believed or not, is chargeable with that criminal intent. Exceptions overruled. C. v. Mash, 7 Metc. 472, B. 304, C. 88, F. 107. Compare R. v. Tolson, § 35.

Same-Diligence.

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(Ind. Sup. Ct., 1874.) Appellant was convicted of bigamy. He testified that he settled in this state two years ago, coming from Buffalo, N. Y., where he left his wife. because she refused to come with him; that he had been informed by letters from his father and brothers in New York that his wife had obtained a divorce from him in New York; and that he had since married Ruth Summers under the belief that such information was true. He assigns error on the refusal of the court to charge the jury: "That if the jury believe, from the evidence in the case, that the defendant married the second time in the honest belief that his former wife had been divorced from him, they should find him not guilty." BUSKIRK, J. * We think the court should have charged the jury, if it had been so asked, that if they believed from the evidence that the defendant had been informed that his wife had been divorced, and that he had used due care and made due inquiry to ascertain the truth, and had, considering all the circumstances, reason to believe, and did believe, at the time of his second marriage, that his former wife had been divorced from him, they should find him not guilty. There was probably no error in refusing the instruction as asked, as it was based solely upon the belief of the defendant, and did not require that such belief should be the result of due care and careful inquiry, and that he should have reasonable grounds to entertain such belief. [Reversed on another ground.] Squire v. S., 46 Ind. 459, C. 90, F. 106, Kn. 56.

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(Mass. Sup. Judicial Ct., 1869.) Adultery After 11 Years' Absence. On indictment for adultery, defendant offered evidence that he believed the woman to be a widow, that she so believed, not having heard from her husband for 11 years, and so believing they were married; and on this evidence asked the court to instruct the jury that if they believed it they should acquit. This instruction was refused relying on C. v. Mash [above], and this was held error. C. v. Thompson, 6 Allen 591, 83 Am. Dec. 653, B. 308.

(Ala. Sup. Ct., 1875.) Infant Votes, Ignorant of Age. Indictment under act of April 22, 1873, § 40, for illegal and fraudulent voting, in that defendant was under 21 years of age. Defendant's mother and another who had known him from birth and been a member of the family for some time testified that he was of age, and that they had frequently told him he would be of age in the August before the election. The court refused to charge the jury that if defendant, relying on these statements, honestly believed he was of age when he voted he should not be convicted, though the evidence convinced the jury that he was not of age. "A wrongful

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act and a wrongful intent must concur to constitute what the law deems a crime. When an act denounced by the law is proved to have been committed, in the absence of countervailing evidence, the criminal intent is inferred from the commission of the act. The inference may be, and often is, removed by the attending circumstances, showing the absence of a criminal intent. The criminal intention being of the essence of crime, if the intent is dependent on a knowledge of particular facts, a want of such knowledge, not the result of carelessness or negligence, relieves the act of criminality. Illegal voting, when it is supposed to arise from the want of legal qualifications, is dependent on the voter's knowledge of the particular facts which make up the qualification. He is bound to exercise reasonable diligence to ascertain the facts which enter into and form these qualifications. Having exercised this diligence, if he resided near the boundary line of a county, and should be informed by those having the means of knowledge that his residence was within the county, and he, without a knowledge of the real facts, honestly acting on this information, should vote, he could not fairly be charged with illegal voting, though on a subsequent survey, or on some other evidence, it should be ascertained his residence was not within the county. The precise time when a man arrives at the age of 21 years is a fact, knowledge of which he derives necessarily from his parents, or other relatives or acquaintances having knowledge of the time of his birth. If, acting in good faith, on information fairly obtained from them under an honest belief that he had reached the age, he votes, having the other necessary qualifications, illegal voting should not be imputed to him. If he votes recklessly or carelessly, when the facts are doubtful or uncertain, his ignorance should not excuse him, if the real facts show he was not qualified." Per BRICKELL, C. J. Judgment reversed. Gordon v. S., 52 Ala. 308, 23 Am. Rep. 575, F. 43, Kn. 47.

