grounds to which I have referred, Miss Anthony had a lawful right to vote; that her vote was properly received and counted; that the first section of the XIV. Amendment secured to her that right, and did not need the aid of any further legislation. But conceding that I may be in error in supposing that Miss Anthony had a right to vote, she has been guilty of no crime, if she voted in good faith believing that she had such right. This proposition appears to me so obvious, that were it not for the severity to my client of the consequences which may follow a conviction, I should not deem it necessary to discuss it.
To make out the offense, it is incumbent on the prosecution to show affirmatively, not only that the defendant knowingly voted, but that she so voted knowing that she had no right to vote. That is, the term "knowingly" applies, not to the fact of voting, but to the fact of want of right. Any other interpretation of the language would be absurd. We can not conceive of a case where a party could vote without knowledge of the fact of voting, and to apply the term "knowingly" to the mere act of voting, would make nonsense of the statute. This word was inserted as defining the essence of the offense, and it limits the criminality to cases where the voting is not only without right, but where it is done willfully, with a knowledge that it is without right. Short of that there is no offense within the statute. This would be so upon well-established principles, even if the word "knowingly" had been omitted, but that word was inserted to prevent the possibility of doubt on the subject, and to furnish security against the inability of stupid or prejudiced judges or jurors, to distinguish between willful wrong and innocent mistake. If the statute had been merely that "if at any election for representative in Congress any person shall vote without having a lawful right to vote, such person shall be deemed guilty of a crime," there could have been justly no conviction under it without proof that the party voted knowing that he had not a right to vote. If he voted innocently supposing he had the right to vote, but had not, it would not be an offense within the statute. An innocent mistake is not a crime, and no amount of judicial decisions can make it such. Mr. Bishop says, (I Cr. Law, § 205),
There can be no crime unless a culpable intent accompanies the criminal act. The same author (1 Cr. Prac. § 521), repeated in other words, the same idea: In order to render a party criminally responsible, a vicious will must concur with a wrongful act.
I quote from a more distinguished author:
Felony is always accompanied with an evil intention, and therefore shall not be imputed to a mere mistake or misanimadversion, as where persons break open a door, in order to execute a warrant, which will not justify such proceeding: Affectio enim tua nomen imponit operi tuo: item crimen non contrahitur nisi nocendi, voluntas intercedat, which, as I understand, may read: For your violation puts the name upon your act; and a crime is not committed unless the will of the offender takes part in it. (1 Hawk. P. C., p. 99, Ch. 25, § 3.)
