Page:Federal Reporter, 1st Series, Volume 10.djvu/746

 734 FEDERAL REPORTES. �of all the other evidence in the case, it was entitled to; and in case the evidence of his guilt or innocence was evenly balanced, evi- dence of defendant's good character would be sufficient to justify an acquittai. But as the defendant, as a witness, admitted the exclu- sion of the prosecuting witness from the privileges of the school, and that he excluded him under color and by authority of a statute of the state, and because of his color, the evidence of defendant's good char- acter becomes immaterial, and is entitled to no consideration atyour hands. �3. It bas been further contended that as defendant was advised by counsel and acted in the belief that he was authorized by law to exclude the witness from the school, he is guiltless of any crime, and entitled, on this ground, to an acquittai. But this position, gentle- men, cannot be conceded. If the advice of counsel could be pleaded and relied on as a good defence to an indictment for a violation of the criminal laws, the execution of these laws would depend more on the construction which the accused and their legal advisers might place upon them, than upon their interpretation by the courts. In fact, if Buch was the proper ruling, the recent amecdments to the national constitution would, through the advice of counsel, and the honest or simulated convictions of offenders, be rendered nugatory or eliminated from that instrument. The principle contended for is, to a limited extent, applicable to civil actions. For instance, if A. pro- cured B. to be prosecuted for an alleged crime, and B. should be acquitted thereof, and sue A. for having had him prosecuted without probable cause, the law, in its tenderness, would permit A. to prove that he acted in good faith upon the advice, honestly obtained, of a reputable attorney, as a defence to B.'s suit. But the principle bas not been carried into the criminal law. Such evidence would address itself strongly to the discretion of the court after conviction in miti- gation of punishment, but constitutes no sufficient and valid defence to an indictment for crime. The legal profession includes many able, honest, and useful members. But fhere are others who are deficient in capacity, learning, or honesty, who are incapable of giving Sound and wholesome counsel. There are others who it may be are capable of performing a better part, but whose custom is to ascertain what their clients most desire, and advise them accordingly. One- half of the litigation with which the courts are burdened, results, I think, directly or remotely from the misadviee of attorneys. It may be that defendant acted in good faith upon the instructions received from his attorney, and honestly believed that he was acting in accord- ��� �