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(Ga. Sup. Ct., 1874.) Minor in Billiards. Appellant was convicted of permitting a minor to play billiards, without the consent of his parents or guardian. The trial court acted as judge and jury; and refused to consider evidence that the accused inquired, was informed by the infant, and believed that he was of age. McCAY, J. We agree with the counsel for the plaintiff in error that the county judge did not take a proper view of the law on the trial. To make a crime, there must be the union of act and intent, or there must be criminal negligence. It is not conclusive evidence of guilt on the part of the defendant that he permitted this young man to play at his table; that the young man was, in fact, a minor, and that the parent did not consent. These facts, it is true, make a prima facie case, and, if they stood alone, the guilt of the defendant would be manifest; but evidently there was evidence of another element in the case, which, by the return of the county judge, is

shown not to have been considered by him in arriving at his conclusion. There was evidence going to show that the defendant might have been honestly mistaken as to the age of the young man. It is clear to us that if the defendant, after due diligence, thought honestly that this young man was not a minor, he is not guilty. Judgment reversed. Stern v. S., 53 Ga. 229, 21 Am. Rep. 266, F. 109, 3 L. 533, Mi. 202.

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Acc. Marshall v. S. 49 Ala. 21.

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(Iowa Sup. Ct., 1883.) Same. Appellant was convicted of permitting a minor, Clark, to remain in a billiard saloon. BECK, J. # * It is obvious that, in the absence of watchfulness and proper effort to discharge the duty imposed by the statute, if a minor remains in the saloon without the knowledge of the keeper or employe, each is liable for the penalty provided by the statute. Neither can plead ignorance of the presence of the minor. It is their duty to know of his presence. The fourth instruction holds that defendant's guilt does not depend upon his knowledge of the minority of Clark. It is complained of by defendant. To hold differently would practically defeat the enforcement of the statute. Persons engaged in a business that becomes unlawful or criminal under certain conditions, must exercise it at their peril, taking care that their acts are not unlawful. Affirmed. S. v. Probasco, 62 Iowa 400, 17 N. W. 607.

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(Mass. Sup. Judicial Ct., 1861.) Selling Intoxicating Liquor in violation of the statute, the court instructed the jury, would warrant conviction, though defendant did not know it was intoxicating. Defendant excepted. HOAR, J. The court are of opinion that the sale of intoxicating liquors in violation of the statute prohibition is not one of those cases in which it is necessary to allege or prove that the person charged with the offense knew the illegal character of his act; or in which a want of such knowledge would avail him in defense. If the defendant purposely sold the liquor, which was in fact intoxicating, he was bound at his peril to ascertain the nature of the article which he sold. Where the act is expressly prohibited, without reference to the intent or purpose, and the party committing it was under no obligation to act in the premises, unless he knew that he could do so lawfully, if he violates the law he incurs the penalty. The salutary rule that every man is conclusively presumed to know the law is sometimes productive of hardship in particular cases. And the hardship is no greater where the law imposes the duty to ascertain a fact. Exceptions over

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ruled. C. v. Boynton, 2 Allen 160, B. 306.

See also: P. v. Roby, § 42, saloon opened on Sunday by clerk S. v. Chastain, § 42, supposed employer had a license to sell; S. v. Smith, § 11, neglect to learn needs of insane wife; and R. v. Wagstaffe, § 11, neglect of medical attendance supposing prayer to be better.

(S. Dak. Sup. Ct., 1894.) Selling Liquor to a Minor. Appellant

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was indicted and convicted of selling liquor to a minor, contrary to laws 1890, c. 101, § 5. The assignments of error relate to want of knowledge as a defense. He demurred to the indictment for want of averment that he knew the person was a minor, which was overruled; and on the trial he swore that he did not know the person was a minor and believed him to be of age; and produced the affidavit of the person to whom the sale was made, given as required by law at the time of the sale, averring among other things that he was over 21 years old. The court submitted the case to the jury on the theory that ignorance was no defense. FULLER, J. The word "knowingly" being omitted from that part of the statute relating to minors, and no word of similar import being used, it is evident that good faith is unimportant, and the absence of criminal intent no excuse, when intoxicating liquor has in fact been sold to a boy under the age of 21 years. As a rule, ignorance of fact and absence of criminal intent is a competent defense to a criminal charge; but a distinction is made between acts or omissions containing the elements of moral turpitude and wrong in themselves, and such as are made criminal by statutory enactment designed to promote the welfare of society. Where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute, it seems, will not excuse its violation. The law prohibiting the sale of intoxicating liquors to a minor belongs to the class above mentioned. ** # Affirmed. S. v. Sasse, 6 S. Dak. 212, 60 N. W. 853, 55 Am. St. Rep. 834.

