in this respect for gross negligence, or culpa lata, which consists in not knowing what every one ought to know. But if I employ him as an expert in law, then he is negligent if he enters upon the employment without due knowledge, and consequently is chargeable not only with culpa lata, but, in addition to this, with culpa levis, or with negligence as a specialist. At the same time it is essential to remember that the knowledge required of a specialist is not perfect knowledge-for if this were exacted no specialist could escape the imputation of negligence-but such knowledge as specialists of the class in question are, under the particular circumstances, accustomed to possess.2 1 A magistrate may set up bona fide non-negligent mistake of the law to an indictment for negligence;3 though it is otherwise when such mistake is negligent.* Here it is of law ad § 85 a. Cases, also, may occur in which evil intent is a condition precedent to conviction, but in which a mistake of law, if Mistake proved, would negative such evil intent. admissible to prove such mistake of law. Thus in lar- negative ceny it is admissible to prove that the defendant took the intent. missible to evil 1 See Whart. on Neg. 26, 418, R. v. Stukely, 12 Mod. 493. Infra, 510, 520, 749; Miller v. Proctor, 201576. Ohio St. 442, 1870; and see Whart. on Cr. Ev. 724. 2 See Whart. on Neg. 52, 744-9, and Montriou v. Jeffrys, 2 C. & P. 113, 1825, where Abbott, C. J., declared that neither attorney, nor counsel, nor judge is expected to know all the law, nor to be liable for mistakes into which cautious men may fall. See, also, R. v. Mayor, etc., L. R. 3 Q. B. 629, 1878. 5 See R. v. Langford, C. & M. 602, 1842; Cutter v. State, 36 N. J. L. 125, 1875; Dye v. Com., 7 Gratt. 662, 1851; Whart. on Cont. 198; Whart. Cr. Ev. 2 724; 1 Steph. Hist. Crim. Law, 114, citing Burns v. Newell, L. R. 5 Q. B. D. 454, 1879. "The fact that an offender is ignorant of the law is in no case an excuse for his offence, but it may be relevant to the question whether an act which would be 3 R. v. Jackson, 1 T. R. 653; R. v. a crime if accompanied by a certain Fielding, 2 Burr. 719; Linford v. Fitz- intention or other state of mind, and roy, 13 Q. B. 240, 1849; People v. not otherwise, was in fact accomPowell, 63 N. Y. 88, 1875; State v. panied by that intention or state of Porter, 4 Harring. 556, 1846; State v. mind or not." Stephen's Dig. Cr. Powers, 75 N. C. 281, 1876; State v. Law, art. 33, citing Barronet's Case, 1 Gardner, 5 Nev. 377, 1869. See Com. E. & B. 1, 1852, where it was held v. Shed, 1 Mass. 227, 1806; People v. that if A., a foreigner, unacquainted Coon, 15 Wend. 277, 1836; State v. with the law of England, kills B., in a Cutter, 36 N. J. L. (7 Vroom) 125, duel in England, A.'s act is murder, 1875; Jacobs v. Com., 2 Leigh, 709, although he may have supposed it to be 1830; State v. Gardner, 2 Mo. 22, lawful. Sir J. F. Stephen adds the 1834. following illustration: A., a poacher, goods under a claim of right, however erroneous; in malicious mischief, that the act was believed to be the exercise of a legal right in assault, that he committed an assault under a mistaken conviction of his legal rights; in perjury, that the alleged perjury was under bonâ fide and intelligent advice of counsel ;* in misconduct in office, that the alleged misconduct was under advice of counsel on a debatable question of law; or under a bonâ fide non-negligent misconception of power. If, however, the ignorance is the result of negligence, then the defendant may be indicted for the negligence. And when the question does not depend exclusively on intent, it is no defence that the act charged as a crime was committed under the advice of counsel that it was lawful.7 But when the question is one of intent, such proof is admissible though it must be proved that the defendant acted on it. And so of mistakes of sub sumption of facts in law. § 85 b. When the question is whether a particular fact or group of facts falls under a particular rule of law, an error in this respect is to be regarded as an error of fact.9 $86. Publication is the mode by which the will of the sovereign, See 2 Steph. Hist. Crim. 1072 a. * Infra, 5 Infra, 1576, 1582. • State v. Gardner, 5 Nev. 377, 1869. See U. S. v. Railroad Cars, 1 Abb. U. S. 196, 1867. sets wires for game, which are taken 437, 1878. by B., a game-keeper, under the Law, 114. authority of an act of parliament (5 Anne, c. 14, s. 4), of the existence of which A. is ignorant. A. forcibly takes the wires from B., and is tried for robbery. His ignorance of the act is relevant to the question whether he took the wires under a claim of right. R. v. Hall, 3 C. & P. 409, 1828. In R. v. Reed, Car. & Mar. 398, 1841, Coleridge, J., said: "Ignorance of the law cannot excuse any person, but, at the same time, when the question is, with what intent a person takes, we cannot help looking into his state of mind, as 1875. if a person takes what he believes to be his own, it is impossible to say he is guilty of felony." On the other hand, in C.S. v. U. S. v. Anthony, 11 Blatch. 