ing capital punishment under a void warrant that the officer honestly believed the warrant to be valid.' With these rulings may be classed the well-known common law principle, that it is no defence to an indictment for a libel that the defendant was ignorant of the contents of the libel;2 or that his motives were scientific or philanthropic.3 As diverging from the line of these cases just stated may be mentioned a series of rulings in Ohio, Indiana, and Texas. In Ohio the precedent was set in a case rather political than juridical in its type. James G. Birney, conspicuous in the old anti-slavery agitation, was indicted, in 1837, for harboring a fugitive slave.* The statute under which the prosecution was instituted did not make either the scienter or the intent essential to the offence, though it might well be argued that as this was a statute in derogation of liberty, and as in a free State no one has a right to view another man as other than a free man, the case was exceptional, and notice of the enslaved status of the fugitive must be brought home to the defendant in order to charge him with the statutory offence. Under the pressure of this argument the Supreme Court held, that, to make out the case of the prosecution, it was essential to prove that the defendant knew that the party harbored by him was a fugitive slave. In a subsequent case this ruling was held to establish the general principle, that there can be no conviction of a criminal offence without proof of guilty knowledge, and hence of guilty intent. The same view has been taken in Indiana, Georgia, and, under local statute, in Texas.8 The function of imposing indictability on pernicious acts irrespective of intent is one which has been exercised by legislatures, not only frequently but from necessity. It may be indispensable to public safety that storing of gunpowder, or of highly inflammable 1 Infra, & 401. 2 Curtis v. Mussey, 6 Gray, 261, 1856; People v. Wilson, 64 Ill. 195, 1871. Infra, 1649. R. v. Hicklin, L. R. 3 Q. B. 360, 1878. Ex parte Bradlaugh, 3 Q. B. D. 509, 1878. Infra, ?? 1607, 1654. Birney v. State, 8 Ohio, 230, 1838. 5 Crabtree v. State, 30 Ohio St. 382, 1875; Farrell v. State, 32 Ohio St. 456, 1876. Brown v. State, 24 Ind. 113, 1865; Farbach v. State, 24 Ibid. 77, 1865; 7 Stern v. State, 53 Ga. 229, 1874. 2 oils, in exposed localities should be prohibited; and as in such cases the statutes could be easily eluded if a scienter be requisite to conviction, the policy that requires the enactment of the statute requires also that the statute should relieve the prosecution from proving a scienter. Sometimes this is done by an express clause in the statute, as where a woman concealing the death of a bastard child was, by the old statutes, "deemed" to have been concerned in killing it, and where it is provided that persons selling spirituous liquors shall be "deemed" common sellers of the same, or that delivery of such liquors shall be proof of sale,' or that persons carrying concealed weapons shall be presumed to carry them knowingly. Such provisions are constitutional as concerning matters of process, and are illustrated by statutes prescribing that a person not heard of for a specific period shall be presumed to be dead, and that debts not acknowledged within a specific period shall be presumed to be paid. If this can be done by an express clause, it can be done by implication; and if so, where the legislature imposes a specific penalty on a person doing a particular thing, irrespective of scienter, it will be the duty of the courts to enforce the prohibition.3 The question is one of policy; and this may be taken into consideration when the legislative meaning is sought. That a man should be convicted of a malicious act without proof of malice, or of a negligent act without proof of negligence, is, of course, an enormity which no legislature could be supposed to direct. But it is otherwise as to certain mischievous acts which it may be a sound policy to prohibit arbitrarily, because they imperil public safety (as, for example, the selling of intoxicating drinks and defective storing of explosive compounds), and because to require scienter to be proved would be to defeat the object of the statutes, since in many cases, and those the most dangerous of the class, it would be out of the power of the prosecution. to prove scienter beyond reasonable doubt. The legislature may properly say, "In such cases we presume scienter ; whoever deals with these dangerous agencies does so at his risk." The same reasoning applies to illicit intercourse with young girls, a case above given. The act is itself an invasion of good morals, and if indulged in brings with it its own risks. Even at common law ignorance as to aggravating facts cannot be set up as a defence, as, on a trial for burglary, is the case with ignorance that the build1 Infra, ¿ 1528. 