dead.1 And an indictment has been sustained in Massachusetts against a man for marrying a woman who believed herself to be a doing the forbidden act should do it at R. v. Turner, 9 Cox C. C. 145, 1862; his peril, or that his ignorance as to the R. v. Horton, 11 Ibid. 670, 1870; but existence of the independent fact, or his these decisions were subsequently mistaken belief, in good faith and on overruled; R. v. Gibbons, 12 Cox C. C. reasonable grounds, that it did not exist, 237, 1874. Afterward, in R. v. Moore, should excuse him; provided, also, that 13 Cox C. C. 534, 1877, Denman, J., voluntary or negligent ignorance of consulting with Amphlett, L. J., held any such fact is no excuse for any that "honest belief" might in some such offence." Of the last point he gives the following illustration: "A. abducts B., a girl under fifteen years of age, from her father's house, believing, in good faith and on reasonable grounds, that B. is eighteen years of age. A. commits the offence of abduction, although if B. had been eighteen years of age she would not have been within the statute." R. v. Prince, L. R. 2 C. C. 154; s. c. 13 Cox C. C. 138, 1877. In R. v. said by Blackburn, J.: "It seems to us that the intention of the legislature was to punish those who had connection with young girls, though with their consent, unless the girl was in fact old enough to give a valid consent. The man who has connection with a child, relying on her consent, does it at his peril, if she is below the statutory age." Prince, above cited, it was In England we have nisi prius rulings by single judges to the effect that honest belief that the husband was dead would be a defence to an indictagainst the wife for bigamy. ment cases be a defence. But in a still later case, R. v. Bennett, 14 Cox C. C. 45, 1877, where honest belief of death within the seven years was set up, Bramwell, L. J., said to the jury: "I cannot, and never do, recognize as a defence such a ruling as my brother Martin laid down in R. v. Turner. I shall, therefore, follow R. v. Gibbons, nor will I grant a case, but will ask the jury to convict the prisoner on the evidence before them." The defendant was convicted and sentenced to two years' penal servitude. In Fitzpatrick v. Kelly, L. R. 8 Q. B. 337, it is said that the mens rea may be dispensed with by statute, but that the intention so to prescribe should be clearly and strongly expressed. Sir J. F. Stephen, commenting on R. v. Gibbons, 12 Cox C. C. 237, 1874, says: 66 It seems to me that if the belief was founded on positive evidence the case would be otherwise. Suppose, e. g., a woman saw her husband fall overboard in the middle of the Atlantic, and saw a boat go out to search for him and return without him; sup doubtedly correct in a general sense; but the conclusion drawn from it in this case by no means follows. Whatever one voluntarily does he of course intends. If the statute has made it criminal to do any act under particular circumstances, the party voluntarily doing that act is chargeable with the criminal intent of doing it." widow, although eleven years had elapsed since she had last seen or heard from her husband, whom she had left,' it being held by the court that the statutory exceptions do not apply to the deserting party. It has been further held, that when a guilty party in a divorce suit marries again without leave of court (this being legally essential) during the life of the other party, and afterward obtains such leave, an honest belief that the second marriage is or has become legal has no effect in making it so, and in protecting the parties. That the defendant honestly believed in the existence of a non-existent divorce is also no defence.3 pose that she took out administration the other side it has been urged that to his estate, heard nothing of him for the maxim of the criminal law, that five years, and then married again; before a person can be convicted of a would she be guilty of bigamy if by crime there must be a 'guilty mind,' some strange chance he had escaped? applies to this case. This maxim Surely not. I am informed this view came into use in early times, when was taken by Denman, J., and Am- the criminal law was in an undefined phlett, J., in a case (R. v. Moore) tried state, for the guidance of those who 'at Lincoln Spring Assizes, 1877. I administered that law, and in those think the proviso in 24 & 25 Vict. c. times the maxim may have been of 100. s. 57 (art. 257), ought clearly to general application. A 'guilty mind' be read, not as excluding the general is a necessary element in some crimes, common law