trary.82 In support of the former view which is based largely upon a public policy, it has been said: "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 unobjectionable, in a moral view, except sc 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."83 This statement is quoted approvingly.8 84 Where one was convicted of unlawfully taking a girl under sixteen out of the possession of her parents, and the girl appeared to be over eighteen, and the defendant believed her over eighteen, the conviction was upheld.85 It is to be observed, however, that unless it is clear that the legislature intended that the act itself is to constitute a crime irrespective of any criminal intent the statute should be construed according to the principles of the common law. Reg. v. Bennett, 14 Cox Cr. C. 45; Reg. v. Woodrow, 15 M. & W. 404. 82 Mulreed v. State, 107 Ind. 62, 7 N. E. 884; People v. Welch, 71 Mich. 548, 39 N. W. 747, 1 L. R. A. 385; Adler v. State, 55 Ala. 16; Farrell v. State, 32 Ohio St. 456, 30 Am. Rep. 614; Stern v. State, 53 Ga. 229, 21 Am. Rep. 266; Marshall v. State, 49 Ala. 21; Robinius v. State, 63 Ind. 235; Reg. v. Tolson, L. R., 23 Q. B. Div. 168, Derby's Cases 133, Beale's Cases 286; Reg. v. Turner, 9 Cox Cr. C. 145; Reg. v. Horton, 11 Cox Cr. C. 670; Reg. v. Moore, 13 Cox Cr. C. 544. 83 State v. Cornish, 66 N. H. 329, 21 Atl. 180, 11 L. R. A. 191n. 84 Chief Justice Blodgett in State v. Ryan, 70 N. H. 196, 46 Atl. 49, 85 Am. St. 629. 85 Reg. v. Prince, 13 Cox Cr. C. 138, Derby's Cases 102. Many decisions, however, as heretofore stated, are in harmony with the view, last quoted above. Thus, based upon various statutes, the following propositions have been sustained. An hotel-keeper, who furnishes oleomargarine to a guest without first notifying him that the substance is not butter, is criminally liable although he acted without unlawful intent and under a mistake of fact.80 A dealer in tobacco, who has in his possession adulterated tobacco, is criminally liable, although he purchased it as genuine and had no knowledge or cause to suspect that it was not.87 A grocer who sells New Orleans molasses adulterated with glucose is criminally liable although he is ignorant of the adulteration.88 In prosecuting a milk dealer for selling adulterated milk, or milk below a certain standard, it is not necessary to prove that he had knowledge of the adulteration.89 In an indictment for selling intoxicating liquors to a minor, without the written order of his parents, guardian or family physician, it is not necessary to allege and prove that the defendant had knowledge that the purchaser was a minor.90 He is bound to know, in such a case, whether he was a minor or not.91 A person who keeps naphtha for sale under an assumed name is criminally liable irrespective of guilty knowledge.92 A grocer, who sells vinegar below the standard prescribed, is criminally liable, even if he has no knowledge that it is not within the standard prescribed.93 In an indictment charging a person with removing timber from school lands it is not necessary to allege or prove guilty 90 McCutcheon v. People, 69 Ill. 86 State v. Ryan, 70 N. H. 196, 46 Atl. 49, 85 Am. St. 629. 87 Reg. v. Woodrow, 15 M. & W. 404. 88 State v. Kelly, 54 Ohio St. 166, 43 N. E. 163. 601. 91 Farmer v. People, 77 Ill. 322. 92 Commonwealth v. Wentworth, 118 Mass. 441. 93 People v. Worden Grocer Co., 118 Mich. 604, 77 N. W. 315. See also People v. Snowberger, 113 Mich. 86, 67 Am. St. 449. knowledge or criminal intent.94 It is said by Wharton, "When a statute makes an act indictable irrespective of guilty knowledge, then ignorance of fact, no matter how sincere, is no defense."95 In an indictment charging the defendant with selling oleomargarine colored with annatto it is not essential to allege that he had knowledge that the oleomargarine sold by him was so colored.96 A carrier may be criminally liable for transporting intoxicating liquor in violation of statute, although it had no knowledge of the fact that intoxicating liquor was contained in packages carried by it.97 "The object was, not to punish acts intrinsically wrong, but to prevent acts which in their results operated unjustly upon others."98 To an indictment for bringing from another state a pauper having no settlement in the town to which the pauper it brought, it is no defense that the accused believed such settlement to exist.99 In an indictment for killing, for the purpose of sale, a calf less than four weeks old, it is not necessary to allege or prove that the defendant knew that the calf was less than four weeks old. It has been said: "It was not necessary to allege in the indictment that he knew the calf to be less than four weeks old. Under this clause, as under the laws against the sale of intoxicating liquor or adulterated milk, and many other police, health and revenue regulations, the defendant is bound to know the facts and obey the law, at his peril. Such is the general rule where acts which are not mala in se are made mala prohibita from motives of public policy, and not because of their moral turpitude or the criminal intent with which they are committed." A corporation 94 State v. Dorman, 9 S. Dak. 528, 70 N. W. 848. 