or wilfully,89 but not where it is made an offense to do such act carelessly,90 nor where the law fastens upon a person unconditional knowledge of a fact, conclusive against any proof to the contrary, as an irrebuttable legal presumption.91 It has been said that the courts will be slow to find a legislative intention to condemn a man for not knowing that which he cannot know.92 Statutes which in general terms exempt from liability persons who commit offenses through ignorance or mistake of fact have been held not to apply to cases where criminal intent is not an essential element of the offense; 93 but there is authority to the effect that they apply to all cases except such as are taken out of their operation by some special provision of law.94 § 173. Particular statutes. Ignorance or mistake of fact, though bona fide, and not due to negligence, has been held by some of the courts, though in some cases not by others, to be no defense in prosecutions under statutes punishing the following offenses: Receiving two or more lunatics into an unlicensed house; 95 transporting slaves without the permission of the owner, and the like; 96 cutting and removing timber from school lands; 97 keeping for sale or selling naphtha under an assumed name; 98 having in one's possession a motor vehicle from open to him. Goodman v. Com., 169 Ky. 542, 184 S. W. 876. 39 A person who in good faith cuts timber from land upon which he believes he has the legal right to go, and to which he has such a title as to justify an honest belief that he has a right to do so, cannot be convicted of wilfully cutting timber on the land of another. Hateley v. State, 118 Ga 79, 44 S. E. 852. See also § 97, supra. 90 For an officer to "'carelessly'. allow a prisoner to escape. Garver v. Territory, 5 Okla. 342, 49 Pac. 470. 91 So it is no defense to a prosecution for illegal voting by one who was disqualified because of a previous convietion of an offense that he had forgotten that he had been so convicted. Gandy v. State, 82 Ala. 61, 2 So. 465. 92 It has been said that the courts will be slow to find a legislative in tention to condemn a man for not knowing that which he cannot know. People v. Rice, 161 Mich. 657, 126 N. W. 981. 93 Garver v. Territory, 5 Okla, 342, 49 Pac. 470; State v. Dorman, 9 S. D. 528, 70 N. W. 848. 94 Patrick v. State, 45 Tex. Cr. 587, 78 S. W. 947. 95 Reg. v. Bishop, 5 Q. B. Div. 259. 96 State v. Baltimore & S. Steam Co., 13 Md. 181. It is a defense to a prosecution for receiving or transporting of any colored person by the owner or captain of any steamboat, without particular evidence of his freedom. Duncan v. State, 7 Humph. (Tenn.) 148. It is a defense to a prosecution for harboring or secreting slaves. Birney v. State, 8 Ohio 230. 97 State v. Dorman, 9 S. D. 528, 70 N. W. 848. 98 Gately v. Taylor, 211 Mass. 60, which the manufacturer's number has been removed; 99 shipping game or receiving the same for shipment out of the state;1 keeping for sale or selling adulterated food or drugs, and violating other statutory provisions regulating the sale of articles of food. 6 5 Mistake or ignorance of fact, when bona fide and not due to negligence, has been held a good defense in prosecutions under statutes punishing the following offenses: Being in possession of government stores marked with the government mark; allowing a vehicle to be used for travel on Sunday, except in a case of necessity or charity; keeping for sale or selling diseased meat; permitting Canada thistles to mature seed;" perjury, illegal voting, and keeping a disorderly house.10 The authorities are in conflict as to whether ignorance or mistake of fact is a defense to a prosecution for permitting minors to play billiards, or to be in billiard rooms or saloons in violation of a statute,11 and there was a similar conflict of authority as to whether 97 N. E. 619, 39 L. R. A. (N. S.) 472; Com. v. Wentworth, 118 Mass. 441. 99 People v. Johnson, 288 Ill. 442, 123 N. E. 543, 4 A. L. R. 1535. 1 Wells Fargo & Co. Express v. State, 79 Ark. 349, 96 S. W. 189. 2 State v. Kelly, 54 Ohio St. 166, 177, 43 N. E. 163. Keeping for sale or selling adulterated milk, Com. v. Smith, 103 Mass. 444; Com. v. Waite, 11 Allen (Mass.) 264, 87 Am. Dec. 711; Com. v. Farren, Allen (Mass.) 489; People v. Kibler, 106 N. Y. 321, 12 N. E. 795; State v. Smith, 10 R. I. 258; or confectionery, Com. v. Chase, 125 Mass, 202; or tobacco, Reg. v. Woodrow, 15 M. & W. 404; or liquors. State v. Stanton, 37 Conn. 421. 