568 HARVARD LAW RE VIEW- of judgment were a mere device on the part of the officers of the corporation to validate an u/tra vires contract, the judgment would clearly be open to attack. Cf. Neml v. Clifford, 55 Wis. i6i. The somewhat analogous case of a judgment against a married woman has caused much diversity of opinion, i Black on Judgments, §§ 54, 55. Criminal Law — Comments on Defendant's Failure to Testify. — A stat- ute forbade the prosecution in a criminal case to comment on the failure of the defend- ant to testify in his own behalf. Held, that it is not error if the court make such comments. Regina v. Rhodes, [1899] i Q. B. D. 77. Under a similar statute, held, it is reversible error for the prosecuting attorney to make such comments, even though the court subsequently instructed the jury to disre- gard them. State v. Marceaux, 24 So. Rep. 61 1 (La.). The cases are of course distinguishable, but it cannot be doubted that the English case would not be followed in this country. All remarks of the court in criminal cases as to the credibility of witnesses and the weight of evidence, while allowed in England (see remarks of the court in the principal case), are in this country grounds for a new trial. State V. Parker, 66 '^.CGzOt; Robeison. State,2^?>o.i.ei). 4fj<(¥^..). It seems that the English case deprives the prisoner of the protection which the statute was in- tended to give him, but since the case did not come under the words of the statute, the court refused to take from the presiding justice the power of supervision which is allowed in England, i Thompson, Trials, 209, 210. Criminal Law — Provocation — Mere Words. — The deceased ravished the prisoner's daughter. When upbraided by the prisoner he made a taunting reply, and the prisoner killed him. Held, that the question whether such words constituted a reasonable provi^cation should have been left to the jury. State v. Grugin, 47 S. W. Rep. 1058 (Mo.). See Notes. Criminal Law — Smuggling. — Diamonds intended to be smuggled were seized by a revenue officer before they were actually brought ashore from the ship. Held, that these facts will not justify a conviction for smuggling. Keck v. U. S., 19 Sup. Ct. Rep. 254. See Notes. Criminal Law — Statutory Offences Requiring no Intent. — The defend- ant was indicted, under a statute, for selling adulterated milk. He proved that the milk was adulterated while being delivered, by some unknown person not in his employ and without any negligence on his part. Held, that this is no defence. Parker v. Allen, [1899] I Q. B. D. 20. It is well settled that statutory offences of this sort, being mere breaches of police regulations or torts against the public, require no criminal intent. Com. v. Farrer, 9 Allen, 489 ; Com. v. Weiss, 139 Pa. St. 247. , Contra, Teague v. State, 25 Tex. App. 577 ; Mulreed v. State, 107 Ind. 62. No intent being necessary, the only question is, whether the defendant did the criminal act, and if he sold the article in an adulterated condition, as in the principal case, it would seem immaterial how the article came to be in that condition. A previous English case has held the defendant liable when the condition of the article sold was due to acts of the defendant's employees, although done against his express orders. Brown v. Foot, L. T. N. s. 649. The principal case goes further than any previous decision, but it is correct on principle. See 12 Amer. Law Rev. 469, Evidence — Character — Civil Suit. — The deceased, while crossing the de fendants' tracks, was struck by a train, the only eye-witnesses being the engineer and fireman. In an action to recover damages for causing the death, Held, that evidence that deceased was a careful man, and had previously used this crossing with due care, is admissible on the issue of his contributory negligence. Missouri Pac. Ry. Co. v. Moffatt, 55 Pac. Rep. 837 (Kan., Sup. Ct.). A rule of evidence excludes the use of general reputation or actual character as a ba- sis of inference to conduct. Missouri, ^c., Ry. Co. -v. Johnson, 48 S. W. Rep. 568 (Tex.). Some courts admit an exception where there are no eye-witnesses to the accident, on the ground that it is the best evidence to be had. Chicago, ^c. Ry. Co. v. Clark, 108 111. 113. Even in such cases the evidence is equally open to the true objection, namely, that it is too slight and conjectural, and tends to prejudice the minds of the jury. That one must bring the best evidence he can, and that if he does it is enough, was a useful principle in the last century, when the law of evidence was forming. It has now outgrown its usefulness, and may be considered obsolete as a working rule. Therefore, where the above-mentioned exception has become established, it seems better to con- fine it to the letter, and to exclude the evidence when there are any eye-witnesses to the accident. Consequently the principal case might better have been decided the other way. See 12 IIarv. Law Rev. 500.