200, 1873; State v. Goodenow, 65 Me. 33, 1874; Com. v. Elwell, 2 Metc. 190, 1841; Com. v. Goodman, 97 Mass. 117, 1867; Com. v. Emmons, 98 Mass. 6, 1867; Cutter v. State, 36 N. J. L. 125, That an opinion of an attorney general is no defence, see Dodd v. State, 18 Ind. 56, 1862; nor is that of Reynolds, 98 U. S. 145, 1878, a justice of the peace. State v. GoodWaite, C. J., said: "Ignorance of a enow, 65 Me. 30, 1875; Black v. fact may sometimes be taken as a Ward, 27 Mich. 191, 1873. want of criminal intent, but not ignorance of the law." 1 Infra, 2 884-9. So as to malicious trespass, Lossen v. State, 62 Ind. 8 Long v. People, 50 Mich. 249, 1883; infra, ?? 936, 1249. 9 Whart. on Cont. & 199. Statutes as expressed through statute, is made known to the subject. The mere passage of a statute is not supposed to be a publication until a sufficient period of time has elapsed to enable the statute to be made known to the persons affected by it.' not oper ative until published. In many jurisdictions, the custom is for statutes to contain clauses specifying the time at which they shall operate; and in some States this is prescribed by constitutional limitation. As a rule, however, as is already seen, it is no defence (within the above limits) that the statute under which the trial takes place was unknown to the party indicted. In New York, it is provided that no act of the legislature shall take effect until twenty days Ignorance or mistake after it is passed, unless there be a special provision to the of fact may contrary.2 be proved to negative intent. § 87. Ignorance or mistake of fact is admissible for the purpose of negativing a particular intention. Thus if a man, supposing that he is killing a thief in his own house, kill one of his own family, he will be guilty, not of murder, 1 R. v. Bailey, R. & R. 1, where a pardon was recommended on this ground; Burns v. Nowell, L. R. 5 Q. B. D. 454, 1878; Ship Cotton Planter, 1 Paine, 23, 1831; U. S. v. 14 Packages, Gilpin, 235, 1832; though see The Ann, 1 Gall. 62, 1814, cited supra, 84; Heard v. Heard, 8 Ga. 380, 1850. 21 R. S. 244, 12; Barb. C. L. 252. 3 See Dotson v. State, 62 Ala. 141, 1879. Responsibility, according to Berner, Lehrbuch, 91, ceases when the will and the object are each present, but where they do not coalesce, and the connection between the two is prevented. Error facti et aberratio delicti. Under the latter the following cases are to be noticed: to the actor simply as what it in appearance was. He is not responsible for the unforeseen consequences. And with this accords the North German Code, 224. (b) If he acts on a false hypothesis, which, if it were correct, would justify his act, this act cannot generally be considered as a crime. For the will and the deed do not correspond. (c) If he acts on a false hypothesis, which, if correct, would lower the grade of his guilt, the act is to be regarded as correspondingly lowered as to responsibility. For instance, A. shoots B., whom he supposes to be a stranger, but who turns out to be his father; this is not parricide, but (a) Consequences which by a suit- mere homicide. So A. and B. go out able forecast could not have been fore- together to steal; but A. is ignorant seen have no causal connection with that B. is armed. A. is then responthe will of the actor. Responsibility sible only as principal in a simple, cannot attach to them. They are as distinguished from an aggravated simply casus. Thus a slight bodily larceny. To this effect are the codes injury, which in the party injured of the several German States. This produces serious results beyond the law, it will be observed, is much more range of calculation, will be imputed lenient than our own, which makes but at the most, of negligent homicide; or if, under an erroneous impression that the act is necessary in self-defence, he killed the supposed aggressor, the case is not murder, but is manslaughter or excusable homicide." So a taking by mere accident, or in a joke, or mistaking another's property for one's own, is not larceny; nor is killing a wrong animal by mistake malicious mischief; nor is a false oath taken under advice of counsel, in the belief that the statement was true, perjury; nor is it extortion for an officer to receive money honestly believed to be due. It has also been held that where an innocent merchant vessel so conducts