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Acc. McCutcheon v. P. 69 Ill. 601; Ulrich v. Com. 6 Bush (Ky.) 400; In re Carlson, 127 Pa. St. 330, 18 Atl. 8; S. v. Hartfiel, 24 Wis. 61. Contra: Faulks v. P. 39 Mich. 200.

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(Mass. Sup. Judicial Ct., 1896.) Rape-Mistake as to Age. Defendants were convicted under a statute (Pub. Acts, 1893, c. 466), providing that whoever carnally knows and abuses a female child under 16 years of age, with or without her consent, shall be punished with imprisonment for life. They excepted. KNOWLTON, J. The legislature is ordinarily the judge of the expediency of creating new crimes, and of prescribing penalties, whether light or severe for prohibited acts. We cannot say that the punishment prescribed for this offense, when the girl is nearly 16 years of age, and voluntarily participates in it, is beyond the constitutional power of the legislature to inflict. The presiding justice was asked to instruct the jury that unless the defendant knew, or had good reason to believe, that the girl was under 16 years of age, he could not be convicted. How far a mistake of fact in regard to the nature of his act may be availed of by a defendant in a criminal case is sometimes a difficult question to answer. In general it may be said that there must be a malus animus, or criminal intent. But there is a large class of cases in which, on grounds of public policy, certain acts are made punish

able without proof that the defendant understands the facts that give character to his acts. In such cases it is deemed best to require everybody, at his peril, to ascertain whether his act comes within the legislative prohibition. The defendants in the present case knew that they were violating the law. Their intended crime was fornication at the least. It is a familiar rule that, if one intentionally commits a crime, he is responsible criminally for the consequences of his act, if the offense proves to be different from that which he intended. See R. v. Prince, L. R. 2 C. C. 154, 175. Exceptions overruled. C. v. Murphy, 165 Mass. 66, 42 N. E. 504, 52 Am. St. Rep. 496, 30 L. R. A. 734.

Acc. R. v. Prince. L. R. 2 C. C. 154, reviewed in R. v. Tolson, § 35.

(N. Ham. Sup. Ct., 1900.) Oleomargarine. Indictment for furnishing oleomargarine to a guest at defendant's hotel without notifying him that it was not butter, contrary to law of 1895, c. 115, § 3. Verdict, guilty. Defendant excepts to the refusal to give his requested instruction to the jury, that they "must find that the defendant knew, or had reason to know, by the exercise of due diligence, that the substance so furnished on his hotel table was not butter." BLODGETT, C. J. The instructions requested by the defendant were properly denied. It is true that, "in the earlier history of the common law, only such acts were deemed criminal as had in them the vicious element of an unlawful intent, indicating a deviation from moral rectitude; but this quality has ceased to be essential, and now acts unquestionable in a moral view, except so far as being prohibited by law makes them so, constitute a considerable portion of the criminal code. In such statutes the act is expressly prohibited without reference to the intent or purpose of the party committing it, and is usually of the class in which the person committing it is under no obligation to act unless he knows he can do so lawfully. Under these statutes it is not a defense that the person acted honestly and in good faith, under a mistake of fact. He is bound to know the fact as well as the law, and he acts at his peril. These statutes do not make a guilty knowledge one of the ingredients of the offense." S. v. Cornish, 66 N. H. 329, 21 Atl. 180, 11 L. R. A. 191, and numerous authorities there cited. The statute in question clearly comes within this class. Exceptions overruled. S. v. Ryan, 70 N. H. 196, 46 Atl. 49, 85 Am. St. Rep. 629.

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Acc. C. Weiss, 139 Pa. 247, 21 Atl. 10, 23 Am. St. Rep. 182, Mi. 205.

§ 54.

"That the Defendant was Mistaken as to the Law."

(Eng. C. C. R., 1800.) Before Law Could be Known. Conviction of malicious shooting on board his ship "Langley" off the coast of Africa, June 27, 1799, in violation of a statute (39 Geo. 3, c. 37) approved May 10, 1799, was held proper, notwithstanding