3 Keeping for sale or selling oleomargarine not so marked or colored as to show what it is, State v. Rogers, 95 Me. 94, 49 Atl. 564, 85 Am. St. Rep. 395; Fox v. State, 94 Md. 143, 50 Atl. 700, 89 Am. St. Rep. 419; State v. Ryan, 70 N. H. 196, 46 Atl. 49, 85 Am. St. Rep. 629; State v. Newton, 50 N. J. L. 534, 14 Atl. 604; Com. v. Weiss, 139 Pa. St. 247, 21 Atl. 10; 23 Am. St. Rep. 182; or without notifying the person to whom it is furnished or sold that it is not butter. Welch v. State, 145 Wis. 86, 129 N. W. 656, 32 L. R. A. (N. S.) 746. Sale of vinegar below a certain standard. People v. Worden Grocer Co., 118 Mich. 604, 77 N. W. 315. Killing, for the purpose of sale, a calf less than four weeks old. Conn. v. Raymond, 97 Mass. 567. 4 Reg. v. Sleep, Leigh & C. 44. See also Rex v. Banks, 1 Esp. 144; Anon., Fost. C. L. 439. 5 Myers v. State, 1 Conn. 502. 6 State v. Snyder, 44 Mo. App. 429; Teague v. State, 25 Tex. App. 577, 8 S. W. 667. 7 Story v. People, 79 Ill. App. 562. 9 Carter v. State, 55 Ala. 181; Gordon v. State, 52 Ala. 308, 23 Am. Rep. 575; McGuire v. State, 7 Humph. (Tenn.) 54. And see § 1216, infra. 11 It was held not to be a defense in the following cases: State v. Kinkead, 57 Conn. 173, 17 Atl. 855; State v. Probasco, 62 Iowa 400, 17 N. W. 607; Com. v. Emmons, 98 Mass. 6. it was a defense to prosecutions for violations of statutes relative to the keeping, sale and transportation of intoxicating liquors in force prior to the adoption of the eighteenth amendment.12 Whether Massachusetts. Com. v. Joslin, 158 Mass. 482; 33 N. E. 653, 21 L. R. A. 449; Com. v. Stevens, 155 Mass. 291, 29 N. E. 508. And see Com. v. Finnegan, 124 Mass. 324. Minnesota. State V. Heck, 23 Minn 549. Oregon. State v. Brown, 73 Ore. 325, 144 Pac. 444; State v. Gulley, 41 Ore. 318, 70 Pac. 385. Pennsylvania. Com. v. Zelt, 138 Pa. St. 615, 21 Atl. 7; In re Carlson's License, 127 Pa. St. 330, 18 Atl. 8. South Dakota. State v. Sasse, 6 S. D. 212, 60 N. W. 853. Vermont. State v. Gilmore, 80 Vt. 514, 68 Atl. 658, 16 L. R. A. (N. S.) 786, 13 Ann. Cas. 321. West Virginia. State v. Nichols, 67 W. Va. 659, 69 S. E. 304, 33 L. R. A. (N. S.) 419, 21 Ann. Cas. 184; State v. Baer, 37 W. Va. 1, 16 S. E. 368; State v. Farr, 34 W. Va. 84, 11 S. E. 737; State v. Cain, 9 W. Va. 559. Wisconsin. State v. Hartfiel, 24 Wis. 60. And in the following cases it was held to be a defense: Alder v. State, 55 Ala. 16; Smith v. State, 55 Ala. 1; Mulreed v. State, 107 Ind. 62, 7 N. E. 884; Robinius v. State, 63 Ind. 235; Williams v. State, 48 Ind. 306; Goetz v. State, 41 Ind. 162; Brown v. State, 24 Ind. 113; Crabtree v. State, 30 Ohio St. 382. In Michigan it was held not to be a defense in the case of sales by druggists. People V. Damm, 183 Mich. 554, 149 N. W. 1002; People v. Sharrar, 164 Mich. 267, 127 N. W. 801, 130 N. W. 693; People v. Curtis, 129 Mich. 1, 87 N. W. 1040, 95 Am. St. Rep. 404. But it was held to be a defense in the case of sales by persons other than druggists. People V. Damm, 183 Mich. 554, 149 N. W. 1002, reviewing the Michigan cases; People v. Averill, 179 Mich. 224, 146 N. W. 189; People v. Bronner, 145 Mich. 399, 108 N. W. 672. V. In the following cases it was held not to be a defense to prosecutions for violation of other provisions of the statutes, Com. v. Mixer, 207 Mass. 141, 93 N. E. 249, 31 L. R. A. (N. S.) 467, 20 Ann. Cas. 1152; Com. O'Kean, 152 Mass 584, 26 N. E. 97; Com. v. Goodman, 97 Mass. 117; Com. v. Boynton, 2 Allen (Mass.) 160; People v. Hatinger, 174 Mich. 333, 140 N. W. 648; King v. State, 66 Miss. 502, 6 So. 188; People v. D'Antonio, 150 N. Y. App. Div. 109, 134 N. Y. Supp. 657; and in the following cases to be a defense. In re Ahart, 172 Cal. 762, 159 Pac. 160; Farrell v. State, 32 Ohio St. 456, 30 Am. Rep. 614; Mealer v. State, 66 Tex. Cr. 140, 145 S. W. 353; Patrick v. State, 45 Tex. Cr. 587, 78 S. W. 947. A carrier accepting for transporta it is a defense in prosecutions for abduction, 13 statutory rape,14 adultery,15 and bigamy,16 and trespass, 17 will be considered in the chapters dealing with those crimes. § 174. Effect of being engaged in unlawful act. As was explained in a former section, there are many cases in which a person may be held criminally responsible for results not intended by him, because of the fact that he was engaged in the commission of an unlawful act.18 In such a case his ignorance or mistake of fact is no defense. Thus, a man may be guilty of murder if he unintentionally kills another while engaged in the commission of some