standing such belief." So, under a statute enacting that one who has carnal knowledge of a girl under 16 years is guilty of rape, it is not necessary to show that the accused knew, or had reason to know, that the girl was under that age.98

There remains a large class of enactments which are more than mere police regulations, and which forbid acts not in their nature immoral. The tendency of the courts is, on the whole, to construe such statutes as requiring the act to be done knowingly, and to admit ignorance or mistake of fact as an excuse." Great conflict exists, however, in the construction placed by different courts upon similar enactments; for example, in the application of the rule to crimes like bigamy and adultery. Thus, in a leading English case 1 the prisoner was convicted of bigamy under a statute enacting that "whoever, being married, shall marry any other person during the life of the former husband or wife, shall be guilty of felony," but with a proviso that nothing in the

97 State v. Ruhl, supra; State v. Houx, supra; People v. Dolan, 96 Cal. 315, 31 Pac. 107; State v. Johnson, 115 Mo. 480, 22 S. W. 463; Riley v. State (Miss.) 18 South. 117. Contra, under Texas statute, Mason v. State, 29 Tex. App. 24, 14 S. W. 71.

1

98 Com. v. Murphy, supra. If the woman is under the legal age of consent, neither her representations, nor information received from others as to her age, nor her appearance with respect to age, is a defense. People v. Marks, 146 App. Div. 11, 130 N. Y. Supp. 524; Heath v. State, 173 Ind. 296, 90 N. E. 310, 21 Ann. Cas. 1056.

› Anon., Fost. 439; Myers v. State, 1 Conn. 502 (prosecution for allowing persons to travel in hackney coach on Sunday in violation of statute excepting cases of necessity and charity); Birney v. State, 8 Ohio, 230 (under statute against harboring any black person "the property of another"; knowledge that person harbored was slave essential); Duncan v. State, 7 Humph. (Tenn.) 148; Gordon v. State, 52 Ala. 308, 23 Am. Rep. 575 (illegal voting, in belief that accused was of age and qualified).

1 Reg. v. Tolson, 23 Q. B. Div. 168. See, also, Squire v. State, 46 Ind. 459.

*

act should "extend to any person marrying a second time whose husband or wife shall have been continually absent * * for * seven years last past, and shall not have been known by such person to be living within that time." It appeared that the prisoner had remarried within seven years of the time when she last knew her husband was alive, but upon information of his death, which she believed upon reasonable grounds to be true. On appeal nine out of fifteen judges were of opinion that the conviction should be quashed, the majority holding, upon somewhat different reasoning, that the language of the statute did not exclude the application of the common-law doctrine that mere ignorance or mistake of fact is a defense. The minority based their judgment upon the plain and explicit language of the statute as conclusive evidence of the intention of the Legislature. Other courts, under similar statutes, have taken the view supported by the minority in the case just referred to." "It appears to us," said Shaw, C. J., in

2 Com. v. Mash, 7 Metc. (Mass.) 472; Com. v. Hayden, 163 Mass. 453, 40 N. E. 846, 28 L. R. A. 318, 47 Am. St. Rep. 468; State v. Zichfeld, 23 Nev. 304, 46 Pac. 802, 34 L. R. A. 784, 62 Am. St. Rep. 800. On prosecution for adultery the fact that defendant believed that the woman was not in fact married to the alleged former husband, if she was so married, was no defense. Owens v. State, 94 Ala. 97, 10 South. 669. Cf. State v. Goodenow, 65 Me. 30. But a woman marrying is not guilty if she did not know of the man's former marriage. Vaughan v. State, 83 Ala. 55, 3 South. 530. Where a man, who had married a woman whose husband was living, was indicted for adultery, and it appeared that the former husband had been absent for the full seven years covered by the exception in the statute against bigamy, it was held that, if defendant believed him dead, he was not guilty, since the statute, though not in terms applicable to adultery, recognized the common-law rule that upon a person's leaving home for temporary purposes, and not being heard of or known to be living for seven years, the presumption of death arises, and this rule should operate as a defense. Com. v. Thompson, 6 Allen (Mass.) 591, 83 Am. Dec. 653. But where it appeared on a

such a case," "that in a matter of this importance, so essential to the peace of families and the good order of society, it was not the intention of the law to make the legality of a second marriage while the former husband or wife is in fact living depend upon ignorance of such absent party's being alive, or even upon an honest belief of such person's death."

