right.57 If a married woman, whose husband is living and from whom she is not divorced, is advised by a justice of the peace that she has the legal right to marry another man, owing to the fact that her husband has gone through the marriage ceremony with another woman, and she goes through the marriage ceremony with the other man, in good faith, believing the advice to be true, and cohabits with him, the advice given her by the justice of the peace is no defense to the charge of adultery; and they having intentionally committed an act itself unlawful, the criminal intent is inferred from the criminality of the act, in spite of their ignorance of the law.58 § 113. Religious belief.-The religious, belief of a person is no defense to a criminal charge. Where parents, owing to conscientious religious scruples, refuse to provide necessary medical aid for their infant children, who are in the custody of their parents, and the children die in consequence, the parents' religious belief is no defense where a statute has imposed a positive duty on parents to provide medical aid for infant children in their custody.59 If a man, having a living wife, from whom he is not divorced, marries another woman, owing to his religious belief in polygamy, such religious belief constitutes no defense.60 And again, where a 57 United States v. Anthony, Fed. Cas. No. 14459, 11 Blatch. (U. S.) 200. 58 State v. Goodenow, 65 Maine 30, Beale's Cases 309; Weston v. Commonwealth, 111 Pa. St. 251, 2 Atl. 191. Same rule applies to bigamy. Staley v. State, 89 Nebr. 101, 131 N. W. 1028, 34 L. R. A. (N. S.) 613. 59 Reg. v. Downes, 13 Cox Cr. C. 111, Derby's Cases 97. 60 Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244. "Laws are made for the government of actions, and while they can not in terfere with mere religious belief and opinions, they may with practice. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Of if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization . person violates a statute which prohibits secular labor on Sunday, his religious belief in some other day of the week as a day of rest is no defense, the Sunday law being enacted to compel cessation of labor in order that those who wish to worship God then may not be interrupted.61 § 114. Mistake of fact.-Blackstone says, "An unwarrantable act, without a vicious will is no crime at all."62 He further states that, "Ignorance or mistake is another defect of will, when a man, intending to do a lawful act, does that which is unlawful. For here, the deed and the will acting separately, there is not that conjunction between them which is necessary to form a criminal act. But this must be an ignorance or mistake of fact and not an error in point of law."63 Hale asserts that, "Where there is no will to commit an offense, there can be no transgression." It is stated by Bishop that, "A mistake of fact, neither induced nor accompanied by any fault or omission of duty, excuses the otherwise criminal act which it prompts."65 He also states that, "The wrongful intent being the essence of every crime, it necessarily follows that whenever one without fault or carelessness is misled concerning facts, and thereon acts as he would be justified in doing were they what he believes them to be, he is legally innocent."66 In some cases a mistake of fact is a defense to a criminal charge, and in others it is not. As a general rule, a bona fide and reasonable mistake of fact constitutes a complete defense. Such a mistake is said to be equivalent to a lack of of society under exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances." 61 State v. Ambs, 20 Mo. 214. 634 Bl. Comm. 27. 65 1 Bish. New Crim. L. (8th ed), § 303, par. 1. 661 Bish. New Crim. L. (8th ed.), § 303, par. 3. 67 perversion of the reasoning faculty, as exists in cases of infancy and insanity. Thus, a street-car conductor who forcibly ejects a passenger under a bona fide but mistaken belief that he has not paid his fare, is not criminally liable for assault and battery.68 And a policeman who arrests a person under a bona fide but mistaken belief upon reasonable and probable cause that he is drunk is not criminally liable for false arrest.69 Many other illustrations of the application of this principle are contained in the decisions. Where a person kills his assailant under a bona fide and reasonable belief that his act is necessary to save his life or protect him against grievous bodily harm, and he is mistaken, he is not criminally liable. To justify him, the killing need not have been done in necessary self-defense; it is sufficient if it appeared necessary to him as a reasonable man.70 "What is absolute truth. no man ordinarily knows. All act from what appears, not from what is. If persons were to delay their steps until made sure, beyond every possibility of mistake, that they were right, earthly affairs would cease to move; and stagnation, death, and universal decay would follow. All, therefore, must, and constantly do, perform what else they would not, through mistake of facts."71 In a leading English case, in which the defendant was on trial for felonious homicide, the proof showed that, believing a burglar was in his house, he thrust his sword in the dark where he thought the supposed burglar was in hiding, and killed a friend of his domestic, who had called upon the latter to assist her in performing her household duties; and it was held that the mistake of fact constituted a defense.72 67 Reg. v. Tolson, L. R., 23 Q. B. Div. 168, Derby's Cases 133, Beale's Cases 286. 