(108 A.) This command immediately follows the con- I do not doubt that the indictment ought to have stitutional declaration that "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right." It is clearly observable that one of the constitutional mandates deals with the constitutional right of the individual, whereas the other relates to the legislative power to enact any law which shall restrain or abridge the liberty of speech or of the press. The Constitution having defined the crime of treason, the Legislature was without power to widen the scope of the definition by including seditious acts which do not fairly come within the fact of levying war against the United States or state, or adhering to its enemies, giving them aid or comfort. It is of great significance that treason is the only crime defined in our Constitution. Independently of the fact that it is a crime of a political nature, most strongly affecting the stability of government, the reason for the unique status given to the crime in the Constitution very likely had its origin in the fear that free and open discussions involving criticism of the government or of those intrusted to administer it might be hampered by drastic legislation in the interest of some political creed or other in power. The Legislature, it is true, has not styled the act as one directed against treason, but nomenclature cannot change its intrinsic character. The act in the respect pointed out is of doubtful validity. It is proper to advert here to a canon of statutory construction, universally recognized, that penal laws must be construed strictly. It follows, therefore, unless the matter charged against the plaintiffs in error comes clearly within the inhibition of the statute, the conviction must fail, or if there is doubt on the subject a similar result must ensue. A fair reading of the matter set out in the indictment as constituting the offense committed by the plaintiffs in error makes it manifest that it does not come within the statute, or within the construction given to the statute by the Supreme Court. It can hardly be said that the alleged utterances of the plaintiffs in error advocated a subversion or destruction by force of the government of this state or of the United States. Giving to the language used its broadest significance, it constituted seditious slander against those intrusted with the aministration of the government of the United States. This situation led the learned judge to state in the opinion adopted by a majority of this court: "The charge of the indictment was that the defendants uttered in substance certain English words therein set forth. On the motion to quash, the averment was necessarily assumed to be true. At the trial the proof was that the words were uttered in Russian. * We 108 A.-21 averred at the least that the words were utterfrom considering this argument because it was ed in Russian. We are, however, precluded not made in the trial court. No exception raises the question specifically, and there is no assignment of error." The learned judge errs in stating that on the motion to quash the averment in the indictment was necessarily assumed to be true. That is the legal rule applicable to a demurrer to an indictment, but not to a motion to quash. The record shows that on the motion to quash it was objected that the indictment did not set out the words spoken, but merely their substance, and that an exception was taken to the court's refusal to quash. Under our decisions no error can be assigned upon the refusal to quash the indictment. By statute a motion to quash must be made before the jury is sworn. And this appears by the cases dealing with the question to be a necessary preliminary to enable a defendant to assign error upon the record for the defect in the indictment. The indictment was clearly bad, in that it did not set out the words alleged to have been spoken, Webster v. Holmes, 62 N. J. Law, 55, 57, 40 Atl. 778; Dr. Sachaverell's Case, 5 State Trials, 829. It is said that there is no assignment of error based upon the insufficiency of the indictment. It is true that there is no specific assignment. The record, however, discloses a general assignment, which states in substance that the court erred in giving judgment against the defendants, whereas judgment should have been given in their favor. Under this assignment the defendants were entitled to challenge the legal sufficiency of the indictment, which is an essential part of the record, by virtue of the fact that a motion to quash was made in the trial court before the jury was sworn, and denied. Mead v. State, 53 N. J. Law, 601, 23 Atl. 264. Where the error is one of law, and not of fact, and appears upon the face of the record, a general assignment is sufficient. 