Hoover v. State , 59 Ala. 57 ( 1877 )

STONE, J. —

In Green v. The State, at the present term, we entered into an elaborate discussion of section 4189 of the Code of 1876, which prohibits, under severe penalties, intermarriage and living in adultery or fornication between white and colored persons, and declares such marriages void. "We are satisfied with the arguments then used, sustained, as ■the opinion was, by the highest authority, and will not repeat or review it here. The marriage being absolutely void, the •offending parties must be treated as unmarried persons, and their sexual cohabitation as fornication within the statute.

The act “ to establish a new penal code,” Pamph. Acts 121, approved February 23,1866, contains the section which is now 4189 of the Code of 1876. That section was carried into the Code of 1867 as section 3602. It was approved in the adoption of each of the Codes of 1867 and 1876. The enactment of the statute “ to establish a new penal code,” was a constitutional enactment of all the provisions contained therein. — Dew v. Cunningham, 28 Ala. 466.

The Circuit Court did not err in refusing to receive testimony that, before the alleged marriage, the probate judge •counselled the defendant it was lawful for him to marry a white woman. The maxim, ignorantia legis, neminem excu■sat, is a stern, but inflexible and necessary rule of law, that has no exceptions in judicial administration, and the former erroneous ruling of this court furnishes no excuse which we can recognize. — Boyd v. The State, December term, 1876; S. C. 4 Otto, 645.

It is very true that to constitute a crime, there must be both an act and an intent. But, in such a case as this, it is enough if the act be knowingly and intentionally committed. The law makes the act the offence, and does not go farther, and require proof that the offenders intended, by the prohibited act, to violate the law. The act being intentionally done, the criminality necessarily follows.

There is no error in the record, but we consider this a case for executive clemency, on condition there be given satisfactory assurance of a discontinuance of this very gross offence against morals and decorum. Should the crime be repeated or continued, the law should lay a heavy restraining hand on the offenders.

Affirmed.