§ 169. Necessity. "An act which would otherwise be a crime may be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil; that no more was done than was reasonably necessary for that purpose; and that the evil inflicted by it was not disproportionate to the evil avoided." 52 So it has been held that a person is not guilty of any crime in joining a rebellion, if it is necessary to save his life; 53 that a vessel is not liable for a violation of the embargo laws where during a legitimate voyage she is obliged by stress of weather to take refuge in a proscribed port; 54 that the crew of a vessel are not guilty of a crime in arising and deposing the master, if it is a case of necessity; 55 that a person cannot be punished for failure to repair or restore a highway, where all the materials with which the same might be repaired or restored have been swept away by the act of God, as by the sea, so that it is impossible for him to repair or restore it; 56 that the driver of a vehicle is not liable for stopping in the street in violation of a statute, where he is unavoidably delayed by the crowding of other vehicles; 57 and that a parent cannot be convicted of with

warned away, and killed a person in it, though he acted in obedience to the orders of his officer. And in Riggs v. State, 3 Coldw. (Tenn.) 85, 91 Am. Dec. 272, it was said by way of dictum that no order of a superior officer would justify the killing there in question, and that the parties who Idid the act were amenable to the criminal law.

In Com. v. Blodgett, 12 Metc. (Mass.) 56, it was held that members of the militia of Rhode Island who went into Massachusetts and seized and carried away certain persons as rebels against the authority of Rhode Island, were not excused from criminal liability under the laws of Massachusetts because they acted pursuant to orders of the military authorities of Rhode Island, where such action was not taken under the sovereign authority of the latter state or subsequently ratified by it, and was

not shown to be necessary to the defense of said state, or of the lives or property of its citizens.

52 Steph. Dig. Crim. Law, art. 32, citing Rex. v. Stratton, 21 How. St. Tr. 1045, wherein it was said by Lord Mansfield: "Wherever necessity forces a man to do an illegal act,forces him to do it,-it justifies him, because no man can be guilty of a crime without the will and intention of his mind." Quoted in Chesapeake & O. R. Co. v. Com., 119 Ky. 519, 84, S. W. 566.

53 See Respublica v. McCarty, 2 Dall. 86, 1 L. Ed. 300; McGrowther's Case, Fost. C. L. 13.

54 The William Gray, 1 Paine 16, Fed. Cas. No. 17,694.

55 United States v. Ashton, 2 Sumn. 13, Fed. Cas. No. 14,470.

56 Reg. v. Bamber, 5 Q. B. 279. 57 Com. v. Brooks, 99 Mass. 434.

1

drawing his child from school without the consent of the school board, where such action is necessary because of the child's ill health.58

It has also been held that a physician or druggist who furnishes intoxicating liquors as a medicine, in good faith, and in a proper case, is not guilty under a statute punishing generally the sale of intoxicating liquors.59 But a prosecution for carrying liquor to church cannot be defended on the ground that it had been prescribed for defendant's wife.60 And the sale of an adulterated article of food has been held criminal, though made pursuant to a statute requiring manufacturers and dealers to furnish samples for analysis on demand and tender of price.61

Labor on Sunday may be justifiable in a case of necessity, notwithstanding a statute prohibiting and punishing labor on that day.62 And it has been said that stealing food to satisfy present hunger is not an offense.63 The rule of necessity has also been applied to prevent the conviction of a railroad company for violating a statute requiring it to provide separate coaches for white and colored passengers, or to provide water closets at its depots.65 And it is the basis of the right of self-defense.66 But a man is not justified in taking another's life to save his own, where the necessity is not due to the other's fault.67

64

58 State v. Jackson, 71 N. H. 552, 53 Atl. 1021, 60 L. R. A. 739.

59 Nixon v. State, 76 Ind. 524; State v. Wray, 72 N. C. 253.

60 Bice v. State, 109 Ga. 117, 34 S. E. 202.

61 State v. Rippeth, 71 Ohio St.
85, 72 N. E. 298.

62 See § 1344 et seq., infra.
63 Bacon's Maxims, reg. 5.
This is no doubt true if the case is
one of actual necessity. Stealing can-
not be justified on the ground of
necessity, however, where, as is now
generally the case, relief may be ob
tained by application to the public
authorities.