principle stated in this but those crimes have now been dearticle, but as supplementing and com- fined, and the maxim has been superpleting it, by providing that a second seded in consequence of the greater marriage, after seven years' ignorance precision in the definitions of crimes, as to the life of the first husband or and now, the question whether a wife, shall not be criminal, although guilty mind' is necessary to constithe party so marrying has no positive tute an offence turns upon the words reason to believe, and perhaps does of each particular statute. The case not believe, that the absent person is of Reg. v. Prince (ubi sup.) shows that dead." In the report of the English a guilty knowledge is not always necescommissioners of 1879, the rule in R. sary to constitute an offence; and v. Gibbons was adopted, and this was Reg. v. Bishop, L. R. 5 Q. B. D. 359, approved by Sir J. F. Stephen. See 1879, is to the same effect." The his explanation in Nineteenth Century same distinction is taken in Attorneyfor January, 1880. As to scope of Gen. v. Lockwood, 9 M. & W. 378; Texas statute in this relation, see Roberts v. Egerton, L. R. 9 Q. B. 494, Neeley v. State, 8 Tex. App. 64, 1880. 1875; and Fitzpatrick v. Kelly, L. R. In Cundy v. Le Cocq, 51 L. T. N. S. 8 Q. B. 337, 1872. And see State v. 265, 1882; 32 W. R. 721, L. R. 13 Q. Hopkins, 56 Vt. 250, 1881. B. D. 207, where it was held that ignorance that the vendee was drunk is no defence to a charge for selling to a drunkard (the statute creating the offence not containing the word "knowingly "), Stephen, J., said: "On 1 Com. v. Thompson, 6 Allen, 591, 1863; Com v. Thompson, 11 Ibid. 23, 1866. 2 Thompson v. Thompson, 114 Mass. 566, 1873. See infra, 1695. 8 State v. Goodenow, 65 Me. 30, Numerous illustrations to the same effect may be drawn from prosecutions for invasions of the laws making indictable the sale of liquors under certain conditions. It is no defence, for instance, to an indictment for keeping or selling adulterated or intoxicating liquors that the defendant did not believe them to be intoxicating or adulterated. So, on an indictment for selling adulterated milk, the defendant is not protected by ignorance of the adulteration, or even by belief that the milk was pure." And the same rule applies to indictments for selling other deleterious drinks.3 In several States selling intoxicating liquors to minors is indictable by statute, and in such cases, also, arises the question, whether the defendant knew that the vendee was a minor. Here, again, we have the rule before us applied, it having been repeatedly held that in cases in which knowledge is not part of the statutory offence, ignorance in this respect, coupled even with an honest belief that the vendee was of full age, is no defence; and the same rule applies to all cases of dealing illegally with minors.5 It is also no defence to an indictment for selling to persons of 1875; Hood v. State, 56 Ind. 263, 1877; Davis v. Com., 13 Bush, 318, 1877. See, however, Squire v. State, 46 Ind. 458, 1874, where it was held that an honest belief by a man that his first wife had been divorced from him was a defence, when he had made diligent inquiries which sustained this view. 1 Com. v. Boynton, 2 Allen, 160, 1861; Com. v. Farren, 9 Allen, 489, 1864; Com. v. Smith, 103 Mass. 444, 1869; State v. Smith, 10 R. I. 258, 1872; People v. Zeiger, 6 Park. C. R. 355, 1861. See R. v. Woodrow, 15 M. & W. 404. Infra, 1507. Contra, Farrell v. State, 32 Ohio St. 456, 1877. 2 Com. v. Farren, 9 Allen, 489, 1864; Com. v. Waite, 11 Ibid. 264, 1866; State v. Smith, 10 R. I. 258, 1872. * Com. v. Boynton, 2 Allen, 160, 1864. See Barnes v. State, 19 Conn. 398, 1847. • Infra, 1507; U. S. v. Dodge, Deady, 186, 1866; Com. v. Goodman, 97 Mass. 117, 1871; Com. v. Emmons, 98 Ibid. 6, 1871; Com. v. Lattinville, 120 Ibid. 385, 1875; Com. v. Finnegan, 5 State v. Cain, 9 W. Va. 559, 1876. See Holmes v. State, 88 Ind. 145, 1882. intemperate habits that the defendant did not know that the vendee was of intemperate habits;1 though it is otherwise when the statute makes the offence to be selling to persons of known intemperate habits, in which case knowledge is an ingredient of the prosecutor's case.2 3 Analogous cases have arisen under statutes making it indictable to abduct, seduce, or violate girls under a specific age. Here, also, it is no defence that the defendant mistook the girl's age. We have recently had a signal illustration of this application, where the rule was affirmed by the great majority of the English judges. The defendant was convicted under 24 & 25 Vict. of