judged by an external standard, does negative the criminal mind, there should be no conviction.

The requirement, that the mistake be reasonable in order to be a defense, at first sight appears the same as the rule that if the defendant be negligent his mistake will not avail. This similarity, however, is only seeming, for the test of negligence in the criminal law is not whether the defendant used the care of a reasonable man an outer standard - but whether he used the care which appeared proper to him under the circumstances, that is "Did he do his best according to his own lights?" In other words, the test is: Did the defendant act up to his own standard? 2

An examination of the authorities shows that the courts often say (not infrequently without consideration) that the mistake must be reasonable. In some cases the question is discussed and the judges distinctly lay down the same proposition. In other cases "reasonableness" is not mentioned, and an "honest mistake" is stated to be sufficient."

1 See 12 HARV. L. REV. 428.

2 Reg. v. Wagstaffe, 10 Cox C. C. 530. See Reg. v. Downes, 1 Q. B. D. 25; 12 HARV. L. REV. 428; 15 ibid. 500; 17 ibid. 347. There is a dictum in Com. v. Pierce, 138 Mass. 165, 178, to the effect that the care of a reasonable prudent man under similar circumstances should be the test in criminal as well as in civil cases.

Steinmyer v. People, 95 Ill. 383; Rineman v. State, 24 Ind. 80; Com. v. Power, 7 Met. (Mass.) 596; Com. v. Presby, 14 Gray (Mass.) 65; People v. Welch, 71 Mich. 548.

4 Gordon v. State, 52 Ala. 308; Stern v. State, 53 Ga. 229; Goetz v. State, 41 Ind. 162; Mulreed v. State, 107 Ind. 62.

5 Vaughan v. State, 83 Ala. 55; Myers v. State, I Conn. 502; Baker v. State, 17 Fla. 406; Causey v. State, 79 Ga. 564; Brown v. State, 24 Ind. 113; State v. Barrackmore, 47 Ia. 684; Com. v. Wood, 111 Mass. 408.

In Dotson v. State, 62 Ala. 141, the court says the mistake must be "without fault or carelessness." This seems to be the proper view.

The question whether a mistake of fact must be reasonable is important when selfdefense is set up as an excuse. In such a case the defendant seeks to escape liability, not because some element of guilt is lacking, but because he claims an excuse. It is held that a defendant may avail himself of this defense when he acted under a mistaken apprehension of serious bodily harm.

Here it may be held that the mistake must be reasonable; for the defendant does not offer the mistake as negativing the criminal mind; but admitting this maintains that the state, because of circumstances, should not punish him. Since he asks to be forgiven when admittedly he had a criminal mind, it may not be improper to hold him to an external standard.

Bishop, however, claims that the test of the mistake in such cases should be "without fault or carelessness," rather than "reasonable." New Crim. Law, § 305. 2.

The Supreme Court of Tennessee in Grainger v. State, 5 Yerg. (Tenn.) 459, held that if a man through cowardice, without reasonable grounds, believes himself in danger of serious bodily injury he may kill. The doctrine of this case is expressly repudiated in

Where the defendant claims to escape criminal liability because he acted under a mistake of fact, there seems to arise, according to some judges, a question as to the burden of proof: whether it is upon the defendant to establish the mistake, or upon the prosecution to disprove the mistake, after it has been set up by the defendant. Although it is not necessary for the prosecution to aver the general criminal intent in the indictment,1 yet, since the defendant's culpability depends upon such intent, its existence is an essential part of the prosecution's case, and must be proved when questioned by the defendant. Since the prosecution must prove beyond a reasonable doubt all the elements of the defendant's guilt,2 there can be no conviction, when the defendant succeeds in creating a reasonable doubt. Hence, when the defendant has produced enough evidence of mistake to cast a reasonable doubt upon the existence of the criminal mind, the prosecution should not succeed unless it removes this doubt by disproving the mistake, or by showing that the mistake, under the circumstances of the case, did not negative the criminal mind. The burden to prove the defendant's guilt, which is upon the prosecution at the start, does not shift.4

Some courts have held, however, that the defendant has the burden of proving that he was mistaken.5

Shorter v. People, 2 Comst. (N. Y.) 193, and most cases hold that the defendant may excusably kill only when his mistaken apprehension is reasonable.

