As it is cepit and asportavit, so it must be felonice, or animo furandi, otherwise it is not felony, for it is the mind that makes the taking of another's goods to be a felony, or a bare trespass only; but because the intention and mind are secret, the intention must be judged of by the circumstances of the fact, and these circumstances are various, and may sometimes deceive, yet regularly and ordinarily these circumstances following direct in the case. If A., thinking he hath a title to the house of B., seizeth it as his own ... this regularly makes no felony, but a trespass only; but yet this may be a trick to color a felony, and the ordinary discovery of a felonious intent is, if the party doth it secretly or being charged with the goods denies it. (1 Hale's P. C, 509.)
I concede, that if Miss Anthony voted, knowing that as a woman she had no right to vote, she may properly be convicted, and that if she had dressed herself in men's apparel, and assumed a man's name, or resorted to any other artifice to deceive the board of inspectors, the jury might properly regard her claim of right to be merely colorable, and might, in their judgment, pronounce her guilty of the offense charged, in case the constitution has not secured to her the right she claimed. All I claim is, that if she voted in perfect good faith, believing that it was her right, she has committed no crime. An innocent mistake, whether of law or fact, though a wrongful act may be done in pursuance of it, can not constitute a crime.
[The following cases and authorities were referred to and commented upon by the counsel, as sustaining his positions: U. S. vs. Conover, 3 McLean's Rep., 573; The State vs. McDonald, 4 Harrington, 555; The State vs. Homes, 17 Mo., 379; Rex vs. Hall, 3 C. & P., 409 (S. C. 14 Eng., C. L.); The Queen vs. Reed, 1 C. &. M., 306 (S. C. 41 Eng., C. L.); Lancaster's Case, 3 Leon, 208; Starkie on Ev., Part IV., Vol. 2, p. 828, 3d Am. Ed.]
The counsel then said, there are some cases which I concede can not be reconciled with the position which I have endeavored to maintain, and I am sorry to say that one of them is found in the reports of this State. As the cases are referred to in that, and the principle, if they can be said to stand on any principle, is in all of them the same, it will only be incumbent on me to notice that one. That case is not only irreconcilable with the numerous authorities and the fundamental principles of criminal law to which I have referred, but the enormity of its injustice is sufficient alone to condemn it. I refer to the case of Hamilton vs. The People (57 Barb., 725). In that case Hamilton had been convicted of a misdemeanor, in having voted at a general election, after having been previously convicted of a felony, and sentenced to two years imprisonment in the State prison, and not having been pardoned; the conviction having by law deprived him of citizenship and right to vote, unless pardoned and restored to citizenship. The case came up before the General Term of the Supreme Court, on writ of error. It appeared that on the trial evidence was offered, that before the prisoner was discharged from the State prison, he and his father applied to the Governor for a pardon, and that the Governor replied in writing, that on the ground of the prisoner's being a minor at the time of his discharge from prison, a pardon would not be necessary, and that he would be entitled to all the rights of a citizen on his coming of age. They also applied to two respectable counselors of the Supreme Court, and they confirmed the Governor's opinion. All this evidence was rejected. It appeared that the prisoner was seventeen years old when convicted of the felony, and was nineteen when discharged from prison. The rejection of the evidence was approved by the Supreme Court on the ground that the prisoner was bound to know the law, and was presumed to do so, and his conviction was accordingly confirmed.