68 State v. McDonald, 7 Mo. App. 510. 69 Commonwealth v. Presby, 80 Mass. (14 Gray) 65. 70 Steinmeyer v. People, 95 I11. 383. See also Schmier v. People, 23 Ill. 17; Maher v. People, 24 Ill. 241; Roach v. People, 77 I11. 25. 711 Bish. New Crim. L. (8th ed.), § 303, par. 2. 72 Levett's Case, Cro. Car. 538, 1 Hale P. C. 474, Beale's Cases 279. Where a person takes another's goods or chattels by mistake, believing they are his own or his master's, and appropriates them to his own or to his master's use, respectively, he is not guilty of larceny.73 Nor is a person guilty of larceny who takes property by the direction or with the consent of another whom he erroneously believes to be the owner.74 When a specific criminal intent is an essential element of a crime, and this intent is negatived by a mistake of fact, the latter constitutes a defense. Thus, where a person signs another's name to a note or other instrument, under a bona fide but mistaken belief that he has authority so to do, he is not guilty of forgery.75 On the other hand, there are many cases in which a mistake of fact is no defense to a criminal charge, as where a person snaps a loaded pistol at another, believing that the cartridge in it is too old to explode, and it goes off and kills. the party at whom it is aimed, he is criminally liable, since he used a dangerous and deadly weapon, in a careless and reckless manner.76 And where a person is mistaken as to the identity of another, and shoots or strikes at him with intent to murder the person he believes him to be, his mistake of fact will constitute no defense." He actually intends to kill the person at whom he shoots or strikes and his mistake of identity will not avail him. § 115. Mistake in reference to statutory crimes.-As a general rule, the effect of a mistake of fact in the case of a statutory crime is the same as it is in the case of a commonlaw crime. In every case, unless the legislature has made the act a crime, irrespective of criminal intent, a mistake of 73 Phelps v. People, 55 I11. 334, Derby's Cases 161; People v. Slayton, 123 Mich. 397, 82 N. W. 205, 81 Am. St. 211; Rex v. Hall, 3 Car. & P. 409, Beale's Cases 281. 74 State v. Matthews, 20 Mo. 55. See also Mead v. State, 25 Nebr. 444, 41 N. W. 277. 75 Kotter v. People, 150 Ill. 441, 37 N. E. 932. 76 State v. Hardie, 47 Iowa 647, 26 Am. Rep. 496. 77 McGehee v. State, 62 Miss. 772, 52 Am. Rep. 209. fact has exactly the same effect as in the case of a commonlaw crime. But, as Bishop states, "One of the common forms of blundering on this subject consists of the assumption, contrary to established rule, that a statute in mere general terms is to be interpreted as excluding exceptions; so that if it says nothing of mistake of fact, the courts can not except a case of such mistake out of its operation."78 It is to be observed, however, as stated by the same author, "All statutes are to be and constantly are interpreted with reference to the unwritten law, by the principles of which they are limited and extended, so as to preserve harmony in our juridical system and promote justice."79 A person who commits a criminal act under an insane delusion is not criminally responsible, provided the delusion is such that were it a fact it would be a defense to a sane person.80 The decisions, however, both in England and in this country, upon the question of the effect of mistake of fact in statutory crimes, are in hopeless conflict. Many of them hold that mistake of fact is no defense to a statutory criminal charge where the statute is silent upon the matter of criminal intent;81 while many others hold exactly the con 781 Bish. New Crim. L. (8th ed.), § 304. 791 Bish. New Crim. L. (8th ed.), § 304; New York Cent. etc. R. Co. v. United States, 239 Fed. 130, 152 C. C. A. 172. 80 Commonwealth v. Presby, 80 Mass. (14 Gray) 65. 81 Waterbury v. Newton, 50 N. J. L. 534, 14 Atl. 604; State v. Rogers, 95 Maine 94, 49 Atl. 564, 85 Am. St. 395; State v. Ryan, 70 N. H. 196, 46 Atl. 49, 85 Am. St. 629; State v. Kelly, 54 Ohio St. 166, 177, 43 N. E. 163; State v. Dorman, 9 S. Dak. 528, 70 N. W. 848; People v. Worden Grocer Co., 118 Mich. 604, 77 N. W. 315; Common wealth v. Raymond, 97 Mass. 567; Commonwealth v. Wentworth, 118 Mass. 441; Farmer v. People, 77 Ill. 322; McCutcheon v. People, 69 Ill. 601; Commonwealth v. Smith, 103 Mass. 444; State v. Kinkead, 57 Conn. 173, 17 Atl. 855; State v. Probasco, 62 Iowa 400, 17 N. W. 607; People v. Dolan, 96 Cal. 315, 31 Pac. 107; Knight, &c., Co. v. Miller, 172 Ind. 27, 87 N. E. 823, 18 Ann. Cas. 1146; State v. Henzell, 17 Idaho 725, 107 Pac. 67, 27 L. R. A. (N. S.) 159; State v. Gilmore, 80 Vt. 514, 68 Atl. 658, 16 L. R. A. (N. S.) 786n, 13 Ann. Cas. 321; Reg. v. Prince, 13 Cox Cr. C. 138; Reg. v. Gibbons, 12 Cox Cr. C. 237; |