III. IGNORANCE OR MISTAKE OF LAW § 176. In general. Every man is conclusively presumed to know the law, and on a prosecution for a crime, whether common-law or statutory, a person cannot escape responsibility by showing that he was ignorant or mistaken as to the law.36 The presumption is not a rebuttable presumption of fact, but is a conclusive presumption of law. And the rule, therefore, applies even though the accused may 361 Coke, 177; Broom, Leg. Max. 253; 1 Hale, P. C. 42. United States. Shevlin-Carpenter Co. v. State of Minnesota, 218 U. S. 57, 54 L. Ed. 930, 30 Sup. Ct. 663, 47 L. R. A. (N. S.) 84, aff'g 102 Minn. 470, 114 N. W. 738; Armour Packing Co. v. United States, 209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428, aff'g 153 Fed. 1; Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244; HamburgAmerican Steam Packet Co. v. United States, 250 Fed. 747, certiorari denied, 246 U. S. 662, 62 L. Ed. 927; 38 Sup. Ct. 333 (mem. dec.); New York Cent. & H. River R. Co. v. United States, 239 Fed. 130, aff'g 232 Fed. 179; Chadwick v. United States, 141 Fed. 225. 57. Alabama. Hoover v. State, 59 Ala. California. People v. O'Brien, 96 Cal. 171, 31 Pac. 45. Georgia. Fraser v. State, 112 Ga. 13, 37 S. E. 114; Levar v. State, 103 Ga. 42, 29 S. E. 467; Dickens v. State, 30 Ga. 383. Kentucky. Jellico Coal Min. Co. v. Com., 96 Ky. 373, 29 S. W. 26; Wayman v. Com., 14 Bush 466; Begley v. Com., 22 Ky. L. Rep. 1546, 60 S. W. 847. Louisiana. State v. Irvine, 126 La. 434, 52 So. 567. Maine. State v. Huff, 89 Me. 521, 36 Atl. 1000; State v. Goodenow, 65 Me. 30. Massachusetts. Com. v. Boynton, 2 Allen 160. Missouri. State v. Welch, 73 Mo. 284, 39 Am. Rep. 515. Montana. State v. District Court, Silver Bow County, 44 Mont. 318, 119 Pac. 1103, Ann. Cas. 1913 B. 396. New Hampshire. State v. Carver, 69 N. H. 216, 39 Atl. 973. New Jersey. Halstead v. State, 41 N. J. L. 552, 32 Am. Rep. 247. New York. People v. Bock, 69 Misc. 543, 125 N. Y. Supp. 301, aff'd 148 App. Div. 899, 132 N. Y. Supp. 1141. North Carolina. State v. Southern Ry. Co., 122 N. C. 1052, 30 S. E. 133; State v. McLean, 121 N. C. 589, 28 S. E. 140; State v. Downs, 116 N. C. 1064, 21 S. E. 689; State v. McBrayer, 98 N. C. 619, 2 S. E. 755; State v. Dickens, 1 Hay. 406; State v. Boyett, 10 Ired. 336. Pennsylvania. Weston v. Com., 111 Pa. St. 251, 2 Atl. 191. Rhode Island. State v. Foster, 22 R. I. 163, 46 Atl. 833. South Carolina. State v. Williams, 36 S. C. 493, 15 S. E. 554. Tennessee. Lancaster v. State, 3 Coldw. 340, 91 Am. Dec. 288. Texas. Thompson v. State, 26 Tex. App. 94, 9 S. W. 486; Hughes v. State, 67 Tex. Cr. 333, 149 S. W. 173; Morris v. State, 64 Tex. Cr. 498, 142 S. W. 876; Hickman v. State, 64 Tex. Cr. 161, 141 S. W. 973. England. Rex v. Esop, 7 Car. & P. 456; The Barronet's Case, 1 El. & Bl. 1; Rex v. Thurston, 1 Lev. 91; Rex v. Bailey, Russ. & R. 1. have acted in the most perfect good faith, and under advice of counsel; 37 or though it may clearly appear that he could not possibly know the law; 38 For that he was a foreigner, temporarily in the country, and that the act was permitted by the laws of his own country; or though the state may admit his ignorance of the law at the trial.40 And it also applies even where the statute requires the act to have been committed knowingly and fraudulently.41 39 § 177. Illustrations. In accordance with the rule stated in the preceding section,42 it is no defense to a prosecution for homicide that the accused believed he had a right to kill deceased to prevent seduction of his sister, 43 or that he did not know that the deceased, whom he knew was an officer, had authority to arrest him. when ignorance or mistake of law is set up as tions for illegally voting at an election,45 for gaming or keeping a And see other cases sited in the notes following. It is no excuse that he misunderstood or misconstrued the law. Levar v. State, 103 Ga. 42, 29 S. E. 467. 87 See § 179, infra. 38 See Rex v. Bailey, Russ. & R. 1, where the defendant was convicted of a crime under a statute passed after he had sailed from England, the act having been committed on the vessel before its return to England, and Rex v. Thurston, 1 Lev. 91, in which the question of murder depended on the legality of an attempted arrest, which was illegal when attempted but was subsequently made legal by act of parliament. 