64 Where, by reason of an unavoid-
able accident, the connecting train
which was accustomed to bring a
coach for colored passengers to a junc-
tion point was delayed, so that the
defendant was confronted with the

necessity of either not sending out the train in the operation of which the crime was alleged to have been committed, and thus violating the law, or of sending it out without a coach for colored passengers. Chesapeake & O. R. Co. v. Com. 119 Ky. 519, 84 S. W. 566.

65 A railroad company cannot be convicted under such a statute on the ground that the closet at a station is too far from the depot, if it could not be located nearer the depot without becoming objectionable and offensive, if not injurious to the health of persons living nearby. "No one should be required to violate one provision of the law in order to conform to the requirements of another."' Louisville & N. R. Co. v. Com., 137 Ky. 802, 127 S. W. 152.

66 See §§ 700-719, infra.
67 See § 697, infra.

§ 170. Custom and usage. If a person does an act which is prohibited and punished by the common law or statute as a crime, he cannot escape responsibility by showing that it was the custom in the particular locality to do the act.68 So a custom to take or appropriate money or property belonging to others under the circumstances involved is not a defense to a prosecution for larceny,69 or embezzlement.70 Nor is custom a defense to a prosecution for riot,71 or for committing or maintaining a common nuisance.72

II. IGNORANCE OR MISTAKE OF FACT

§ 171. General rule. Since ordinarily an act is not a crime unless there is a criminal intent,78 ignorance or mistake of fact not due to culpable negligence is generally a good defense to a prosecution for crime.74 And an honest and reasonable belief in the existence of circumstances which, if true, would make the act for which a person is

indicted an innocent one, will prevent his, conviction.75 So a man is excusable if he kills another under an erroneous but bona fide belief that he is a burglar,76 or if he kills an assailant under an erroneous but reasonable belief that it is necessary to do so to save his own life.77 And if a man takes another's property by mistake, or under a reasonable belief of ownership in himself or his master, and appropriates it to his own use, he is not guilty of larceny,78 or embezzlement.79 The same principle applies when a person passes, or has in his possession with intent to pass, forged instruments 80 or counterfeit money,81 in ignorance of their spurious character. And many other illustrations of the rule might be given.82

§ 172. Statutory offenses-In general. As the principle that a criminal intent is necessary generally applies to statutory crimes as well as to crimes at common law,88 so ignorance and mistake of fact is generally a defense in prosecutions for statutory offenses.84 But, as we have seen, the legislature in defining and denouncing a crime. dings v. State, 47 Tex. Cr. 360, 83 S. W. 694:

And see §§ 172-175, infra.

It is a defense in those cases where a specific criminal intent is an essential element of the offense. Welch v. State, 145 Wis. 86, 129 N. W. 656, 32 L. R. A. (N. S.) 746.

75 California. In re Ahart, 172 Cal. 762, 159 Pac. 160.

New York. People v. Corrigan, 195 N. Y. 1, 87 N. E. 792, rev'g. 129 App. Div. 62, 113 N. Y. Supp. 504, and aff'g. 129 App. Div. 75, 113 N. Y. Supp. 513.

Ohio. Farrell v. State, 32 Ohio St. 456, 30 Am. Rep. 614.

South Carolina. State v. Jones, 104 S. C. 141, 88 8. E. 444.

England. Reg. v. Tolson, 23 Q. B. Div. 168.

But if the facts and circumstances which the person believes to exist are not such as in law would justify his act, such belief is no defense to the act. People v. Corrigan, 195 N. Y. 1, 87 N. E. 792, rev'g 129 App. Div. 62, 113 N. Y. Supp. 504, and aff'g 129 App. Div. 75, 113 N. Y. Supp. 513.

76 See § 720, infra.
77 See § 704, infra.
78 See § 783, infra.
79 See § 548, infra.
80 See § 577, infra.
81 See § 595, infra.

82 A street car conductor who forcibly ejects a passenger under a bona fide but mistaken belief that his fare has not been paid is not criminally responsible. State v. McDonald, 7 Mo. App. 510.