2 Tidd's Pr. 1226. In State v. Flynn, 76 N. J. Law, 473, 72 Atl. 296, a case in which it appears no motion was even made to quash the indictment, as required by the statute, and the legal insufficiency of the indictment was first raised after judgment, Pitney, Chancellor, speaking for this court (76 N. J. Law, at page 477, 72 Atl. 298), said: "The difficulty with the indictment in the present case is of such a character that we think it is not cured by verdict and judgment, for the judgment finds the defendant guilty only of that with which he is charged in the indictment, and that does no more than to accuse him of one or the other of several matters, one of which is no offense against the law." And so here the indictment under which the defendants were convicted stated no of And at pages 201 and 202 the learned author, continuing the thought, says: "And yet in case of bare words, positions of this dangerous tendency, though maintained, maliciously, advisedly and directly, and even in the solemnities of preaching and teaching, are not considered overt acts of treason. In no case can a man be argued into the penalties of the acts by inferences and conclusions drawn from what he hath affirmed. The criminal position must be directly maintained, to bring him within the compass of these acts." "Nor will every rash, hasty or unguarded expression, owing perhaps to natural warmth, or thrown out in the heat of disputation, render any person criminal within these acts; the criminal doctrine must be maintained malicious fense against the law. It is a well-settled [ асу. The word "maliciously," in its legal sense, denotes an evil state of mind. The opinion of the Supreme Court suggests: That "an attempt to incite hostility and opposition (forcible hostility and opposition as we construe it) to the government of the United States is sedition, and nothing would be tility and opposition," and that the "indictment added by charging an intent to create such hosdoes ** charge that the defendants acted willfully, knowingly, and unlawfully." attempt. Bishop, in his valuable work on This view appears to be in conflict with the weight of authority, and cannot be susThe opinion of the Supreme Court fur- tained on logical grounds. A criminal atther proceeds upon the theory that the in- tempt is a step taken toward the commission dictment was sufficient without an allega- of a crime, with intent to commit the crime. tion of criminal intent, and that there need Unless there is a criminal intent accompanybe no proof of such intent, because the stat-ing the attempt, there can be no criminal ute does not make criminal intent necessary. The case cited in support of this assertion does not seem to me to pronounce any such drastic doctrine. The legal rule universally recognized by the common law and in this country is that, where the offense is one involving moral turpitude, which includes malice, it is essential that the criminal intent should be alleged and proved on the trial. It will not be inappropriate to refer here to what the learned Mr. Foster said in his incomparable discourse on high treason and kindred offenses, in the year 1762, a period in which sedition laws were in their flower. Section 7, on page 200, reads: "As to meer words supposed to be treasonable, they differ widely from writings in point of real malignity and proper evidence. They are often the effect of meer heat of blood, which in some natures otherwise well disposed, carrieth the man beyond the bounds of decency or prudence. They are always liable to great misconstruction from the ignorance or inattention of the hearers, and too often from a motive truly criminal. And therefore I chose to adhere to the rule which hath been laid down on more occasions than one since the revolution that loose words not relative to any act or design Statutory Crimes, paragraph 391, after discussing the subject of an attempt to publish a libel, concludes, as follows: "On principle we see that we must set out the act which was committed, and the specific intent which accompanied it." The same learned author, in paragraph 71 of volume 2 on Criminal Procedure, says: "Now an attempt to commit a crime is a compound composed of two elements: First, the intent to commit it; and, secondly, an act prompted by the intent, yet falling short of the doing." Paragraph 88 and the paragraphs following present the settled law on this subject, as above expressed. The words "willfully, knowingly, and unlawfully," in the indictment, are not equivalent to an allegation of intent to commit that which the statute denounces as a crime; for a man may do an act forbidden by the statute innocently, but nevertheless the act would be unlawful. He may do it willfully and knowingly-that is, he may perform a conscious act-and yet be guiltless of any