herself as to produce the belief she is piratical, a vessel capturing her is not liable to forfeiture. A prosecution, also, cannot be sustained for resisting an officer if it appear that the defendant honestly supposed the officer to be a private person. On the other hand, we must remember that if an unforeseen consequence ensue from an act which is in itself unlawful, and in its original nature wrong or mischievous, the actor may be criminally responsible for such consequences, although against the party's wish. We may therefore conclude that when a particular intent Cox C. C. 5, 1828. State v. Matthews, 20 Mo. 55, 118, 1816; though see U. S. v. Malek Adhel, 2 How. 210, 1844; U. S. v. Packages of Linen, 1 Paine, 129, 1831, where forfeiture was held not to be dependent on the state of mind of parties implicated. 8 Infra, 649; R. v. Ricketts, 3 Camp. 68; Yates v. People, 32 N. Y. 509, 1865; Logue v. Com., 38 Pa. 265, 1861. Contra, R. v. Forbes, 10 Cox C. C. 362, 1866. See Com. v. Kirby, 2 Cush. 577, 1849; Com. v. Cooley, 6 64 N. C. 10, 1869; Johnson v. State, 1854; State v. Graham, 46 Mo. 490, a passenger from a car on the ground 1870. • State v. of non-payment, was not indictable Connor, 3 McLean, 573, for assault; and see Clow v. Wright, Cutter, 36 N. J. L. (7 Brayt. 118, 1816. 9 Infra, 120. U. S. v. Liddle, 2 Vroom) 125, 1875. Infra, & 1576. Wash. C. C. 205, 1810; U. S. v. Ortega, The Marianna Flora, 11 Wheat. 1, 4 Wash. C. C. 531, 1825; U. S. v. Ben1826. See, also, Clow v. Wright, Brayt. ner, Baldwin, 234, 1855; 4 Bl. Com. 27. is necessary to constitute the offence (e. g., in larceny, animus furandi; in murder, malice), then ignorance or mistake is evidence to cancel the presumption of intent, and to work an acquittal either total or partial. In testing this ignorance we must take as the standard the defendant's own mind. The question is, how did the facts and law, on this matter of intent, appear to him; not how do they appear to the jury or judge. But the error must be nonnegligent. If there be opportunity to dispel it, and this opportunity is not used, the delusion is no defence.2 § 88. When a statute makes an act indictable, irrespective of But when guilty knowledge, then ignorance of fact, no matter how scienter is sincere, is no defence.3 Thus, to an indictment for ignorance bigamy, it is no defence that the defendant, a woman, or mistake honestly believed (within the limit of seven years from no defence. the time he was last heard from) that her husband was irrelevant, of fact is 1 As authorities to the effect that 196; Sedg. Stat. Law, 2d ed. p. 80; R. error of fact may be proved to nega- v. Myddleton, 6 T. R. 739; R. v. Jukes, tive evil intent, see Broom's Leg. Max. 8 T. R. 536; U. S. v. Leathers, 6 Saw. 190; R. v. Thurborn, 1 Den. C. C. 387, 17, 1879; State v. Melville, 11 R. I. 1846; R. v. Forbes, 7 C. & P. 224, 417, 1877; Gardner v. People, 62 N. Y. 1835; R. v. Allday, 8 C. & P. 136, 299, 1874; Halsted v. State, 41 N. J. L. 1837; R. v. James, 8 C. & P. 131, 552, 1879; State v. Stimson, 24 N. J. 1859; R. v. Tinkler, 1 F. & F. 513, L. (4 Zab.) 478, 1853; State v. Heck, 1837; R. v. Cohen, 8 Cox C. C. 41, 23 Minn. 549, 1876; Farmer v. People, 1858; R. v. Sleep, 8 Cox C. C. 472, 77 Ill. 322, 1875; State v. King, 86 N. 1860; R. v. Wagstaffe, 10 Cox C. C. C. 603, 1882. As maintaining a view 530, 1867; R. v. Matthews, 14 Cox C. opposite to that in the text, see article C. 5, 1878; R. v. Twose, 14 Cox C. C. by Mr. Bishop, 4 South. Law Rev., N. 327, 1879; U. S. v. Pearce, 2 McLean, S. 158; and see, also, 12 Am. L. Reg. 14, 1848; Com. v. Rogers, 7 Metc. 500, 469. As to pleading of scienter in 1843; Com. v. Kirby, 2 Cush. 579, such cases, see Whart. Cr. Pl. & Pr. 1849; Marts v. State, 26 Ohio St. 162, 164. 1865; Gregory v. State, Id. 510, 1866; Steinmeyer v. People, 95 Ill. 383, 1880; Com. v. Stout, 7 B. Mon. 247, 1846; Farbach v. State, 24 Ind. 77, 1865; Stern v. State, 53 Ga. 229, 1874; Gordon v. State, 52 Ala. 308, 1875; Carter v. State, 55 Ala. 181, 1876; People v. Miles, 55 Cal. 207, 1880. That the test is the defendant's apprehension, not that of jury, or of third person, see infra, ?? 488-91. 2 See infra, & 492. Sir J. F. Stephen (Dig. Cr. Law, art. 34) states the law as follows: "An alleged offender is, in general, deemed to have acted under that state of facts which he, in good faith and on reasonable grounds, believed to exist when he did the act alleged to be an offence; provided that, when an offence is so defined by statute that the act of the offender is not a crime unless some independent fact coexists with it, the court must decide whether it was the in 3 Whart. Cr. Ev. 2 75; 1 Stark. C. P. tention of the legislature that the person |