other felony.19 And a man is guilty of manslaughter if he assaults another and unintentionally causes his death.20 A man who maliciously shoots at a person and kills him is guilty of murdering that person, though he may have intended to kill some other person.21 And a person who shoots or strikes another may be guilty of an assault,22 or even an assault with intent to kill or murder,23 though he may have mistaken the person assaulted for some one else. Similarly it is no defense to a prosecution for rape or having carnal knowledge of a girl under the age of consent, based on intercourse had with her consent, that the accused reasonably believed her to be over the age of consent.24 And the same principle applies in prosecutions for abducting girls under a specified age,25 and for adultery, where the intercourse is known to be illicit.26 This rule has been held not to apply where the act done is a mere civil wrong.27 And some courts have held that it does not tion into Alabama a package not labeled in the manner in which the statute requires packages containing liquor for shipment into the state to be labeled, may rely upon the absence of such a label as negativing the presence therein of forbidden liquors or liquors in receptacles of forbidden capacities, provided it is not otherwise advised of the contents of the package, or of circumstances reasonably calculated to arouse suspicion or inquiry with respect to the same. State v. Southern Exp. Co., 200 Ala. 31, 75 So. 343. It is not a defense to prosecutions for selling liquor to Indians. State v. Nicolls, 61 Wash. 142, 112 Pac. 269, Ann. Cas. 1912 B 1088. And the sel ler's belief that the purchaser was not 18 See § 348, infra. 27 See § 171, supra, and § 623, infra. apply where the act is merely malum prohibitum, and not otherwise wrong, although there is also authority to the contrary.28 § 175. Negligence. Ignorance of fact is no defense, as a general rule, if the accused could have known the facts if he had exercised reasonable care and diligence.29 So, for example, ignorance or mistake of fact due to negligence is no defense to a prosecution for homicide,30 or bigamy,31 or illegal voting, 32 or for selling liquor to minors or drunkards,33 or for transporting liquor into prohibition territory.34 Nor will the use of the word "knowingly" in a statute prohibiting certain acts necessarily excuse a person from obtaining information open to him.35 28 See § 83, supra, and §§ 399, 621, infra. 29 Alabama. Dotson v. State, 62 Ala. 141, 34 Am. Rep. 2; Gordon v. State, 52 Ala. 308, 23 Ann. Rep. 575. Georgia. Stern v. State, 53 Ga. 229, 21 Ann. Rep. 266. Indiana. Mulreed v. State, 107 Ind. 62, 7 N. E. 884; Swigart v. State, 99 Ind. 111. Kentucky. Goodman v. Com. 169 Ky. 542, 184 S. W. 876. Michigan. People V. Rice, 161 Mich. 657, 126 N. W. 981. Ohio, Crabtree v. State, 30 Ohio St. 382. Texas. Mealer v. State, 66 Tex. Cr. 140, 145 S. W. 353; Patrick v. State, 45 Tex. Cr. 587, 78 S. W. 947. West Virginia. State v. Nichols, 67 W. Va. 659, 69 S. E. 304, 33 L. R. A. (N. S.) 419, 21 Ann. Cas. 184. Wisconsin. Welch v. State, 145 Wis. 86, 129 N. W. 656, 32 L. R. A. (N. S.) 746. And see the other cases cited in the notes following. 30 As where a person causes another's death by negligent use of a gun which he believes to be unloaded, or by the use of dangerous drugs which he does not understand. § 674, infra. See 81 See § 1130, infra. 32 Gordon v. State, 52 Ala. 308, 23 Am. Rep. 575. And see § 1216, infra. 33 Mulreed v. State, 107 Ind. 62, 7 N. E. 884; Swigart v. State, 99 Ind. 111; Goetz v. State, 41 Ind. 162; Crabtree v. State, 30 Ohio St. 382; State v. Constatine, 43 Wash. 102, 86 Pac. 384, 117 Am. St. Rep. 1043; State v. Nichols, 67 W. Va. 659, 69 S. E. 304, 33 L. R. A. (N. S.)419, 21 Ann. Cas. 184. 34 Ignorance of the fact that a statement made on a package of liquor shipped into prohibition territory that it was for the personal use of the consignee was false is no defense, where the shipper had knowledge of facts sufficient to put an ordinarily prudent person on inquiry. Goodman v. Com. 169 Ky. 542, 184 S. W. 876. 35 That a statute made it an offense to "knowingly" place a false statement on a package of liquor that it is for the personal use of the consignee, was held not to excuse the consignor from obtaining from the consignee the information that it was for his personal use, and it was further held that he must in good faith rely on such statement. Goodman v. Com. 169 Ky. 542, 184 S. W. 876. |