Beckham v. Nacke

• Citation: 56 Mo. 546
• Parties: SARAH A. BECKHAM, Respondent, v. ANTHONY NACKE, Appellant.
• Decision Date: 31 March 1874
• Court: United States State Supreme Court of Missouri

56 Mo. 546

SARAH A. BECKHAM, Respondent,

v.ANTHONY NACKE, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Melville Smith, for Appellant.

I. The statute upon which this action is based is a penal statute and must be strictly construed. (Allsup vs. Ross, 24 Mo., 284; Vaughn vs. McQueen, 9 Mo., 330.)

II. Being a penal statute, the penalty cannot be inflicted unless the act is clearly within the letter and spirit of the statute. The intent is the essence of the offense. The will must concur with the act. Ignorance or mistake in point of fact is in all cases a sufficient excuse. (Pot. Dwar. Stat., 247; Duncan vs. State, 7 Humph., 148; Com. vs. Stout, 7 B. Mon., 247; Fletcher vs. Lord Sondes, 3 Bing., 580; Meyer vs. State, 1 Conn., 502, 505; Price vs. Thornton, 10 Mo., 135, 140; Brig Wm. Gray, 1 Paine 16.)

III. Statutes must be interpreted according to the intent and meaning, and not according to the letter. (Pott. Dwar. Stat., 144, and cases cited; State vs. King, 44 Mo., 285); and even though it seem contrary to the letter. (Sedg. Stat. Law, 297, 298; Bac. Abr., Tit. Stat., I, 5, 10; State, ex rel. etc. vs. King, 44 Mo., 285; State, ex rel., vs. Emerson, 39 Mo., 80; Price, vs. Thornton 10 Mo., 136; Reddick vs. Governor, etc., 1 Mo., 147; Margate Pier Co., vs. Hannam, 3 B. & Ald., 266; Canal Co. vs. R. R. Co., 4 Gill. & J., 152; 3 Cow., 89; 15 Johns. R., 358.)

A statute will not generally make an act criminal, however broad its language, unless the offender's intent concurred with the act; because the common law required such concurrence to constitute a crime. (Bish. Stat. Cr., 133, and cases cited.)

The general words of a penal statute shall be restrained for the benefit of him against whom the penalty is inflicted. (Pot. Dwar., 245; The Enterprise, 1 Paine, 32; The Mariana Flora, 11 Wheat., 1.)

The will must concur with the act. Hence, ignorance or mistake in point of fact (not law) is, in all cases of supposed offense, a sufficient excuse. (Meyers vs. State, 1 Conn., 502, 505; The Enterprise, 1 Paine, 32; The Brig Wm. Gray, 1 Paine, 16; Price vs. Thornton, 10 Mo., 135, 140; Suffolk Bank vs. Worcester, 5 Pick., 106; The Mariana Flora, 11 Wheat., 1; Wertheimer vs. Howard, 30 Mo., 421.)

C. M. Whitney, for Respondent.

I. The reading in evidence of an entry of the minor's birth made by the deceased father in the family Bible as a part of the family record, within three hours after the child's birth, which record was ever afterward kept in the family, was clearly admissible. (1 Greenlf. Ev., [Redf. Ed.] p. 119, § 104.)

II. Proof of general reputation in the family as to age of minor, and that there was no dispute therein in respect of such age, was proper. (1 Greenl. Ev., [Redf. Ed.] pp. 118, 119, §§ 103, 104.)

The magistrate, in case of doubt, must strictly follow the statute. It will not do to inquire of the party applying to be married, his age, or of any other person. He is not charged with the duty of seeking information as to age. The defendant had no right to rely on the minor's statement as to his age, and if he chose to guess as to his age by his looks, he did it at his peril. (Donahue vs. Dougherty, 5 Rawle, 124.)

ADAMS, Judge, delivered the opinion of the court.

This was a qui tam action brought by the plaintiff against the defendant, who was a justice of the peace, for the penalty imposed by statute for joining in marriage her minor son without her consent.

The plaintiff was a widow and had the sole care and custody of her son, as surviving parent. The son was nineteen years of age and had the appearance of being over twenty-one, and had induced the defendant to perform the ceremony, by falsely representing that he was of age.

First--The only material point presented by the record is, whether the defendant could justify himself by setting up as a defense his want of knowledge of the age of the minor, when he acted in good faith and used due diligence to procure the required information. This action is founded on the sixth section of the marriage act (2 Wagn. Stat., 930) which prescribes that “if any such person shall join in marriage any minor without a written certificate of consent under the hand of the parent, guardian or other person under whose care and government the minor may be, or the presence and consent of the parent, etc., such person shall forfeit three hundred dollars, to be recovered with costs of suit by civil action in any court having cognizance, by the parent, guardian, or person having charge of such minor; the one-half of the forfeiture to the use of the county, and the other half to the use of the person who shall prosecute for the same.”

The statute provides the means by which any person performing the ceremony may easily protect himself from this penalty. He must have the written consent of the parent, guardian, or other person having charge of the minor. It is not sufficient that he should act under the bona fide belief that such minor...