Opinion
(July Term, 1817.)
The penalty under the act of 1741, for mismarking cattle, cannot be incurred unless the offense be willfully done.
WARRANT to recover the penalty of £ 10, imposed by the act of 1741, ch. ______, for mismarking one of the plaintiff's cattle. The defendant insisted, by way of defense, that he had done it ignorantly, believing, at the time, that the cow belonged to himself. And sundry witnesses were examined to prove that not only the defendant, but others, believed the cow belonged to him. There was evidence on both sides as to the identity of the cow.
His Honor who tried the cause charged the jury that the defendant had incurred the penalty by mismarking the cow, although he believed, at the time, that the cow belonged to himself.
The jury found for the plaintiff, and a rule was moved for that the plaintiff show cause why a new trial should not be granted, on the ground of misdirection by the court.
From the whole complexion of the act it is evident that it was the fraudulent conduct of a party the Legislature intended to punish. For this case is connected with a case of stealing. The (626) affair, therefore, which the Legislature intended to put down was that of willful mismarking, and we should be imputing to them a motive which nothing short of positive declaration could justify were we to suppose they, in any case, intended to inflict a penalty upon an innocent man, who was acting honestly upon a total mistake as to facts.
Gov. v. Howard, 5 N.C. 168, is an authority in point, where it was held, that a purchaser of a slave brought into this State, if he was acting honestly and ignorant of that fact, was not liable to pay the penalty.
New trial.
NOTE. — This offense is now punished by indictment in the same manner as petit larceny. 1 Rev. Stat., ch. 34, sec. 55.