And so as to a railroad employee's ejection of an intending passenger from the platform under a reasonable belief that he is there for a prohibited purpose. Com. v. Power, 7 Metc. (Mass.) 596, 41 Am. Dec. 465.

A police officer is not liable for assault and battery for arresting a man whom he believes to be drunk though he was in fact not drunk. Com. v. Presby, 14 Gray (Mass.) 65.

See also §§ 172, 173, infra, and the chapters dealing with the various specific crimes.

88 See § 83, supra.

84 Alabama. Gordon v. State, 52 Ala. 308, 23 Am. Rep. 575.

may dispense with the necessity for a criminal intent,85 and where it does so, and knowledge and intent are therefore not essential elements of the offense, then ignorance or mistake of fact is no excuse.86 Hence in statutory crimes the question is one of statutory construction, and the conflicts in the decisions on the subject are largely due to differences in the wording of the statutes creating the offenses or differences of opinion as to what the legislature intended by the words which it used.87 Ignorance or mistake of fact not due to negligence is a defense where the statute makes it an offense to do an act knowingly, 88

California. In re Ahart, 172 Cal. 762, 159 Pac. 160.

Connecticut. Myers v. State, 1 Conn. 502.

Georgia. Stern v. State, 53 Ga. 229, 21 Am. Rep. 266.

Indiana. Squire v. State, 46 Ind.

459.

North Carolina. State v. Hause, 71 N. C. 518.

Ohio. Birney v. State, 8 Ohio 230. Tennessee. Duncan V. State, 7 Humph. 148.

England. Anon., Fost. C. L. 439; Reg. v. Tolson, 23 Q. B. Div. 168.

And see § 171, supra, and § 173, infra.

85 See § 85, supra.

86 Alabama. State V. Southern Exp. Co., 200 Ala. 31, 75 So. 343.

Arkansas. Wells Fargo & Co. Express v. State, 79 Ark. 349, 96 S. W.

189.

Illinois. People v. Johnson, 288 Ill. 442, 123 N. E. 543, 4 A. L. R. 1535; People v. Fernow, 286 Ill. 627, 122 N. E. 155.

Kansas. City of Hays v. Schueler, 107 Kan. 635, 193 Pac. 311; City of Emporia v. Becker, 76 Kan. 181, 90 Pac. 798, 12 L. R. A. (N. S.) 946.

Louisiana. State v. Quinn, 131 La. 490, 59 So. 913.

Massachusetts. Com. v. Farren, 9 Allen 489; Com. v. Mash, 7 Metc. 472. Michigan. People V. Rice, 161 Mich. 657, 126 N. W. 981.

Minnesota. State v. Shevlin-Carpenter Co., 99 Minn. 158, 108 N. W. 935, 9 Ann. Cas. 634; s. c. 102 Minn. 470, 114 N. W. 738, aff'd 218 U. S. 57, 54 L. Ed. 930, 30 Sup. Ct. 663.

New York. People v. D'Antonio, 150 App. Div. 109, 134 N. Y. Supp. 657.

North Carolina. State v. Presnell, 12 Ired. 103.

Ohio. State v. Kelly, 54 Ohio St. 166, 43 N. E. 163.

Oregon. State v. Brown, 73 Ore. 325, 144 Pac. 444.

Rhode Island. State v. Smith, 10 R. I. 258.

South Dakota. State v. Dorman, 9 S. D. 528, 70 N. W. 848.

Vermont. State v. Gilmore, 80 Vt. 514, 68 Atl. 658, 16 L. R. A. (N. S.) 786, 13 Ann. Cas. 321.

Wisconsin. Welch V. State, 145 Wis. 86, 129 N. W. 656, 32 L. R. A. (N. S.) 746.

Illustrations of this rule will be found in the following section. 87 See § 86, supra.

88 Goodman v. Com., 169 Ky. 542, 184 S. W. 876; Com. v. Flannelly, 15 Gray (Mass.) 195; Williams v. State, 23 Tex. App. 70, 3 S. W. 661; Fielding v. State (Tex. Cr. App.), 52 S. W. 69. And see Smith v. State, 55 Ala. 1.

But the use of the word "knowingly" will not necessarily excuse a person from obtaining information