1 Com. v. Hersey, 2 Allen (Mass.) 173; Beale, Crim. Pl. & Prac. § 135; Bishop, Crim. Proced., §§ 278-281.

2 Starkie, Ev., 865; Beale, Crim. Pl. & Prac., § 292; 1 Bishop, Crim. Proced., § 818; Castle v. State, 75 Ind. 146.

8 Beale, Crim. Pl. & Prac., § 289; Thayer, Prel. Treat. Ev., 362, 363; Shaw, J., in Com. v. Webster, 5 Cush. 295, 320.

4 Com. v. Kimball, 41 Mass. 366; U. S. v. Gooding, 25 U. S. 460; Dubrose v. State, 10 Tex. App. 230.

When the defendant sets up alibi as defense, he denies one of the essentials of guilt, viz., that he was present at the fact. In such a case the defendant need not prove his absence, but the prosecution must prove his presence. Beale, Crim. Pl. & Prac., § 289; Wigmore, Ev., § 2512, and note containing collection of authorities.

Such defenses as mistake and alibi, each of which denies one of the elements of guilt, must not in this connection be confounded with defenses of an affirmative character under which the defendant admits the commission of the crime but claims exemption from punishment because of some excusing fact, such as self-defense. In such cases, though the evidence would be admissible under the general plea of not guilty, nevertheless, the defense in its essence is by way of confession and avoidance, and the defendant may properly be required to establish such defense. Beale, Crim. Pl. & Prac., § 291. The courts disagree as to the extent of the defendant's burden. See Wigmore, Ev., § 2512, n.

5 Marshall v. State, 49 Ala. 21; Bain v. State, 61 Ala. 75; Goetz v. State, 41 Ind.

A ground of defense that may appropriately be considered under the present title is "insane delusion." This may be defined as an unreasoning belief in non-existent facts, which belief is persistent and ineradicable, continuing notwithstanding evidence of the senses to the contrary.1

In M'Naghten's Case 2 the fourth question put by the House of Lords to the judges was: "If a person under an insane delusion as to existing facts commits an offense in consequence thereof, is he thereby excused?" To which the judges replied: "Making the assumption that he labors under such partial delusions only and is not in other respects insane, we think he must be considered in the same situation as to responsibility, as if the facts with respect to which the delusion exists were real." This lays down the same test for insane delusion as for ordinary mistake of fact. This is a satisfactory test in cases where if the delusion were true the act done would be no crime. The criminal mind is as much negatived where the impressions are pure fictions of a disordered brain as where the impressions differ but partly from the facts as they really exist. The decisions are in accord with this view.3

There is, however, reason for questioning whether the converse of the above should hold; that is, whether the defendant should necessarily be punished when the act done would be criminal if the facts were as they appeared in the delusion to be. For example, take the case of a defendant who believed that another man had stolen his watch, and, acting under this delusion, killed the man. By the test of the judges there would be no defense in such a case, and this would be correct under the assumption made by the judges. The correctness of the test, therefore, depends upon the validity of the assumption that a man may act under an insane delusion and be perfectly sane in all other respects. Writers on medical jurisprudence strenuously deny that a man suffering from an insane delusion can be sane in all other particulars. Accord

162; Squire v. State, 46 Ind. 459. On the strength of these four cases Bishop states the rule to be that "the burden of proof is on the party setting up the mistake to show it and its innocence." New Crim. Law, § 302. 3. Further cases in accord with this view are Farbach v. State, 24 Ind. 77; State v. Brown, 16 Pac. 259 (Kan.) (semble).

1 See Mercier, Criminal Responsibility, 116, 117; Bundy v. McKnight, 48 Ind. 502, 512; In re White, 121 N. Y. 406, 413; Guiteau's Case, 10 Fed. 161, 171.

2 10 Cl. & F. 200.

