Lead Opinion
This is аn action to recover a penalty alleged to have been incurred by the defendant under section 101, ch. 19, R. S. (1 Tay. Stats., 508, § 137), which reads as follows: “ Whoever shall willfully obstruct any highwa}'-, or fill up or place any obstruction in, any ditch constructed for draining the water from any highway, shall forfeit for such offense a sum not exceeding twenty-five dollars; and the'оverseer of the proper district shall cause such obstruction immediately to be removed.”
The question thus presented might have been considered in other cases which have come before this court, and particularly in The State v. Hayden,
Eor the plaintiff it is contended that the term willfully, as here used, signifies no more than voluntarily or purposely — thus distinguishing the act of obstructing made penal, from one which may be said to have been accidental, which last alone-it was the design of the statute not to punish. The word ivill-fully, as used to denote the intent with which an act is done, is undoubtedly susceptible of different shades of meaning or degrees of intensity according to the context and evident purpose of the writer. It is sometimes so modified and reduced as to mean little more than plain intentionally, or designedly. Such is not, however, its ordinary signification when used in criminal law and penal statutеs. It is there most frequently understood, not in so mild a sense, but as conveying the idea of legal malice in greater or less degree, that is, as implying an
And in Commonwealth v. Kneeland,
In Commonwealth v. Bradford,
But the fullest and most satisfactory discussion we have found in any case is in United States v. Three Railroad Cars, 1 Abbott’s U. S. Rep., 196, which arose in the district court of the United States for the northern district of New York. The question there was as to the proof necessary to authorize a conviction under a penal statute of the Unitеd States prescribing a punishment for “ willfully ” removing an official seal from property which had been sealed up by officers of the customs: and the court decided that it must appear that the party not only intended to remove the seal, but that he had at the time a knowledge of its character. One who removed such a seal in ignorance of its character, and in the honest execution of a supposed duty in the care and transportation of the property, was held not liable to punishment under the statute, for the reason that he could not be deemed to have acted willfully. Speaking of the words knowingly, vdllfully and maliciously, as used in criminal and penal statutes, the court says : “ The first" of these words does not, in common parlance, or in legal construction, necessarily and per se imply a wicked purpose or perverse disposition, or indeed any evil or improper motive, intent or feeling ; but the second is ordinarily used in a bad sense to express something of that kind, or to characterize an act done wantonly, or one which a man of reasonable knowledge and ability must know to be contrary to his duty.”
Further citations might be made, but the foregoing are enough, we think, to justify the conclusion at which we have arrived, which is, that the evidence offered should have been received for the purpose of showing that the obstruction in question was not willful. Assuming the facts to have been as stated in the offer, it is clear that the defendant was not guilty of the offense charged, and for which a penalty has been assessed against him in this action. The word willfully, employed
The question presented is quite clear of those involved in the cases cited by counsеl for the plaintiff and arising under statutes of a different kind, like the case of State v. Hartfiel,
Neither do we think that it makes any difference that the
Nor do we consider the public authorities without a remedy to vindicate the rights of the public and to determine the unlawfulness of the obstruction, in cases where the penalty prescribed by the statute is not recoverable. The overseer of the proper road district may cause the obstruction to be removed as provided by the statute, and thus put the land owner to his action to recover his damages, in which action the rights of the public may be adjudicated, and the unlawfulness of the obstruction, if such be its character, determined against the party erecting it. Many such actions have been instituted, and have come not unfrequently before this court, in which the sole question involved was, whether a lаwful highway existed at the time and place of obstruction.
In discussing the question thus presented, which must be conceded to be of some delicacy and importance and not en - tirely free from embarrassment and difficulty, we have confined ourselves to the facts of the case before us, and to applying them to the statute under which the action is brought. We are convinced, upon those facts being shown to the satisfaction of the jury, that the action cannot be maintained.
Other grounds of error are assigned, but none of them will be considered, save only that the court is of opinion that the question put to the witness Beemer as to the circumstanсes un - der which he, as overseer, bad directed the witness Daniel Da-muth, Jr. to expend highway labor on • the road, should have been answered. The witness Damuth, Jr., had testified that Beemer, when overseer of highways in the district, had authorized him, Damuth, Jr., to work upon the road in question, and that he had done so. The -circumstances under which such work was dirеcted by the overseer were not immaterial to the issue. The fact of work being done upon a road under author
A question of practice of some importance is also raised, which is, whether the defendant was properly permitted to go into evidence, or contest at all the existence of. the highway, on the trial in the circuit court. The action was commenced in justice’s court; and the defendant, at the time of putting in his answer in writing before the justice, denying the existence of the highway, and averring the locus in quo to be his soil and freehold, and in his sole possession, did not enter into the bond required by the statute to рay the judgment which the plaintiff might recover against him in the circuit court, on removal of the cause to that court, and so waived his defense that the premises in question were not a highway. Por the purposes of trial in the justice’s court, he admitted that the highway existed. The State v. Huck,
Concurrence Opinion
I concur in the reversal of the judgment on the sole ground thаt the witness Beemer should have been permitted to answer the question put to him as to the circumstances under which he had directed Damuth to expend highway labor on the road in' question.
But I must dissent from the views of my brethren to the effect that it is competent for the defendant to prove that the super
I am constrained to believe that the decision of the court on this question has introduced a new principle into the criminal law, one which will tend to prevent any future convictions for offenses in which willfulness is an element, when the accused can show that, before he committed the act for which he is prosecuted, some person advised him that such proposed act was not unlawful. I am aware that my brethren do not intend to go to that extent; but such seems to me to be the logiс of their decision.
I think that when the defendant obstructed the alleged highway, he acted at his peril. He knew that it had been traveled more or less for several years; he knew that it was claimed to be a public highway by user; and he knew, or might have known, all of the facts of such user: and having placed the obstructions therein with such knowledge or means of knowledge, if the locus in quo turns out to be a public highway, he should be held to have obstructed it wilfully, notwithstanding the erroneous legal advice given him by the town supervisors.
By the Court. — Judgment reversed, and a venire de novo awarded.