unlawfully taking an unmarried girl under sixteen years out of her father's possession and against his will. It was proved by the defendant that he bonâ fide believed, and had reasonable grounds for believing, that the girl at the time of the act was over sixteen. Cockburn, C. J., Kelly, C. B., Bramwell, Cleasby, and Amphlett, BB.; Blackburn, Mellon, Lush, Grove, Quain, Denman, Archibald, Field, and Lindley, JJ., held that the defence was of no avail, and that the conviction was right. The sole dissentient was Brett, J. A similar ruling is to be found in the Iowa reports, it being held in that State that knowledge that a child is under ten years is not necessary to convict a defendant of the statutory offence of assaulting a child under ten years. And it has been held in England, by the Court for Crown Cases Reserved, that the defendant's belief that the patients received were not lunatics is no defence to an indictment for receiving lunatics without license. In Missouri, also, it is no 1 State v. Heck, 23 Minn. 549, 1877; Farmer v. People, 71 Ill. 322, 1875; Humpeler v. People, 92 Ill. 400, 1880; Dudley v. Sautbine, 49 Iowa, 650, 1878. Contra, Crabtree v. State, 30 Ohio St. 382, 1875. 2 Smith v. State, 55 Ala. 1, 1876. See Crabtree v. State, 30 Ohio St. 382, 1875. R. v. Booth, 12 Cox C. C. 231, 1872; R. v. Olifier, 10 Ibid. 402, 1866; R. v. Robbins, 1 C. & K. 456, 1844; State v. Ruhl, 8 Ohio, 447, 1838; Lawrence v. Com., 30 Gratt. 845, 1878. Hence knowledge that a child was under ten years is not necessary to convict a defendant of the statutory offence of assaulting a child under ten 6 years. 4 R. v. Prince, L. R. 2 C. C. 154; s. c. 13 Cox C. C. 138, 1877. 5 State v. Newton, 44 Iowa, 45, 1876. 6 R. v. Bishop, L. R. 5 Q. B. D. 259, 1880; 14 Cox C. C. 404; 42 L. T. N. S. 240, approved by Cooley, J., in Mich. 1884, People v. Roby, 17 Rep. 626, 1884. See 2 Steph. Hist. Crim. Law, 117, where the ruling in R. v. Bishop is sustained. defence to a suit for marrying minors that the defendant believed them to be of full age. Nor will the defendant be at liberty to prove that the minor appeared of full age. "His honest mistake in this regard will not protect him. The law explicitly declares what is required for his protection, and unless he adopts the means pointed out, he must suffer the consequences."2 In other lines of prosecutions, under statutes making acts indictable irrespective of intent, similar conclusions have been reached. Thus, it is no defence to an indictment for betting at a gaminghouse that the defendant believed that the house was licensed;3 nor to an indictment for selling a calf under the statutory age, that the defendant did not know that the calf was below the limit; nor to an indictment against a public officer for illegally appropriating public money, that he believed the appropriation to be legal and right; nor to an information against a retailer of tobacco for having adulterated tobacco in his possession, that he believed it on plausible grounds to be genuine ; nor to an indictment for carrying an illegal number of passengers, that the defendant did not. know that there was an excess ; nor to an indictment for selling naphtha, that the defendant did not know that the oil was naphtha;8 nor to an indictment for illegally usurping an office, that the defendant honestly believed that he was truly elected to the office;" nor to an indictment for illegally voting, that the defendant honestly believed that he was duly qualified; 10 nor to an indictment for selling liquor on Sunday, that the sale was by a clerk without the defendant's knowledge or consent; nor to an indictment for inflict 2 State v. Griffith, 67 Mo. 287, 1878, citing Beckham v. Nacke, 56 Mo. 546, 1874. 1 Beckham . Nacke, 56 Mo. 546, see Duncan v. State, 7 Humph. 148, 1874. 1846; Com. v. Stout, 7 B. Mon. 247, 1846. In Duncan v. State, and Com. v. Stout, the indictments were under statutes prohibiting officers of vessels from transporting "colored persons" n which statutes the question of color was left open. 3 Shuster v. State, 48 Ala. 199, 1872. Com. r. Raymond, 97 Mass. 567, 1867. 5 Halsted v. State, 12 Vroom, 552, 1879. 6 * R. v. Woodrow, 15 M. & W. 404; cited and approved in U. S. v. Bayaud, 15 Rep. 200, 520; s. c. 16 Fed. Rep. 376, 1882; 21 Blatch. 287. 8 Com. v. Wentworth, 118 Mass. 441, 1875; though see Hearne v. Garten, 2 E. & E. 66, 1850. Infra, 1811. See State v. Hallett, 8 Ala. 159, 1845; McGuire v. State, 7 Humph. 54, 1846; State v. Hart, 6 Jones, (N. C.) 389, 1859. 10 Infra, & 1835. 11 People v. Roby, (Mich.) 17 Rep. 626, 1884. Infra, 247, 1503. |