and yet have been guilty of no known or intentional wrong. Can it be that, upon upon such facts, the defendant is criminally guilty ?

Tlie theory of the law is, that a criminal intent is a necessary ingredient of every indictable offense. The maxim is, Actio non facit reum, nisi mens sit rea. It is not necessary, in all cases, eithfer to aver or prove the guilty intent; and the influence of legal presumptions may, sometimes, be such, that the legal imputation of a guilty intent may be made in contravention of the fact; as for instance, the presumption that every one knows the law. Where the .gist of the offense is neglect, or carelessness, it would, as a general rule, be a solecism to speak of a guilty knowledge, since the neglect itself usually evidences the guilty mind; and the principle has been carried, in some cases, to the extent of making one criminally responsible for not using proper precaution to prevent the injurious acts of his .■servant. On this principle rest the decisions, where the servant rendered bread unwholesome, by the improper use of the ingredients; where the superintendent of a gas company corrupted the water of the river Thames, by conveying into it deleterious gases and fluids; where the engineer of a railroad neglected to ring the bell, or blow the whistle, at the crossing of a street; where the owner oí a river caused detriment to neighboring lands by neglecting to scour it; where a corporation neglected to repair sea walls, in violation of its charter; and where other neglects, .of like character, have been committed. — Vermont v. Central Railroad, 28 Vermont, 583; Rex v. Medley, 6 Car. & P. 292 ; Henry v. Mayor of Lime, 5 Bing. 91; S. C., 5 B. & Ad. 77 ; S. C., 8 Bligh’s New R. 690; 1 Bishop on Criminal Law, 230, 231; Wharton’s Amer. Criminal Law, 10, 11. But this principle does not apply here, because the charge against the defendant is really an act committed, and not the omission or negligent performance of an act. Neglecting to supply good and wholesome water, and supplying unwholesomeundpoisonous water, cannot be tortured into a simple charge of neglect. As well might it be said, that he who administers poison, dissolved in water, is simply guilty, of neglecting to ■administer pure water ; or that he who sells poisoned bread, is simply guilty of neglecting to sell wholesome bread. Such sophistry would con vert every positive act into a neglect. The poisonous quality of the water certainly may have been the result of some negligence, or carelessness, in the choice or ■ arrangement of the instruments employed in supplying it; but such is not the charge, and we cannot aid the indictment by an inference of it.

It is a received principle,, also, that “ where the statement of the act itself includes a knowledge of the illegality of the act, no averment of knowledge or bad intent is necessary.’’ — Wharton’s Amer. Crim. Law, 297 ; Commonwealth v. Stout, 7 B. Monroe, 247; Commonwealth v. Elwell, 2 Metcalf, 190. “The law presumes that every person intends to do that which he does.”' — 1 Bishop- on Criminal Law, § 248. Hence, whenever one does air act legally wrong in itself, the law presumes the intent to do that act; the act, of itself, evidences the illegal intent.- The-doing of an act in its nature illegal — illegal without any extrinsic qualification — of itself evidences the criminal intent. But such is not the character of the act charged' here. The furnishing of poisoned water is not, of itself, a crime: the criminality of the act depends upon the question, whether it was furnished with a knowledge of the poisonous quality; knowledge is an ingredient of the-offense, and must be averred. — Wharton’s Am. Crim. Law, 297; State v. Brown, 2 Speers, 129. Accordingly, where one is indicted for selling, an obscene book, or for carrying off a slave, or for an indecent exposure of the person, or for keeping and suffering to go- at large a dog of ferocious and furious nature, or for bringing into a public place an animal or person infected with a communicable disease, or for selling unwholesome meat, or for selling a diseased cow, or' for uttering a forged note, or for any offense of like character, — it is held, that an averment of knowledge is necessary. — 1 Bennett & Heard’s Leading Criminal Cases, 6, 551; Wharton’s Am. Crim. Law, 2396 ; Wharton’s Precedents of Indictments, 716, 688, 718, 759, 762, 763, 768; 3 Archbold’s Crim. Pl. 609-44; 3 Chitty’s Crim. Law, 643 ; Duncan v. State, 7 Hum. 159 ; Brig William Gray, 1 Paine, 16; Commonwealth v. Stout, 7 B. Monroe, 247; Rex v. Watts, 2 Esp. 675.

There are, also, other rules pertaining to the necessity of averring a sciente~, which it is not' necessary for us to consider; such, for instance,, as ~that every person is presumed `to intend the natural and probaNe consequences of his acts.-1 Bishop on Criminal ~Law, 248. From the proposition, that the criminality of supplying poisonous water consists in' the fact~of its being done with knowledge of the poisonous quality, it is an unavoidable sequence, that knowle~ge is an ingredient of the offense, and its averment is i~dispeiasable to the sufficiency of the indictment.

[3-4.] There was no error for the admission of the testi mony of witnesses Bruce ai~d~I'hompson. Their testimony had an obvious relevan~y to the question, whether the defendant furnished unwholesome water to the public in the city of Mobile. The dec'arations of the slave, as to the nature of his suffering, were admissible, upon the prin- ciple settled in numerous cases de~ided by this court. Holloway v. Cotton, 33 Ala. 529; Cunningham v. Kelly, 36 Ala. 78.

78. We do not deem it necessary to notice any of ~the :other questions presented in the

case. Judgment reversed, and cause