3 See this point well considered in See Whart. on Cr. Ev. 715; Halsted v. State, 12 Vroom, 340, 1879, supra, 31. with note in 1 Crim. Law Mag. 340. ing entered was a dwelling-house. A fortiori is this the case when a statute, on grounds of public policy, makes scienter irrelevant. It is also to be observed that to declare that honest ignorance of fact is a defence would extend the same privilege, in many cases, to honest ignorance of law. Ignorance, for instance, that the State prohibits by indictment dealing with minors is morally as good a defence, in cases where the party dealt with has apparently reached majority, as is ignorance that such party is a minor. In both cases the defendant is ignorant that he is doing an illegal thing. That in the former case it is conceded that such ignorance is no defence shows that honest belief that an illegal act is legal is no necessary ground for acquittal. We cannot, therefore, lay down the rule that ignorance of inculpatory facts shall always be a defence, without extending the same immunity to ignorance of inculpatory law. And if we cannot so extend this immunity, then we must hold that ignorance does not necessarily acquit when scienter is not an essential of the offence.1 And so where the of which to have been cog § 89. Even where, as affecting intent, ignorance of fact is set up, the defence is unavailable where the defendant, by the exercise of due diligence, could have become aware of fact is one his mistake. Of course, if the defendant was ignorant the defend- of facts from a knowledge of which alone could malice ant ought be inferred, he cannot be convicted of a malicious crime. But in such case he may be convicted of negligence when his ignorance was culpable, and was productive of harm. A man who negligently mistakes a visitor for a burglar, and kills the visitor, cannot, indeed, be convicted of murder, but he can be convicted of manslaughter. And, as a general rule, if the defendant is chargeable with negligence in not acquainting himself with the true facts of the case, his ignorance is no defence.3 It is no nizant. 1 "It is certain that ignorance is, as a rule, no excuse as regards the liabilities of a quasi-criminal kind which arise under penal statutes (Carter v. McLaren, L. R. 2 Sc. & D. 125), or such as are purely civil."-Pollock on Cont., Wald's ed. 385, citing Fowler v. Hollins, L. R. 7 Q. B. 616; Hollins v. Fowler, L. R. 7 H. L. 757; Coles v. Clark, 3 Cush. 399, 1849; Courtis v. Cane, 32 Vt. 232, 1860; Hoffman v. Carew, 22 Wend. 285, 1839; Pease v. Smith, 61 N. Y. 477, 1874; Koch v. 3 See Whart. on Negligence, ? 415; Com. v. Viall, 2 Allen, 512, 1861; People v. Reed, 47 Barb. 235, 1866. In Bonker v. People, 37 Mich. 4, 1878, it was held that under a statute forbidding any person to join others in marriage, knowing he is not authorized to do so, or knowing of any legal 3 seldom be established even in the grossest cases. How many justices are likely to know the exact age of all the girls in their township approaching the age of consent? or even of all those in their immediate neighborhood, except as they rely upon reputation or family report? Had he taken the proper evidence under oath and been deceived, perhaps he would have been justified, even though he had had reason to believe the age of consent had not been reached; but where he neglects the testimony which he is required to take, and pretends to rely upon the less satisfactory. oral statements which he is not required to take, the neglect may well be imputed to illegal intent." defence, for instance, to a physician indicted for malpractice, that he was ignorant of facts with which it was his duty to become acquainted. Nor is it a defence to an engineer for negligent homicide that his negligence arose from ignorance of facts which he ought to have known.2 Nor is it a defence to an indictment for perjury that the defendant believed what he swore to be true, if he had no probable cause for so believing; nor can persons selling dangerous compounds, required by law to be subject to certain tests, set up as a defence that they were ignorant that the tests were not satisfied. It is otherwise, in cases of this class, where the party impediment