8 Com. v. Rogers, 7 Met. (Mass.) 500; Guiteau's Case, 10 Fed. 161; Smith v. State, 55 Ark. 259.

"There is not, and there never has been, a person who labors under partial delusion, and is not in other respects insane." Mercier, Criminal Responsibility, 174. To

ing to this latter view the delusion, though immaterial as a mistake, is strong evidence of general derangement which may exempt the defendant from responsibility.1

From this it follows that, in considering whether the defendant shall be convicted when he did a criminal act under an insane delusion, the dual character of delusion, as mistake and as a symptom of insanity, must be carefully borne in mind. This has been overlooked by some judges and writers on the subject, and the test of mistake is applied to delusion under the assumption that the defendant is in all other respects sane.2

In order that the defendant may escape criminal liability because he acted under an insane delusion it is clear that the standard of an ordinary, reasonable man cannot be applied, because the definition of delusion indicates that the belief of the defendant is not in accord with the impression which would ordinarily be obtained from the situation by the use of the senses. A man acting under an insane delusion is not an average, reasonable man. This seems to illustrate further the contention that a mistake of fact need not necessarily be reasonable in order to be a good defense.

III. IGNORANCE AND MISTAKE OF LAW.

The courts, following literally the doctrine of ignorantia juris as proclaimed by the maxim, have refused to accept ignorance, or mistake, of law as a defense. If an element of law enter into the the same effect see 2 Stephen, Hist. Crim. Law, 157, 161; Ray, Med. Jur. of Insan., 283; article by Morton Prince, M.D., in 49 Jour. Amer. Med. Ass'n, 1643, 1645. 1 2 Stephen, Hist. Crim. Law, 161; Bishop, New Crim. Law, § 393.

2 "A man may be insane as to certain objects and on certain subjects and perfectly sane with respect to other objects and on other subjects." Clark and Marshall, Crim. Law, § 96. Also Harris, Crim. Law, 3 ed., 24; State v. Huting, 21 Mo. 464; State v. Mewherter, 46 Ia. 88, 100. In Dew v. Clark, 3 Add. Ecc. 79, Sir John Nichol said that the contention that the law of England never deems a party sane and insane at the same time upon different subjects is incorrect. This view is approved in Buswell, Insanity, § 15.

3 Ignorance of law was held no defense in these cases: Rex v. Bailey, R. & R. 1; Rex v. Esop, 7 C. & P. 456; Rex v. Crawshaw, 1 Bell C. C. 303; Barronet's Case, I E. & B. 1; Schuster v. State, 48 Ala. 199; Winehart v. State, 6 Ind. 30; Jellico Coal Min. Co. v. Com., 96 Ky. 373; Grumbine v. State, 60 Md. 355; Com. v. Everson, 140 Mass. 292; Whitton v. State, 37 Miss. 379; State v. Wilforth, 74 Mo. 528; State v. Halsted, 39 N. J. L. 402; State v. Foster, 22 R. I. 163; Walker v. State, 2 Swan (Tenn.) 287; Brig Ann, 1 Gall. (U. S.) 62; U. S. v. Fourteen Packages, Gilp. (U. S.) 235; The Joseph, 8 Cranch (U. S.) 451; Wilson v. The Brig Mary, Gilp. (U. S.) 31. See notes 2 and 3 on p. 90.

It has been suggested in several instances that ignorance of law may properly be

mistake of defendant, such mistake is held to be no defense. There is, however, an exception to this general rule. When a specific criminal intent, as distinguished from the criminal mind, is a requisite element of the offense, and such intent is negatived by ignorance or mistake, it is held that the defendant shall not be convicted, notwithstanding the maxim. Although the writer fully recognizes that the courts enforce, and commentators approve, the general doctrine that mistake of law is no defense, nevertheless, it is suggested that on principle and analogy a different result may and

ground for pardon: Rex v. Bailey, R. & R. 1; or for reducing sentence, Atkins v. State, 95 Tenn. 474.