ACCIDENT OR MISFORTUNE

37. A person is not criminally liable for an accident happening in the performance of a lawful act with due

care.

The ground of this exemption from responsibility is the absence of will. The law does not punish one for his involuntary acts unless he is negligent. The accident, however, must happen in doing a lawful act. If it happen while the accused is engaged in the commission of another crime, there is no exemption. Thus, if a person, intending to kill one person, accidentally kills another, or if he accidentally kills a person in attempting to rob or commit any other felony," the fact that the killing was accidental is no excuse. So if a person accidentally kills another while engaged in mutual combat, amounting to a breach of the peace, he is guilty of manslaughter if he was voluntarily fighting, as the fighting is an unlawful act; but if he did not wish to fight, and was merely defending himself, as he

second trial that the woman's husband had not left her, but she had deserted him, the presumption did not apply, and defendant's belief in the husband's death was no defense. Com. v. Thompson, 11 Allen (Mass.) 23, 87 Am. Dec. 685.

3 Com. v. Mash, supra.

• Saunders' Case, 2 Plowd. 473; Gore's Case, 9 Coke, 81. See 4 Bl. Comm. 26, 27.

Post, p. 211.

CLARK CR.L.3D ED.-7

had a right to do, he is excused on the ground of accident." Even if the accident happen in the doing of a lawful act, the person so causing it is liable if he failed to use proper care. This ground of exemption will be more fully explained in treating of the specific crimes of assault and battery and homicide.

JUSTIFICATION

38. The law, on the ground of public policy, imposes the duty or allows the doing of certain acts, under certain circumstances although individuals are injured thereby. In such cases the acts are not criminal, but are justifiable. Such are certain acts done—

(a) Under public authority.

(b) Under parental authority. (c) In prevention of crime.

(d) In suppressing a riot.

(e) In defense of person or property.

(f) In making an arrest or preventing an escape.

In General

Questions of justification usually arise in connection with the right to inflict personal injury or to cause death. For example, homicide may be justifiable in the execution of criminals, in making arrest, in preventing the escape or rescue of a prisoner, in preventing crime, in suppressing riot or affray, in self-defense, in defense of others, or in defense of property. The infliction of bodily injury may be justified under similar circumstances, as well as under some other circumstances as in the case of correction administered by a

• Reg. v. Knock, 14 Cox, Cr. Cas. 1. And see post, pp. 193, 230, and cases cited.

7 Ante, p. 59. Post, p. 232.

parent to his child, a teacher to his pupil, and the like. Questions of justification of this nature will be considered. hereafter, particularly in treating of homicide and assault.'

SAME-DURESS

39. The concurrence of the will is in general necessary to make an act criminal. Therefore when one is forced to do an act against his will, he is, in general, not responsible therefor. Therefore, on a prosecution for any crime, except murder, if the accused committed the act only because compelled to do so by threats of death or serious bodily harm, he is excused.

If a man, without fault on his part, is made to do an act under the influence of a force which it is impossible to resist, or, rather, under the influence of such a force is made the involuntary instrument of another's act, he is, of course, not responsible. One is not guilty if a man seizes his hand, and, in spite of his resistance, compels him to kill another, for the act is the act of the man who directs his hand.10 Did the question stop here, there would be no difficulty; but the law goes farther, and excuses, in certain cases, acts which are not strictly involuntary. If a man's life is threatened or put in danger, or he is threatened with grievous. bodily harm, he may, as we shall see, defend himself. But the question here involved is whether reasonable apprehension of death or bodily harm, in case of refusal to obey the command of another to commit a crime, is an excuse for committing the crime.

It is well settled that a man is excused if he commits what would otherwise be a crime other than murder upon

Post, pp. 173, 192.

⚫ Post, p. 252.

10 East, P. C. 225.