criminal intent. The essence of the offense is the intent with which the words were (108 A.) to prosecution for a violation of the statute, [ The refusal of the trial court to direct the indictment must charge that the words a verdict for Tachin was error. The record were spoken to accomplish the object interdicted by the statute. This the indictment fails to do. The indictment charged no crime, and therefore no valid judgment could be pronounced upon the conviction of these defendants, and, the fatal defects in the indictment appearing on the face of the record, a general assignment of error was sufficient to raise the validity of the judgment. As to the defendant Tony Tachin, there was a motion made in his behalf, at the conclusion of the entire case, for a direction of a verdict upon the ground that there was no evidence of words spoken by him, which motion was denied, and an exception was duly taken, upon which error was assigned. In dealing with this phase of the case, I repeat here again what the Supreme Court said: That the indictment charged "that the defendants uttered in substance certain English words therein set forth. At the trial the proof was that the words were uttered in Russian. It is said that this was a fatal variance. We do not doubt that the indictment ought to have averred at the least that the words were uttered in Russian. We are, however, precluded from considering this argument, because it was not made in the trial court; no exception raises the question specifically, and there is no assignment of error." As I read the record, counsel for the defendant Tachin asked the trial court to direct a verdict of acquittal in behalf of his client, because there was no evidence against him of words spoken by him. There was proof that Fedodoff, the other defendant, spoke in Russian, and there was no proof that the defendant spoke the words in the indictment, either in Russian or English. The claim, therefore, made in the trial court, that there was no evidence of words spoken by the defendant, was based upon actual fact. As there was no proof that the words laid in the indictment were spoken by Tachin, it was immaterial, so far as Tachin was concerned, whether they were spoken by Fedodoff in Russian or in English. Now the assignment of error appears to be based specifically upon the refusal of the trial court to direct a verdict of acquittal. plainly shows that the question whether the state had made out a case against him under the indictment and evidence was fairly presented to the trial judge, and in my judgment was entitled to such direction. It seems to me, therefore, that the Supreme Court should have considered and decided the question presented, especially as it appeared that the evidence did not support the averment of the indictment in a most essential particular. It is not disputed that in order to convict the defendants under the indictment and the evidence, it was necessary that the jury should find that the words uttered or the acts done were spoken and done with intent to forcibly incite hostility and opposition to the government of the United States. The trial judge, after repeating the language alleged to have been used by one of the defendants, and emphasizing it with oratorical effect, said: "You may consider that language as being language which tended to incite, abet, promote, and encourage hostility and opposition to the government of the United States." Now it is apparent that the vital question for the jury to determine, in order to arrive at a proper conclusion as to the guilt or innocence of the defendants, was not only whether the defendant Fedodoff spoke the language charged in the indictment, but whether such language was uttered with intent to incite forcible hostility and opposition to the government of the United States. The jury were practically instructed that it could find the defendants guilty as charged in the indictment, if it found that Fedodoff uttered the language, and that Tachin hired the hall for the meeting, and was present throughout the speech, and had declared "that they got the hall and were going to speak." It is manifest that this instruction improperly took away from the consideration of the jury the right to pass upon the sense in which the language was used by Fedodoff and the intent with which he uttered it. There was no testimony in the case which would permit any reasonable inference that Tachin was aware that Fedodoff would utter the language alleged in the indictment. For the various reasons stated, the judgment should be reversed. (118 Me. 342) FISKE v. H. E. DUNBAR & CO. The contract made in the fall of 1917. quantity was to be 100 cords more or less; the quality according to the plaintiff's testi (Supreme Judicial Court of Maine. Nov. 24, mony was to be