39 See The Barronet's Case, 1 El. & Bl. 1, where a Frenchman fought a duel in England, by the laws of which dueling was unlawful, though it was lawful under the French law; and Rex v. Esop, 7 Car. & P. 456, where a person from Bagdad committed an unnatural crime on a ship, at the dock in England, and was convicted, though, by the laws of his own country, it was not considered a crime. 40 Jellico Coal Min. Co. v. Com., 96 Ky. 373, 29 S. W. 26. Want of notice The same is true defense in prosecu of a municipal ordinance, other than that given the general public, is no defense to a prosecution for violating it. Sands v. Inhabitants of Trenton (N. J. L.), 57 Atl. 767. 41 State v. Boyett, 10 Ired. (N. C.) 336. 42 See § 176, supra. 43 People v. Cook, 39 Mich. 236. 44 State v. Williams, 36 S. C. 493, 15 S. E. 554. 45 United States. United States v. Anthony, 11 Blatchf. 200, Fed. Cas. No. 14,459. Iowa. See State v. Sheeley, 15 Iowa 404. New York. Hamilton v. People, 57 Barb. 625. North Carolina. State v. Boyett, 10 Ired. 336. Tennessee. McGuire v. State, 7 Humph. 54. Texas. Thompson v. State, 26 Tex. App. 94, 9 S. W. 486. The contrary was held under a statute punishing any person who should vote, "knowing himself not to be a qualified voter." Winehart v. State, 6 Ind. 30. Com. v. Bradford, 9 Metc. (Mass.) 268. gaming house or device,46 for adultery 47 or bigamy,48 for compounding a felony,49 for carrying weapons or concealed weapons, 50 for obtaining property by means of false and fraudulent representations,51 for violating the federal contract labor law,52 or the provisions of the Elkins act relative to the giving of rebates by carriers,58 or state statutes prohibiting discrimination in charges by carriers, 54 for usurping a public office,55 for charging illegal fees,56 for altering public records,57 for violating the statutes relative to intoxicating liquors,58 or for obstructing a highway.59 46 Thus, a person exhibiting and keeping a gambling device, in violation of a statute, cannot escape liabil ity on the ground that he did so in good faith, believing he had a right to do so under a license, where the license was unauthorized and void. Atkins v. State, 95 Tenn. 474, 32 S. W. 391. In a prosecution for keeping and operating a pool room for betting on horse races, in violation of a statute, it is no defense that the accused was ignorant of the law, and believed that a license issued to him by the municipal authorities authorized his illegal act. Debardelaben v. State, 99 Tenn. 649, 42 S. W. 684. It is no defense to a prosecution for conducting a raffle that the accused did not know that it was against the law. Hickman v. State, 64 Tex. Cr. 161, 141 S. W. 973. 47 See § 1050, infra. 49 State v. Carver, 69 N. H. 216, 39 Atl. 973. 50 Crain v. State, 69 Tex. Cr. 55, 153 S. W. 155; McCallister v. State, 55 Tex. Cr. 392, 116 S. W. 1154. An unconstitutional statute attempting to confer the right is no defense. Swincher v. Com., 24 Ky. L. Rep. 1897, 72 S. W. 306. That the defendant mistakenly believed that because he had been appointed deputy sheriff of a certain county he had a right to carry a pistol in another county is no defense to a prosecution for carrying it in the latter county. Ransom v. State, 73 Tex. Cr. 442, 165 S. W. 932. 51 Com. v. O'Brien, 172 Mass. 248, 52 N. E. 77. 52 New York Cent. & H. River R. Co. v. United States, 239 Fed. 130, aff'g 232 Fed. 179. 53 A mistake of law by a shipper as to the right to ship under a previous contract after a change in the rate is not a defense. Armour Packing Co. v. United States, 209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428, aff'g 153 Fed. 1. 54 State v. Southern R. Co., 122 N. C. 1052, 30 S. E. 133, 41 L. R. A. 246. 55 Usurping the office of judge of election. Wayman v. Com., 14 Bush (Ky.) 466. 56 Levar v. State, 103 Ga. 42, 29 S. E. 467; State v. District Court, Silver Bow County, 44 Mont. 318, 119 Pac. 1103, Ann. Cas. 1913 B. 396; State v. Dickens, 1 Hay (N. C.) 406. 57 People v. O'Brien, 96 Cal 171, 31 Pac. 45. 