to the proposed marriage, may as well be repealed; for it can actual personal knowledge is not required; but it was held that if a party so officiating neglects to take the testimony which he is required to take, and relies upon less satisfactory oral statements, such neglect will be imputed to illegal intent. "No doubt," said Cooley, C. J., "where guilty knowledge is an ingredient in the offence, the knowledge must be found; but actual, positive knowledge is not usually required. In many cases to require this would be to nullify the penal laws. The case of knowingly passing counterfeit money is an illustration; very often the guilty party has no actual knowledge of the spurious character of the paper, but he is put upon his guard by circumstances which, with felonious intent, he disregards. Another illustration is the case of receiving stolen goods knowing them to be stolen; the guilt is made out by circumstances which fall short of bringing home to the defendant actual knowledge. He buys, perhaps, 1851. of a notorious thief, under circum- 3 R. v. Muscot, 10 Mod. 192; R. v. stances of secrecy and at a nominal Schlesinger, 10 Q. B. 670, 1847; R. v. price; and the jury rightfully hold Petrie, 1 Leach, 329 (3d ed.); State v. that these circumstances apprise him that a felony must have been committed. Andrews v. People, 60 Ill. 354, 1870; Schriedly v. State, 23 Ohio St. 130, 1872. If by the statute now under construction actual personal knowledge is required, the statute 1872. That in police prosecutions the scienter need not be proved, see supra, 23 a. 1 R. v. Macleod, 12 Cox C. C. 534, 1873; Whart. on Hom. ?? 143, 153. 2 U. S. v. Taylor, 5 McLean, 242, Gates, 17 N. H. 373, 1845; Com. v. Of course, charged has used due diligence to inform himself.1 where the statute makes the scienter essential to the offence, then the scienter must be proved.2 In prosecu tions for negligence party is not required to know facts out of his specialty. § 90. In prosecutions for negligent exercise of a specialty, a person is not required to know facts outside of his profession. A person, for instance, not claiming to be skilled in medicine, and giving notice of his ignorance, cannot, if called upon to act as a medical attendant, be made responsible for his ignorance of the specialty, unless it appear that he displaced, by his rash acceptance of the post, a more competent person from undertaking its duties. And, generally, we may hold that where a person is employed, not as a specialist, but as a non-specialist, undertaking a business of which he professes to know nothing, he then can only be held liable for gross negligence, or culpa lata, consisting of ignorance of facts which every ordinary person ought to know.* 1 Hearne v. Garton, 2 E. & E. 66, 1859; U. S. v. Buck, 4 Phila. 161, 1860; 8 Am. L. Reg. 540; Duncan v. State, 7 Humph. 148, 1846; Squire v. State, 46 Ind. 459, 1874. 2 R. v. Sleep, 8 Cox C. C. 472, 1860. But see U. S. v. McKim, 3 Pitts. 155, 1869. Subtle distinctions arise in this relation which in the Roman law are noticed under the titles of Error in objecto, and Aberratio delicti. Error in objecto is where A. designs to shoot B., but by mistake shoots C., mistaking C. for B., or where A. designs to steal B.'s property, but by mistake steals C.'s property. Aberratio delicti is where A. designs to shoot B., recognizes and aims at B., but accidentally shoots C., who at the moment happens to intervene. In other words, the error may arise from a mistake of the actor, or from a deflection of his aim. Error of the former class exists when the object at which the actor aims is not that which he supposes it to be. Error of the second class exists when the means used by the actor glance from the intended object, and injure an unintended person. As to the first case, we may generally remark that when the object actually injured has the same legal consequence as the object intended, then, at common law, the fact that there was a mistake as to the victim is no defence. Infra, 109, 120. As to the Aberratio delicti more intricate questions arise which will also be hereafter considered. As a general rule we may here say that an injury designed for B., which is accidentally diverted from B. and falls on C., cannot logically be regarded as malicious so far as concerns C. Under such circumstances, A. may be indictable for a malicious attempt to injure B., and for a negligent injury of C. Infra, 110, 111, 120, 317, 318. 3 Whart. on Neg. ¿? 730-7. Whart. on Neg. ? 26-45-48, and cases cited supra, ? 89. |