Mistake of law was no defense in the following: Hoover v. State, 59 Ala. 57; Frasier v. State, 112 Ga. 13; Derixson v. State, 65 Ind. 385; Davis v. Com., 76 Ky. 318; State v. Whitcomb, 52 Ia. 85; Com. v. Bagley, 7 Pick. (Mass.) 279; Pisar v. State, 56 Neb. 455; Hamilton v. People, 57 Barb. (N. Y.) 625; Medrano v. State, 22 S. W. 684 (Tex.).

Ignorance or mistake of law due to the advice of a public officer is held to be no defense. Wilson v. The Brig Mary, Gilp. (U. S.) 31; The Joseph, 8 Cranch (U. S.) 451; Hoover v. State, 59 Ala. 57; Hamilton v. People, 57 Barb. (N. Y.) 625; State v. Foster, 22 R. I. 163.

1 "If A thinking he have title to the horse of B seiseth it as his own this makes it no felony but a trespass because there is a pretense of title." I Hale P. C. 508.

Larceny: Reg. v. Reed, 1 C. & M. 306; Reg. v. Wade, 11 Cox C. C. 549; Morningstar v. State, 55 Ala. 148; State v. Bond, 8 Ia. 540; Com. v. Stebbins, 8 Gray (Mass.) 492; State v. Homes, 17 Mo. 379; People v. Husband, 36 Mich. 306. Malicious trespass: Palmer v. State, 45 Ind. 388; State v. Newkirk, 49 Mo. 84; State v. Hanks, 66 N. C. 612; Com. v. Cole, 26 Pa. St. 187; Dye v. Com., 7 Grat. (Va.) 662. Maliciously setting fire to furze: Reg. v. Towse, 14 Cox C. C. 327. Malicious damage: Reg. v. Matthews, 14 Cox C. C. 5; Reg. v. Croft, 111 C. C. C. Sess. Pap. 202; Reg. v. Langford, 1 C. & M. 602; Goforth v. State, 8 Humph. (Tenn.) 37. Robbery: Rex v. Hall, 3 C. & P. 409; State v. Hollyway, 41 Ia. 200. Assault with intent to rob: Reg. v. Boden 1 C. & K. 395. Embezzlement: Reg. v. Norman, 1 C. & M. 501; Beaty v. State, 82 Ind. 228; State v. Reilly, 4 Mo. App. 392. Maliciously secreting property: Hampton v. State, 10 Lea (Tenn.) 639. Wilfully removing official seal: U. S. v. Three Railroad Cars, I Abb. U. S. 196. Perjury: Rex v. Crespigny, 1 Esp. 280; Hood v. State, 44 Ala. 81. Corruptly granting license: People v. Jones, 54 Barb. (N. Y.) 311. Feloniously taking deed from registry: Com. v. Weld, Thacher C. C. 157. Cutting, with intent to remove, timber from government lands: U. S. v. Shuler, 6 McLean (U. S.) 28. Extortion (corrupt): State v. Porter, 3 Brev. (S. C.) 175; State v. Reeves, 15 Kan. 396; Com. v. Shed, 1 Mass. 227. Knowingly rejecting vote: Com. v. Lee, 1 Brewst. (Pa.) 273. Knowingly receiving illegal vote: Byrne v. State, 12 Wis. 577; State v. McDonald, 4 Har. 555. Fraudulent voting: Com. v. Algar, Thacher C. C. 412; Com. v. Bradford, 9 Met. (Mass.) 268; State v. Macomber, 7 R. I. 349. Falsely acting as public officer: Hall v. People, 21 Mich. 456. Knowingly erasing the name of a voter: State v. Smith, 18 N. H. 91. Wilfully giving false answer at election: Reg. v. Dodsworth, 8 C. & P. 218.

Contra; Malicious shooting: Rex v. Bailey, R. & R. 1. Murder: Rex v. Thomas, East. T. 1816, MS.; Weston v. Com., 111 Pa. St. 251. Larceny: State v. Welch, 73 Mo. 284 Fraudulent voting: State v. Boyett, 10 Ired. (N. C.) 336, 343, 344.