58 Selling by a physician. State v. McBrayer, 98 N. C. 619, 2 S. E. 755. Sale within two miles of a church. State v. Downs, 116 N. C. 1064, 21 S. E. 689. Opening a saloon on election day. Jones v. State, 32 Tex. Cr. 533, 25 S. W. 124. § 178. As negativing specific intent. The rule that mistake of law is no defense does not apply where a specific evil intent is an essential element of the offense charged, and proof of the mistake as to the law negatives the existence of such intent.60 Thus, on a prosecution for larceny,61 embezzlement,62 obtaining money or property under false pretenses,63 or robbery, the accused may show that he believed in good faith that he had a legal right to the property, for the purpose of negativing the existence of the necessary criminal intent, even though as a matter of law he had no such right. Likewise an officer on indictment for extortion may show that he believed he had a legal right to the fee collected.65 And on a prosecution for perjury the accused may show that there was no corrupt intent because he swore in good faith after seeking the advice of counsel.66 The same principle has been applied in prosecutions for malicious mischief, trespass, 68 "maliciously" setting fire to any furze or fern,69 neglect of official duty,70 and defrauding the revenue.71 It has also been applied by some courts in prosecutions for conspiracy." 72 But other courts hold that it is not necessary in such a prosecution to show that the conspirators had knowledge of the unlawfulness of the contemplated act, even though it is only malum prohibitum.78 67 Loaning whisky to be repaid in kind, in the mistaken belief that this was not a sale within the meaning of the law. Morris v. State, 64 Tex. Cr. 498, 142 S. W. 876. Refusing to permit the sheriff to examine express records relative to shipments of liquor. Hughes v. State, 67 Tex. Cr. 333, 149 S. W. 173. 59 That the defendant mistakenly believed that he, as a road district supervisor, had authority over the highway is no defense. Mainey, 65 Ind. 404. State V. 65 Leeman v. State, 35 Ark. 438, Cutler v. State, 36 N. J. L. 125. 66 See § 860, infra. 67 Goforth (Tenn.) 37. V. State, 8 Humph. 68 Wiggins v. State, 119 Ga. 216, 46 S. E. 86; State v. Shevlin-Carpenter Co., 102 Minn. 470, 114 N. W. 738, aff'd 218 U. S. 57, 54 L. Ed. 930, 30 Sup. Ct. 663; State v. Hause, 71 N. C. 518. And see § 965, infra. 69 Reg. v. Twose, 14 Cox C. C. 327. 70 State v. Bair (Ohio), 73 N. E. 514. 71 Reg. v. Allday, 8 Car. & P. 136. 72 People v. Powell, 63 N. Y. 88. And see People v. Flack, 125 N. Y. 324, 26 N. E. 267, 11 L. R. A. 807. 73 Hamburg-American Steam Packet Co. v. United States, 250 Fed. 747, certiorari denied, 246 U. S. 662, 62 L. Ed. 927, 38 Sup. Ct. 333 (mem. dec); The effect of the existence of a custom or usage to violate the law,74 and of advice of counsel as to what the law is,75 is considered in other sections. § 179. Advice of counsel or public officials. As a general rule advice of counsel furnishes no excuse to a person for violating the law, and cannot be relied on as a defense to a criminal prosecution,76 for to hold otherwise would be to place the advice of the attorney above the law.77 J Similarly it is no defense that the accused was erroneously advised as to the law by the public officer whose duty it is to enforce it,78 or Massachusetts. Com. v. Middleby, 187 Mass. 342, 73 N. E. 208. New Jersey. Halsted v. State, 41 N. J. L. 552, 32 Am. Rep. 247. New York. People v. Kane, 15 N. Y. Supp. 612. North Carolina. State v. Southern R. Co., 122 N. C. 1052, 30 S. E. 133, 41 L. R. A. 246; State v. McLean, 121 N. C. 589, 28 S. E. 140, 42 L. R. A. 721; State v. Downs, 116 N. C. 1064, 21 S. E. 689; State v. Dickens, 1 Hay. 406. Ohio. Myers v. State, 46 Ohio St. 473, 22 N. E. 43, 15 Am. St. Rep. 638. Pennsylvania. Weston v. Com., 111 Pa. St. 251, 2 Atl. 191. Rhode Island. State v. Hunt, 25 R. I. 75, 54 Atl. 937; State v. Foster, 22 R. I. 163, 46 Atl. 833, 50 L. R. A. 339. South Carolina. State v. Reeder, 36 S. C. 497, 15 S. E. 544. Texas. Smith v. State, 46 Tex. Cr. 267, 81 S. W. 936, 108 Am. St. Rep. 991. And see Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087. On a prosecution for the murder of a deputy sheriff who was killed while attempting to evict the defendant from certain premises under a writ of possession, it was held proper to exclude evidence of advice given the defendant by his attorney as to his right to resist eviction by force. Smith v. State, 46 Tex. Cr. 267, 81 S. W. 936, 108 Am. St. Rep. 991. On a prosecution for murder committed as a result of a dispute over the right to the possession of certain land, the defendant cannot show that he was advised by counsel that he had a right to take possession of the property, and to use firearms for the purpose of intimidation and a show of force to prevent himself from being dispossessed. Weston v. Com., 111 Pa. St. 251, 2 Atl. 191. 77 Smith v. State, 46 Tex. Cr. 267,` 81 S. W. 936, 108 Am. St. Rep. 991. 78 The fact that one is wrongly advised by the officer whose duty it is to collect a license that he does not |