anything that staves could 1919.) be made out of, including hemlock, cedar, and poplar if good. According to the defendant, 1. NEW TRIAL 168-DISPUTED QUESTIONS "Extra spar growth wood"; the size not less OF AUTHORITY FOR JURY. Disputed authority of agent is for the jury, and not for Supreme Judicial Court on motion for new trial. than four inches in diameter at the top; the price, $5 per cord; the place of delivery, Toddy Pond. Sixty and one-eighth cords were cut, haul 2. SALES 156, 201(1)-EFFECT OF DELIV ed, and landed at the specified place during ERY AT PLACE AGREED. Generally, delivery of personal property at the place agreed on or designated by the buyer is a completed delivery, and operates as a perfected transfer of the property. the ensuing winter of 1917-18. Of this, 471/8 cords were of spruce, fir, pine, and cedar; 12 cords of poplar, one cord of hard wood, and about three cords were under four inches at the top. Three payments aggre 3. SALES 168(2)-RIGHT OF EXAMINATION gating $105 were made on account of the pur AND REJECTION AFTER DELIVERY. Delivery at the designated place does not absolutely preclude the buyer from right of examination to ascertain whether the goods are of the contract quality and to reject them if they are not, the acceptance implied from such delivery being conditional to that extent. 4. SALES 181(13)-EVIDENCE AS TO LOSS BY SILENCE AND DELAY OF RIGHT TO REJECT. Evidence held to authorize finding that right to reject stave wood was lost by silence and delay for an unreasonable time after delivery of the wood at place designated. chase price during the progress of the work. The work was completed about the last of March, 1918. In June the parties met, and the plaintiff demanded the balance due, while the defendant Dunbar demanded the return of the $105 already paid. This suit followed, and, the plaintiff having secured a verdict of $170.62, the defendants brought the case to this court on general motion. [1] The contention which the defendants urge most strongly is that there was no acceptance of the wood by them, and therefore this action cannot lie. In answer to this, the plaintiff says in the 5. SALES 428-RIGHT TO SET OFF BREACH first place that there was a virtual accept OF WARRANTY OF QUALITY IN ACTION FOR A buyer may set up a breach of warranty of quality in an action for purchase price and thereby diminish the amount recoverable. 6. TRIAL 315-COMPROMISE VERDICT. The verdict for less than claimed in action for price of goods sold will not be considered a compromise verdict; defendant in addition to claiming that there was no acceptance, and therefore that the action would not lie, setting up a breach of the warranty of quality, and introducing evidence in support thereof. On Motion from Supreme Judicial Court, Hancock County, at Law. Action by Allen A. Fiske against H. E. Dunbar & Co. Verdict for plaintiff, and defendants bring the case to the Supreme Judicial Court on general motion. Motion overruled. ance in fact; that Mr. Grindal, who was in the employ of the defendants as a foreman in woods operations, and who represented them in designating the landing place of this particular lot, was familiar with its quality, placed the caps upon the piles so that they might float, never made the slightest objection, and, on the contrary, sent word to the defendant Dunbar that it was all right. The defendants reply that Grindal had no authority to accept the wood in their behalf. This then became a question of disputed fact, which the jury were obliged to pass upon. [2] In the second place, it is a general rule of the law of sales that delivery of personal property at the place agreed upon or designated by the vendee is a completed delivery, and operates as a perfected transfer of the property. Lombard v. Paper Co., 101 Me. 114-119, 63 Atl. 555, 6 L. R. A. (N. S.) 180. There is some evidence in this case as to whether this wood was landed at the proper place; but it is clear that the landing was approved by the defendants' foreman, Mr. GrinW. E. Whiting, of Ellsworth, for plaintiff. dal, and in their brief the defendants now W. C. Conary, of Bucksport, for defend-state that that question is not raised in this Argued before CORNISH, C. J., and HANSON, PHILBROOK, MORRILL, and DEASY, JJ. ants. CORNISH, C. J. Action of assumpsit to recover the balance due for certain stave wood sold to the defendants under a verbal court. [3] Delivery, however, at the designated place, does not absolutely preclude the buyer from the right of examination in order to ascertain whether the goods are of the con (108 A.) tract quality and to reject them in case they | thereby, because their verdict shows a reducare not. The acceptance implied from such tion from the full amount claimed. delivery may be considered as conditional