951 Whart. Crim. L. (11th ed.), § 108. 96 State v. Welch, 145 Wis. 86, 129 N. W. 656, 32 L. R. A, (N. S.) 746. 97 Commonwealth v. Mixer, 207 Mass. 141, 93 N. E. 249, 31 L. R. A. (N. S.) 467n, 20 Ann. Cas. 1152, 98 Waterbury v. Newton, 50 N. J. L. 534, 14 Atl. 604. 99 State v. Cornish, 66 N. H. 329, 21 Atl. 180, 11 L. R. A. 191n. 1 Commonwealth v. Raymond, 97 Mass. 567. which has failed to file a statement required by statute before doing business, can be fined, though its officers did not know of the existence of the statute and complied with it as soon as they learned of it.2 On the other hand, many courts hold, as heretofore stated, that a bona fide mistake of fact, not due to negligence, is a defense to a statutory criminal charge, unless the statute clearly shows that the legislature intended the act to constitute a crime irrespective of guilty knowledge or criminal intent. In harmony with this view the following propositions have been sustained. Under an indictment for receiving and carrying off a slave, guilty knowledge is essential to convict since it is said, the intention to commit the crime is of the essence of the crime, and to hold a man criminally responsible for an offense as to the commission of which he was ignorant at the time would be intolerable tyranny.3 Under an indictment for selling intoxicating liquors to an habitual drunkard, or to a minor, guilty knowledge is essential to convict. And the questions of good faith and due care on the part of the accused, in seeking and obtaining information as to the habits or age of the party to whom the liquor was sold, are for the jury to determine. When one honestly and with due care seeks information, such morally innocent person should not be condemned because a fact existed which he did not and could not know. To relieve a party from the penalty provided by statute for selling intoxicating liquors to a minor, it is not enough that the seller believed in good faith from appearances that the minor was of legal age; it must also be shown that the accused exercised due care to ascertain his age. A nonresident landowner may not be held criminally 2 Jellico Coal Min. Co. v. Commonwealth, 96 Ky. 373, 29 S. W. 26, Derby's Cases 167. 3 Duncan v. State, 7 Humph. (Tenn.) 148. 4 Crabtree v. State, 30 Ohio St. 5 Bish. Stat. Crimes (3d ed.), §§ 1021, 1022; Crabtree v. State, 30 Ohio St. 382. 6 Mulreed v. State, 107 Ind. 62, 7 N. E. 884. liable because a stray thistle here and there growing on his land was overlooked and went to seed, when he had, in good faith, done all that could be reasonably expected of him to prevent it. A criminal offense consists in a violation of a public law, in the commission of which there is a union or joint operation of act and intention, or original negligence. Under an indictment for "keeping a bowling alley, which was then and there resorted to for the purpose of gaming," the defendant is not guilty in the absence of guilty knowledge or criminal intent.8 Under an indictment for selling intoxicating liquors to a minor, proof of such sale to the minor makes out a prima facie case for the people; but the defendant may overcome this prima facie case by showing that the minor's size and appearance, together with his statement that he was of age, led him honestly to believe him not a minor. So a minor who votes illegally but who relies upon statements which gave him reasonable ground for believing himself of age, and has not been lacking in diligence to ascertain the real facts, should be excused from criminal intent. 10 § 116. Mistake in bigamy and adultery.-There is also much conflict in the decisions, both in England and in this country, as to the statutory criminal liability of a person, who, under a bona fide but mistaken belief that his or her spouse is dead, or divorced, marries again. Some courts hold 7 Story v. People, 79 Ill. App. 562. 8 State v. Currier, 23 Maine 43. People v. Welch, 71 Mich. 548, 39 N. W. 747, 1 L. R. A. 385. The same court, however, in People v. Roby, 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270, holds that under an indictment for selling intoxicating liquors on Sunday the defendant may be convicted irrespective of criminal intent. In several states, including Illinois, a person may be convicted of selling intoxicating liquors to a minor irrespective of guilty knowledge or criminal intent. McCutcheon v. People, 69 Ill. 601; Farmer v. People, 77 Ill. 322. 10 Gordon v. State, 52 Ala. 308, 23 Am. Rep. 575. See also 1 Bish. New Crim. L. (8th ed.), § 307. State v. Boyett, 32 N. Car. 336; Commonwealth V. Bradford, 9 Metc. (Mass.) 268; McGuire V. State, 7 Humph. (Tenn.) 54. |