to The entry should be: that extent. There are limitations, however, Motion overruled. upon that right of rejection. The rule of law which governs under such conditions has been stated by this court as follows: (118 Me. 352) VILLAGE CORPORATION. (Supreme Judicial Court of Maine. Nov. 25, 1919.) "But the right of rejection must be for good MERROW v. INHABITANTS OF NORWAY cause and not upon false or frivolous grounds. And the right must be exercised within a reasonable time, or it is lost and the sale becomes absolute. Silence and delay for an unreasonable time are conclusive evidence of acceptance. The burden of action is upon the buyer, and he ENTRY, WRIT OF 15-SUFFICIENCY OF DEmust seasonably notify the seller of his refusal to accept the goods." White v. Harvey, 85 Me. 212, 27 Atl. 106; Greenleaf v. Hamilton, 94 Me. 118-121, 46 Atl. 798. [4] Under this rule the jury were amply justified in finding the right of rejection here to have been lost. The work was completed by March 27th and the wood all landed on Toddy Pond. The plaintiff, as he says, then requested the defendant Dunbar to measure the wood, and on the day before the plaintiff moved away, which was about the first of April, Dunbar did go to the landing and examine the wood, but did not stop at the plaintiff's house, which was nearby, nor did he notify him by letter or otherwise that he would not accept the wood. It was not until early in June that he so notified him. That was the first intimation that the the plaintiff had that the quality was unsatisfactory and the wood rejected. Surely this silence and delay were for an unreasonable time, and are strong, if not conclusive, evidence of acceptance. At least, the defendants led the plaintiff to so believe, and he had a right to act on that belief. Actual acceptance may be inferred from the conduct of the parties, and such inference was legitimate here. [5, 6] The defendants refer to the fact that the verdict, although for the plaintiff, was not for the full amount claimed, a compromise verdict as they term it, and urge that it should have been either for the plaintiff for the full amount or else for the defendants. Not necessarily so. The vendee after receiving possession of goods has three remedies against the vendor for a breach of warranty of quality: First, the right to reject the goods if the title has not passed; second, a cross-action for damages for the breach; third, a right to set up the breach in an action for the purchase price and thereby diminish the amount recoverable. Morse v. Moore, 83 Me. 473-483, 22 Atl. 362, 13 L. R. A. 224, 23 Am. St. Rep. 783. In this case the last remedy was adopted, and the defendants introduced considerable evidence tending to show inferior quality. The jury seem to have been influenced to some extent SCRIPTION OF LAND. Under Rev. St. c. 109, § 21, providing that in a real action demanded premises shall be clearly described in the declaration, description of premises in writ of entry as "the lot of land in Norway Village Corporation which is known as the Fordyce McAllister place" held with reasonable certainty what lands were insufficient, as enabling defendant village to know tended, that being the test, in view of the original enactment (Pub. Laws 1826, c. 344, § 1). Report from Supreme Judicial Court, Oxford County, at Law. Action by Mark Merrow against the Inhabitants of Norway Village Corporation, resulting in judgment for plaintiff. On report to the Supreme Judicial Court. Judgment for plaintiff, with costs. Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ. Alton C. Wheeler, of South Paris, for plaintiff. Albert J. Stearns, of Norway, and William W. Gallagher, of Caribou, for defendants. CORNISH, C. J. On agreed statement. At the May term, 1918, of the Supreme Judicial Court for Oxford county the plaintiff brought this writ of entry, demanding "against the said defendant the possession of the lot of land in Norway Village Corporation which is known as the Fordyce McAllister place," etc. On the second day of the return term the defendants filed a disclaimer of the entire tract and of all interest therein. At the February term, 1919, the defendants filed a special demurrer to the writ on the ground that the description of the demanded premises was not sufficiently definite and precise, and was not so certain that seisin could be delivered to the sheriff without reference to some description dehors the writ. The Presiding Justice overruled the demurrer and gave judgment for the plaintiff. To this ruling the defendant took exceptions, but did not seasonably perfect them. At the May term, 1919, counsel agreed that the case should not be prejudiced thereby, but that the cause should be reported to the law court up For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |