94 donable. It follows that it is no defense for the accused to show that he believed in good faith that the law which he violated was unconstitutional,95 except where he has relied on the expressed decisions of the highest court in his state.96 Nor will it avail the accused that he acted in good faith under the advice of counsel,97 or that he is a foreigner, and that the act with which he is charged is not a crime in his own country.98 But where the law is not settled, or is obscure, it has been held that this rule is not applicable."" Specific intent. An exception to the general rule exists where a specific intent is essential to a crime, and ignorance of law negatives the existence of such intent,' as where a person charged with larceny or robbery believed the property to be his own.2 Mitigation of punishment. While ignorance of the law is no defense, it is a matter which may be considered in mitigation of punishment.3 N. C.-State v. McLean, 121 N. C. Tex.-Ransom v. State, 73 Tex. Cr. 412, 165 SW 932. Utah Skeen v. Craig, 31 Utah 20, 86 P 487. 94. Coates v. Wallace, 17 Serg. & R. (Pa.) 75 (where Gibson, C. J., discusses the reason for this sound rule). 95. Miles v. U. S., 103 U. S. 304, 26 L. ed. 481; Reynolds v. U. S., 98 U. S. 145, 25 L. ed. 244; U. S. v. Anthony, 24 F. Cas. No. 14,459, 11 Blatchf. 200; State v. Simmons, 143 N. C. 613, 616, 56 SE 70 [quot Cyc]. 96. State v. O'Neil, 147 Iowa 513, 126 NW 454, 33 LRANS 788, AnnCas 1912B 691. 97. U. S.-Williamson v. U. S., 207 U. S. 425, 28 SCt 163. 52 L. ed. 278; U. S. v. Anthony, 24 F. Cas. No. 14.459, 11 Blatchf. 200 (where it was held no defense that defendant had been advised by counsel that the law whose violation was alleged was unconstitutional). Ala.-Hoover v. State, 59 Ala. 57. N. Y.-Peo. v. Weed, 29 Hun 628, 1 N. Y. Cr. 349 [aff 96 N. Y. 625 mem]. N. C.-State v. Simmons, 143 N. C. 613, 616, 56 SE 701 [quot Cyc]; State v. Boyett. 32 N. C. 336. Pa.-Weston v. Com., 111 Pa. 251, 2 A 191. R. I.-State v. Hunt, 25 R. I. 69, 54 A 937; State v. Foster, 22 R. I. 163, 46 A 833. 50 LRA 339. Tex.-Smith v. State 46 Tex. Cr. 267, 81 SW 936, 108 AmSR 991; Clopton v. State, (Cr.) 44 SW 173; Medrano v. State, 32 Tex. Cr. 214, 22 SW 684, 40 AmSR 775. [a] Rule applied: (1) Where the auditor of the state relied upon the official opinion' of the attorney-general concerning the manner in which he should handle certain moneys under a new statute. Dodd v. State, 18 Ind. 56. (2) Where a judge of election expressed an unofficial opinion in regard to a certain man's right to vote under the law. State v. Hart, 51 N. C. 389. [b] On a prosecution for bigamy or adultery, it is no defense that the accused believed, on the advice of counsel, that he had the right to marry. State v. Goodenow, 65 Me. 30; Peo. V. Weed, 29 Hun 628, 1 N. Y. Cr. 349 [aff 96 N. Y. 625 mem]; Medrano v. State, 32 Tex. Cr. 214, 22 SW 684. 40 AmSR 775. See Adultery 17; Bigamy §§ 19. 20. 98. Cambioso v. Maffett, 4 F. Cas. No. 2, 330, 2 Wash. C. C. 98; Rex v. Esop, 7 C. & P. 456, 32 ECL 705; Matter of Barronet, 1 E. & B. 1, 72 ECL [§ 53] b. Of Fact (1) General Rule. Where one in ignorance or mistake as to fact commits an act which but for such mistake would be a crime, there is an absence of the malice or criminal intention which is generally an essential element of crime, and the general rule therefore is that such ignorance or mistake of fact will exempt one from criminal responsibility, provided always there is no such fault or negligence on his part as supplies the element of criminal intent. This rule applies for example where one kills another in his house, believing on reasonable grounds that he is a burglar;5 where one kills an assailant in what he reasonably believes to be necessary self-defense; where one takes another's property in the honest belief that it is his own; where stolen goods are received by one who does not know that they have been stolen;8 where one utters or has possession of forged paper or counterfeit coin in ignorance of its character;" 1, 16 Eng. L. & Eq. 361, 118 Reprint Iowa.-State V. Barrackmore, 47 99. State v. Cutter, 36 N. J. L. 125. [a] Reason for Rule.-"To give it any force in such instances, would be to turn it aside from its rational and original purpose, and to convert it into an instrument of injustice." State v. Cutter, 36 N. J. L. 125, 127. 1. U. S.-U. S. v. Connor, 25 F. Ala.-Schuster v. State, 48 Ala. 199. Mass.-Com. v. Stebbins, 8 Gray 306. N. J.-State v. Cutter, 36 N. J. L. 125. N. Y.-Peo. v. Powell, 63 N. Y. 88. Eng.-Reg. v. Reed, C. & M. 306, 41 ECL 170; Rex v. Hall, 3 C. & P. 409, 14 ECL 635. 2. See cases supra note 1; and Larceny [25 Cyc 49]; Robbery [34 Cyc 1798 text and note 13]. "Ignorance of the law cannot ex- 3. Rex v. Esop, 7 C. & P. 456, 32 Ala.-Vaughan v. State, 83 Ala. 55, Cal.-Peo. v. Devine, 95 Cal. 227, 30 P 378; Peo. v. Gonzales, 71 Cal. 569, 12 P 783. Conn. Myers V. State, 1 Conn. 502. Fla.-Pinder v. State, 27 Fla. 370, Ga. Causey v. State, 79 Ga. 564, Ill-Steinmeyer v. Peo., 95 Ill. 383; Ind. Mulreed v. State, 107 Ind. 62, 7 NE 884; Williams v. State, 48 Ind. 306; Goetz v. State, 41 Ind. 162; Brown v. State, 24 Ind. 113; Farbach v. State, 24 Ind. 77. Mich.-Peo. v. Welch, 71 Mich. 548, 39 NW 747, 1 LRA 385; Peo. V. Schultz, 71 Mich. 315, 38 NW 868; Faulks V. Peo., 39 Mich. 200, 33 AmR 374; Peo. v. Husband, 36 Mich. 306. Mo.-State v. Graham, 46 Mo. 490; Koch v. Branch, 44 Mo. 542, 100 AmD 324; State v. Homes, 17 Mo. 379, 57 AmD 269; State v. Snyder, 44 Mo. A. 429; State v. McDonald, 7 Mo. A. 510. N. Y.-Pease v. Smith, 61 N. Y. 477; Shorter v. Peo., 2 N. Y. 193, 51 AmD 286; Hoffman V. Carow, 22 Wend. 285. N. C.-State v. Hause, 71 N. C. 518; State v. Hart, 51 N. C. 389. Oh.-Marts v. State, 26 Oh. St. 162; Shriedley v. State, 23 Oh. St. 130; Birney v. State, 8 Oh. 230. Pa.-Abernethy v. Com., 101 Pa. 322. Philippine.-U. S. v. Ah Chong, 15 Philippine, 488. Tenn.-Barnards v. State, 88 Tenn. 183, 12 SW 431; Duncan v. State, 7 Humphr. 148; McGuire v. State, 7 Humphr. 54. Tex. Ivey v. State, 43 Tex. 425; Smith v. State, 42 Tex. 444; Kay v. State, 40 Tex. 29; Bray v. State, 41 Tex. 204; Smedly v. State, 30 Tex. 214; Dignowitty v. State, 17 Tex. 521, 67 AmD 670; Hickman v. State, 64 Tex. Cr. 161, 141 SW 973; Giddings v. State, 47 Tex. Cr. 360. 83 SW 694; Dismuke v. State, 20 SW 562; Lawrence State, 11 Tex. A. 306; Neely v. State, 8 Tex. A. 64. V. Utah.-Skeen v. Craig, 31 Utah 20, 32. 86 P 487 [cit Cycl. Vt.-Courtis v. Cane, 32 Vt. 232, 76 AmD 174. Va.-Brown v. Com., 86 Va. 466, 10 SE 745. W. Va.-State v. Evans, 33 W. Va. 417, 10 SE 792. Wis.-Welch v. State, 145 Wis. 86, 128 NW 656, 32 LRANS 746. Eng. Reg. v. Tolson, 23 Q. B. D. 168; Rex. v. Hall, 3 C. & P. 409, 14 ECL 635; Levet's Case, 1 Hale P. C. 474. 11 where one votes illegally under a mistake of fact;10 10. 443]. 12. Smith v. State, 55 Ala. 1; Com. v. Flannelly, 15 Gray (Mass.) 195; Field ng v. State, (Tex. Cr.) 52 SW 69; Teague v. State, 25 Tex. A. 577, 8 SW 667; Williams v. State, 23 Tex. A. 70, 3 SW 661. 13. U. S. v, Ah Chong, 15 Philippine 488, 501; Reg. v. Thurborn, 1 Den. C. C. 387. "That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or otherwise, upon which he acted." U. S. v. Ah Chong, supra. 14. See supra §§ 49, 50; and cases infra this note. [a] Illustrations.-Thus it is murder: (1) If one engaged in a robbery kills his victim. State v. Barrett, 40 Minn. 77, 41 NW 463. (2) If one intending to commit a felonious assault causes death. Wellar V. Peo., 30 Mich. 16. (3) If one feloniously sets fire to a dwellinghouse and accidentally burns an inmate. Reg. v. Serné, 16 Cox C. C. 311. (4) If one prepares poison for a certain person and another dies from it. Reg. v. Saunders, Plowd. 473, 75 Reprint 706. (5) If one intending to shoot a certain person kills a bystander. Gore's Case, 9 Cake 81a, 77 Reprint 853. (6) And one may be guilty of manslaughter if he unintentionally causes death in doing a criminal act_not amounting to a felony. State v. Benham, 23 Iowa 154, 92 AmD 416; Reg. v. Towers, 12 Cox C. C. 530. See generally Homicide [21 Cyc 716]. 15. See supra § 50; and cases infra this note. [a] Illustration. Thus a person is not the less guilty of adultery in having unlawful intercourse with a woman because he did not know she was married. Com. v. Elwell, 2 Metc. (Mass.) 190, 35 AmD 398; State v. Cody, 111 N. C. 725, 16 SE 408; Fox v. State, 3 Tex. A. 329, 30 AmŔ 144. See Adultery § 16. 16. Ala.-Dotson v. State, 62 Ala. 141. 34 AmR 2. Ind. Behler v. State, 112 Ind. 140, 13 NE 272; Swigart v. State, 99 Ind. 111. 17. P 470. the fact that the act may have been committed Garver v. Terr. 5 Okl. 342, 49 18. Ala.-Vaughan V. State, 83 Ala. 55, 3 S 530; Adler v. State, 55 Ala. 16; Gordon v. State, 52 Ala. 308, 23 AmŔ 575 (voting by a minor under a mistake as to his age); Marshall v. State, 49 Ala. 21. Conn. Myers v. State, 1 Conn. 502. Ga.-Stern v. State, 53 Ga. 229, 21 AmR 266. Ind. Mulreed v. State, 107 Ind. 62, 7 NE 884; Williams v. State, 48 Ind. 306; Squire v. State, 46 Ind. 459; Goetz v. State, 41 Ind. 162; Brown v. State, 24 Ind. 113; Farbach v. State, 24 Ind. 77. Mich.-Peo. v. Welch, 71 Mich. 548. 39 NW 747, 1 LRA 385; Faulks v. Peo. 39 Mich, 200, 33 AmR 374. Mo.-State v. Snyder, 44 Mo. A. 429. N. C.-State v. Hause, 71 N. 518. C. Oh.-Farrell v. State, 32 Oh. St. 456, 30 AmR 614; Crabtree v. State, 30 Oh. St. 382; Birney v. State, 8 Oh. 230. Tenn.-Duncan v. State, 7 Humphr. 148. Tex.-Mason v. State, 29 Tex. 24, 14 SW 71. Eng.-Reg. v. Tolson, 23 Q. B. D. 168; Reg. v. Sleep, 8 Cox C. C. 472. See also supra § 42. [a] As for example, the letting of a carriage on Sunday under the erroneous belief that it is to be used in a work of necessity or charity. Myers v. State, 1 Conn, 502. 19. See supra § 42. 20. U. S.-Feeley v. U. S., 236 Fed. 903, 150 CCA 165; U. S. v. Healy, 202 Fed. 349; U. S. v. Leathers, 26 F. Cas. No. 15,581, 6 Sawy. 17. Ala.-Owens v. State, 94 Ala. 97, 10 S 669. Ark.-Pounders v. State, 37 Ark. 399; Edgar v. State, 37 Ark. 219; Crampton v. State, 37 Ark. 108; Redmond v. State, 36 Ark. 58, 38 AmR 24. Cal.-Peo. v. Dolan, 96 Cal. 315, 31 P 107. Conn.-State v. Kinkead, 57 Conn. 173, 17 A 855; State v. Stanton, 37 Conn. 421; Barnes v. State, 19 Conn. 398. 52 AmSR 496, 30 LRA 734; Com. v. Stevens, 155 Mass. 291, 29 NE 508; Com. v. O'Kean, 152 Mass. 584, 26 NE 97; Com. v. Savery, 145 Mass. 212, 15 NE 611; Com. v. Finnegan, 124 Mass. 324; Roberge v. Burnham, 124 Mass. 277; Com. v. Lattinville, 120 Mass. 385; Com. v. Wentworth, 118 Mass. 441; Com. v. Smith, 103 Mass. 444; Com. v. Emmons, 98 Mass. 6; Com, v. Raymond, 97 Mass. 567; Com. v. Goodman, 97 Mass. 117; Com. V. Farren, 9 Allen 489; Com. v. Boynton, 2 Allen 160; Com. v. Mash, 7 Metc. 472. Mich.-Peo. v. Worden Grocer Co., 118 Mich, 604, 77 NW 315; Peo. v. Roby, 52 Mich. 577, 18 NW 365, 50 AmR 270; Bonker v. Peo., 37 Mich. 4. Minn. State v. Heck 23 Minn. 549. Miss. Riley v. State, 18 S 117; King v. State, 66 Miss. 502, 6 S 188. Mo.-State v. Johnson, 115 Mo. 480, 22 SW 463; State v. Houx, 109 Mo. 654, 19 SW 35, 32 AmSR 686; State v. Griffith, 67 Mo. 287; Beckham V. Nacke, 56 Mo. 546; State v. Bruder, 35 Mo. A. 475. Nebr. Seele v. State, 85 Nebr. 109, 122 NW 686. Nev.-State v. Zichfeld, 23 Nev. 304, 46 P 802, 62 AmSR 800, 34 LRA 784 [overr State v. Gardner, 5 Nev. 377]. N. J.-Waterbury v. Newton, 50 N. J. L. 534, 14 A 604 (sale of oleomargarine); Halsted v. State, 41 N. J. L. 552, 32 AmR 247. N. Y.-Peo. v. Kibler, 106 N. Y. 321, 12 NE 795; Gardner v. Peo. 62 N. Y. 299; Peo. v. D'Antonio, 150 App. Div. 109, 134 NYS 657; Peo. v. Jones, 54 Barb. 311; Peo. v. Eddy, 12 NYS 628; Peo. v. Nobles, 1 N. Y. Cr. 459; Peo. v. Zeiger, 6 Park. Cr. 355. N. C.-State v. Kittelle, 110 N. C. 560, 15 SE 103, 28 AmSR 698, 15 LRA 694; State v. Hause, 71 N. C. 518. Oh.-State v. Kelly, 54 Oh. St. 166, 43 NE 163; Crabtree v. State, 30 Oh. St. 382. Okl.-Garver v. Terr., 5 Okl. 342, 49 P 470. Or.-State v. Gulley, 41 Or. 318, 70 P 385. Pa. Com. v. Weiss, 139 Pa. 247, 21 A 10, 23 AmSR 182, 11 LRA 530; Com. v. Zelt, 138 Pa. 615, 21 A 7, 11 LRA 602; In re Carlson's License, 127 Pa. 330, 18 A 8; Donahue v. DoughMc-erty, 5 Rawle 124. Ill. Gordon v. Gordon, 141 Ill. 160, 30 NE 446, 33 AmSR 294, 21 LRA 387; Hampeler v. Peo., 92 Ill. 400; Farmer V. Peo., 77 Ill. 322; Cutcheon v. Peo., 69 Ill. 601; Flynn v. Galesburg, 12 Ill, A. 200. Ind.-Holmes v. State, 88 Ind. 145. Iowa.-State v. O'Neil, 147 Iowa 126 NW 454, 33 LRANS 788, Iowa.-State v. Hardie, 47 Iowa AnnCas1912B 691; State v. Thomp647, 29 AmR 496. Tex-Mealer v State, 66 Tex. Cr. 140, 145 SW 353; Hickman v. State, 64 Tex. Cr. 161, 141 SW 973. 513, son. 74 Iowa 119, 37 NW 104: State v. Probasco, 62 Iowa 400, 17 NW 607; State v. Newton, 44 Iowa 45; State v. Ruhl, 8 Iowa 447. Ky.-Ulrich v. Com., 6 Bush 400. 3 A 29; State v. Baltimore, etc., Steam Co., 13 Md. 181. [a] Applications of rule see Bigamy [5 Cyc 694]; Homicide [21 Cyc 766 text and note 84]; Intoxicating Liquors [23 Cyc 194 text and note 60. 97 NE 619, 39 LRANS 472: Com. 19; 198 text and note 48]. Mass.-Gately v. Taylor, 211 Mass. v. Murphy, 165 Mass. 66, 42 NE 504, Philippine.-U. S. v. Ah Chong, 15 Philippine 488, 500 [cit Cyc]. R. I.-State v. Foster, 22 R. I. 163. 46 A 833. 50 LRA 339; State V. Hughes, 16 R. I. 403, 16 A 911; State v. Smith, 10 R. I. 258. S. D.-State v. Dorman, 9 S. D. 528, 70 NW 848; State v. Sasse, 6 S. D. 212. 60 NW 853, 55 AmSR 834. Tex.-Simon v. State, 31 Tex. Cr. 186, 30 SW 399, 37 AmSR 802; Fox v. State. 3 Tex. A. 329, 30 AmR 144. Vt.-State v. Ackerly. 79 Vt. 69, 72, 64 A 450 [cit Cyc]; State v. Dana, 59 Vt. 614, 10 A 727; State v. Wyman, 59 Vt. 527, 8 A 900, 59 AmR 753. plied to some of the statutes punishing bigamy and adultery;21 to the selling or the keeping for sale of adulterated food products, etc.;22 to the selling, or the keeping for sale, of intoxicating liquors;23 to the selling of intoxicating liquors to minors or drunkards; to the abduction25 or the rape of a female under a specified age; to the joining in marriage of one under the age of consent; 27 and to many other cases.28 Exceptions to rule. But even to these strict rules there are necessary exceptions. If a mistake of fact is due to a mistake of law, so that it appears there is no guilty mind, punishment should not be imposed.29 So, if an act is done on solicitation by the government's instrument to that end, ignorance of fact shows the act to have been involuntary and estops the government from claiming a conviction.30 And no matter how stringently the statute may impose the duty of knowing the facts on which defendant has relied in a course of conduct that is prohibited, save under certain prescribed conditions, the common-law exceptions which relieve on account of lack of criminal intent due to infancy, insanity, coverture, or necessity are recognized.31 [55] 2. Custom or Usage. A custom or usage Va.-Lawrence v. Com., 30 Gratt. (71 Va.) 845. Wash.-State v. Nicolls, 61 Wash. 142, 144, 112 P 269, AnnCas1912B 1088 [cit Cyc]. W. Va.-State v. Pennington, 41 W. Va. 599, 23 SE 918; State v. Baer, 37 W. Va. 1, 16 SE 368; State v. Farr, 34 W. Va. 84, 11 SE 737; State v. Cain, 9 W. Va. 559. Wis.-Welch v. State, 145 Wis. 86, 129 NW 656, 32 LRANS 746; State v. Hartfiel, 24 Wis. 60. Eng.-Reg. v. Bishop, 5 Q. B. D. 259, (taking a lunatic into an unlicensed house); Rex V. Woodfall, 5 Burr. 2661, 98 Reprint 398; Reg. v. Robins, 1 C. & K. 456, 47 ECL 456; Reg. v. Gibbons, 12 Cox C. C. 237; Reg. v. Booth, 12 Cox C. C. 231; Reg. v. Mycock, 12 Cox C. C. 28; Reg. V. Woodrow, 15 M. & W. 404, 153 Reprint 907. See also supra § 42. 21. See Adultery § 16; Bigamy § 17. 22. See Adulteration § 15; Food [19 Cyc 1092 text and note 37]. 23. See Intoxicating Liquors [23 Cyc 184]. 24. See Intoxicating Liquors [23 Cyc 194 text and note 20, 198 text and note 47]. 25. See Abduction § 18. 26. See Rape [33 Cyc 1438 text and note 79]. See Marriage [26 Cyc 862 note 27. 58]. 28. See cases supra note 20; infra this note. [a] Illustrations.-(1) Allowing a minor to loiter on premises where liquor is kept for sale. State V. Kinkead, 57 Conn, 173, 17 A 855. (2) Allowing a minor to remain in a billiard saloon. State v. Probasco, 62 Iowa 400, 17 NW 607; Com. v. Emmons, 98 Mass. 6. (3) Carrying an illegal number of passengers on a steamboat. State v. Baltimore, etc., Steam Co., 13 Md. 181. (4) Disbursing, ordering, or voting for disbursements of public money in excess of appropriations, or incurring obligations in excess of appropriations. Halsted v. State, 41 N. J. L. 552, 32 AmR 247. (5) Sale of a calf under the age fixed by statute. Com. v. Raymond, 97 Mass. 567. (6) Sale of naphtha. Com. v. Wentworth, 118 Mass. 441. (7) Sale of oleomargarine. Com. v. Weiss, 139 Pa. 247, 21 A 10, 23 AmSR 182, 11 LRA 530. 29. State v. O'Neil, 147 Iowa 513, 126 NW 454, 33 LRANS 788, AnnCas 1912B 691. 30. U. S. v. Healy, 202 Fed. 349. to do that which is a crime, although known and acquiesced in by the party injured, is no defense.32 Acts clearly within the letter and spirit of a criminal statute cannot be excluded from the operation thereof because no attempt had been made previously to enforce the statute with reference to such acts.33 [56] 3. Acting under Authority or. Direction of Others.34 The general rule is that a person who is acting under the authority of a superior is guilty if his acts are illegal, even if he acts under the orders of his superior.35 This rule, however, is not without exceptions. Under some circumstances the order of a superior officer may or must be obeyed, and in such a case the act will be justifiable or excusable as done under compulsion.30 It is no Acting as agent or employee of another. defense to a criminal prosecution to prove that the accused committed the crime in the supposed discharge of his duty as agent or employee of another person, for it is well settled that the command of a master to a servant, a principal to his agent, or a parent to his child will not justify a criminal act done in pursuance thereof.37 So the officers or agents of a corporation who vio31. State v. O'Neil, 147 Iowa 513, | of the statutes, and the court said: 126 NW 454, 33 LRANS 788, AnnCas 1312B 691. 32. D. C.-Hyde v. U. S., 35 App. 451. Fla.-Hendry v. State, 39 Fla. 235, 22 S 647. Ind.-Bankus v. State, 4 Ind. 114. Ky. Clark v. Com., 111 Ky. 443, 63 SW 740, 23 KyL 1029. Mass.-Com. v. Doane, 1 Cush. 5. Mo.-State v. Welch, 73 Mo. 284, 39 AmR 515. Nebr.-Crockford v. State, 73 Nebr. 1, 102 NW 70; 1119 AmSR 876. N. Y.-Peo. v. Flechter, 44 App. Div. 199, 60 NYS 777, 14 N. Y. Cr. 328. Tex.-Lawrerce v. State, 20 Tex. Eng. Reg. v. Reed, 12 Cox C. C. 1. [a] Rule applied.—(1) Where it It "However that may be, it does not 34. Cross references: Duress or compulsion see infra § 59. Master's liability for criminal acts 35. U, S.-Mitchell v. Harmony, 13 How. 115, 14 L. ed. 75 [aff 11 F. Cas. No. 6,082, 1 Blatchf. 549]; U. S. v. Jones, 26 F. Cas. No. 15,494, 3 Wash. C. C. 209. Cal.-Peo. v. Richmond, 29 Cal. 414. 1. 159. Conn.-State v. Hull, 34 Conn. 132. Ind. Skeen v. Monkeimer, 21 Ind. R. I.-State v. Sutton, 10 R. I. Vt.-Humphrey v. Douglass, 10 Vt. 71, 33 AmD 177. W. Va.-State v. Henaghan, 73 W. Va. 706, 81 SE 539. Eng. Mostyn v. Fabrigas, 1 Cowp. 161, 98 Reprint 1021. And see other cases infra this section. [a] No matter how high a source an order to do an illegal act comes from, it is no justification; on the other hand, a duty arises to disobey such an order. State v. Sparks, 27 Tex. 627. a [b] A local custom cannot operate to suspend a criminal statute, nor overthrow the rules of evidence by which the commission of an offense is proved. Crockford V. State, 73 Nebr. 1, 102 NW 70. 119 AmSR 876. 33. Everhart v. Peo., 54 Colo. 272, 284. 130 P 1076 (where it was argued by counsel that prior to this prosecution, neither lawyer nor layman considered acts like those of plaintiff in error [betting on horse races] as being within the inhibition 36. See infra § 59. Ala.-Reese v. State, 73 Ala. 18; Winter v. State, 30 Ala. 22; State v. Bell, 5 Port. 365. Cal.-Peo. V. Richmond, 29 Cal. 414; Peo. v. Green, 22 Cal. A. 45, 133 P 334. Conn.-State v. Boylan, 79 Conn. 463, 65 A 595. D. C.-Hyde v. U. S., 35 App. 451 [writ of certiorari granted 218 U. S. 681 mem, 31 SCt 228 mem, 54 L. ed. 1207 mem]; Smith v. District of Columbia, 12 App. 33. Ga.-Hately v. State, 15 Ga. 346. late state laws or municipal ordinances may be arrested and punished like other individual offenders. While a corporation can act only through its of ficers, agents, and employees, it cannot authorize them to violate the criminal law of the state without responsibility for their acts.38 For ultra vires acts the agents responsible for them are usually the only ones who may be punished, but for acts not ultra vires the agents may be punished, although the corporation, if it authorized or directed the act, may also be punished as a joint offender.40 39 rection of his own government, and diplomatic negotiations in relation to the same are then pending. 41 44 [57] 4. Entrapment and Instigation. While it has been said that the practice of entrapping persons into crime for the purpose of instituting criminal prosecutions is to be deplored,+2 and while instigation, as distinguished from mere entrapment, has often been condemned and has sometimes been held to prevent the act from being criminal or punishable, the general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the "decoy solicitation" of persons seeking to expose the criminal,45 or that detectives feigning complicity in fully defend himself upon the the- | 158 SW 288. ory that he was acting for the pur- [b] Robbery.-The mere fact that chaser and not the seller." Buchan- the prosecution carried marked an v. State, 4 Okl. Cr. 645, 648, 112 money in anticipation of being P 32, 36 LRANS 83. robbed does not relieve the ac[c] Applications of rule see Gam-cused from liability in a prosecution for robbery. Tones v. State, 48 Tex. Cr. 363, 88 SW 217, 122 AmSR 759, 1 LRANS 1024, 13 AnnCas 455. See also Burglary § 22; Postoffice [31 Cyc 1005, 1111]. Acting under direction of foreign government. A crime is punishable as such when committed in our territory by a foreigner, although he shows in defense that the crime was committed under the di383, 101 NE 582. Ind.-Douglass v. State, 18 Ind. A. 289, 48 NE 9. Ky-Com. v. Bottom, 140 Ky. 212, 130 SW 1091. Mass.-Com. v. Feeney, 13 Allen 500; Com. v. Whalen, 16 Gray 23;ing [20 Cyc 897 text and note 43]; Com. v. Drew, 3 Cush. 279; Com. Intoxicating Liquors [23 Cyc 206]; v. Hadley, 11 Metc. 66. Larceny [25 Cyc 26 et seq]. Miss.-Wortham v. State, 80 Miss. 205, 32 S 50; Kliffield v. State, 5 Miss. 304. Mo.-State v. Chauvin, 231 Mo. 31, 132 SW 243, AnnCas1912A 992; State v. Bryant, 14 Mo. 340; Schmidt v. State, 14 Mo. 137; Hays v. State, 13 Mo. 246; State v. Robinson, 163 Mo. A. 221, 146 SW 456. Nebr. Alt v. State, 88 Nebr. 259, 129 NW 432 35 LRANS 1212; Allyn v. State, 21 Nebr. 593, 33 NW 212. N. Y.-Peo. v. Dunlap, 32 Misc. 390, 66 NYS 161; Curtis v. Knox, 2 Den. 341. N. C.-State v. Crosset, 81 N. C. 579. Okl.-Buchanan v. State, 4 Okl. Cr. 645, 112 P 32, 36 LRANS 83. Pa. Com. v. Kolb, 13 Pa. Super. 347. S. C.-State v. Matthis, 19 S. C. L. 37. Tenn.-Thompson V. State, 105 Tenn. 177, 58 SW 213, 80 AmSR 875, 51 LRA 883; Atkins v. State, 95 Tenn. 474, 32 SW 391. Tex.-Sanders v. State, (Cr.) 26 SW 62; Murphy v. State, 6 Tex. A. 420; Taylor v. State, 5 Tex. A. 529. Utah.-American Fork City Briggs, 43 Utah 252, 134 P 747; American Fork City v. Charlier, 43 Utah 231, 134 P 739. V. Vt.-State v. Potter, 42 Vt. 495; State v. Bugbee, 22 Vt. 32. Wash.-State v. Collins, 93 Wash. 614, 161 P 467. Man.-Rex v. Glynn 19 Man. 63. [a] "The law does not recognize the doctrine of agency as a defense to a criminal charge. It deals with the person who commits the overt act, and while others may be guilty as accessories, the party committing the prohibited act is not permitted to interpose the defense that he acted only as an agent or employee." State v. Chauvain, 231 Mo. 31, 38, 132 SW 243, AnnCas1912A 992. To same effect Thompson v. State, 105 Tenn. 177, 58 SW 213, 80 AmSR 875, 51 LRA 883. Coercion of wife by husband see 59. 38. Peo. v. Archibald, 258 Ill. 383, [a] Since a corporation can com- American Fork City v. Char- 41. Peo. v. McLeod, 1 Hill (N. 45. U. S. Andrews v. U. S., 162 U. S. 420, 16 SCt 798, 40 L. ed. 1023; Grimm v. U. S., 156 U. S. 604, 15 SCt 470, 39 L. ed. 550; U. S. V. Moore, 19 Fed. 39; U. S. v. Healy, 202 Fed. 349; U. S. v. Morgan 181 Fed. 587 [rev on other grounds 222 U. S. 274, 32 SCt 81, 56 L. ed. 198]. Ala.-Borck v. State, 39 S 580. Ill-Peo. v. Smith, 251 Ill. 185, 95 NE 1041; Evanston v. Myers, 172 Ill. 266, 50 NE 204 [rev 70 Ill. A. 205]. Kan.-State v. Spiker, 88 Kan. 644, 129 P 195. Mich.-Peo. v. Rush, 113 Mich. 539, 71 NW 863; Peo. v. Everts, 112 Mich. 194, 70 NW 430. Mo.-State v. Chappell, 179 Mo. 324, 78 SW 585; State v. Feldman, 150 Mo. A. 120, 129 SW 998; State v. Denis, (A.) 67 SW 1101; State V. Lucas, 94 Mo. A. 117, 67 SW 971; 43. See infra this section. State v. Quinn, 94 Mo. A. 59, 67 SW 44. Ga. Dalton V. State, 113 974 [aff 170 Mo. 176, 67 SW 974, 70 Ga. 1037, 39 SE 468. SW 1117]. Ill.-Peo. v. Smith, 251 Ill. 185, v. State, 125 Mo.-State v. West, 157 Mo. 309, 57 SW 1071. N. Y.-Peo. v. Gardner, 144 N. Y. Okl.-De Graff V. State, 2 Okl. Porto Rico.-Peo. v. Fajardo, 23 Tex.-Bird v. State, 49 Tex. Cr. W. Va.-State v. Piscoineri, 68 W. Eng.-Rex v. Chandler, [1913] 1 N. J.-State v. Dougherty, 86 N. J. L. 525, 93 A 98 [rev on other grounds 88 N. J. L. 209, 96 A 56, LRA 1916C 991]; Camden v. Public Service R. Co., 84 N. J. L. 305, 86 A 447 [aff 82 N. J. L. 242, 82 A 609] (signalling street car to stop in order to prosecute for refusal to do so). N. Y.-Peo. v. Krivitzky, 168 N. Y. 182, 61 NE 175, 10 NYAnnCas 245 [aff 60 App. Div. 307, 70 NYS 173, 15 N. Y. Cr. 441] (counterfeiting trade-mark); Peo. v. Noelke, 94 N. Y. 137, 46 AmR 128. N. C.-State v. Hopkins, 154 N. C. 622, 70 SE 394; State v. Smith, 152 N. C. 798, 67 SE 508, 30 LRANS 946. Okl.-Cunningham v. State, (Cr.) 111 P 959; Moss v. State, 4 Okl. Cr. 247, 111 P 950; Stack v. State, 4 Okl. Cr. 1, 109 P 126; Caveness v. State, 3 Okl. Cr. 729, 109 P 125. 38. Pa.-Com. v. Wasson, 42 Pa. Super. Tex.-Price v. State, 55 Tex. Cr. 157, 115 SW 586. Utah. Salt Lake City v. Robinson, 40 Utah 448, 125 P 657. Eng.-Rex V. Holden, 2 Taunt. 334, 127 Reprint 1107. [b] Reasons for rule.-(1) "Such [a] doctrine would lead to such serious consequences in attempting to enforce this statute that its unreasonableness is shown in the bare statement." State v. Chauvain, 231 Mo. 31, 38, 132 SW 243, AnnCas1912 A 992. (2) "If this were permitted, the law would become practically a dead letter, and it would be almost tion. impossible to protect society against [a] Offering bribe.-Hummelshine the devices and subterfuges of the v. State, 125 Md. 563, 93 A 990; Peo. 'bootlegger,' because each bootleg- v. Liphardt, 105 Mich. 80, 62 NW ger' could have first one and then an- 1022; Com. v. Wasson, 42 Pa. Super. other 'go-between' who could success- 38; Davis v. State, 70 Tex. Cr. 524, "We are asked to protect the defendant, not because he is innocent, but because a zealous public officer exceeded his powers and held out a And see other cases infra this sec- bait. The courts do not look to see who held out the bait, but to see who took it. When it was found that the defendant took into his possession the property of the state with intent to steal it, an offense against public justice was established and he could the act were present and apparently assisting in its commission.46 Especially is this true in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct.47 Mere deception by the detective will not shield defendant, if the offense was committed by him free from the influence or the instigation of the detective.48 The fact that an agent of an owner acts as a supposed confederate of a thief is no defense to the latter in not insist as a defense that he would not have committed the crime if he had not been tempted by a public officer whom he thought he had corrupted. He supposed he had bought the assistant district attorney when he handed over the money, but he knew he had not bought the state of New York and, hence, that the assistant had no right to give him its property for the purpose of enabling him to steal it." Peo. v. Mills, 178 N. Y. 274, 289, 70 NE 786, 67 LRA 131 [aff 91 App. Div. 331, 86 NYS 529, 18 N. Y. Čr. 125]. a prosecution for larceny, provided the original design was formed independently of such agent;49 and where a person approached by the thief as his confederate notifies the owner or the public authorities, and, being authorized by them to do so, assists the thief in carrying out the plan, the larceny is nevertheless committed.50 It is generally held that it is no defense to a prosecution for an illegal sale of liquor that the purchase was made by a "spotter," detective, or hired informer;51 but there are Mich. 212, 54 NW 767; Peo. v. Murphy, 93 Mich. 41, 52 NW 1042; Peo. v. Wright, 90 Mich. 362, 51 NW 517; Peo. V. McCord, 76 Mich. 200, 42 NW 1106. Mont. In re Wellcome, 23 Mont. 450, 56 P 445. Nebr.-State v. Sneff, 22 Nebr. 481, 35 NW 219. N. Y.-Peo. v. Du Veau, 105 App. Div. 381, 94 NYS 225, 19 N. Y. Cr. 268. N. C.-State v. Adams, 115 N. C. 775, 20 SE 722. N. D.-State v. Currie, 13 N. D. 655, 102 NW 875, 112 AmSR 687, 69 LRA 405. Okl.-Cunningham v. State, (Cr.) 111 P 959; Taggert v. State, (Cr.) 111 P 959; Moss v. State, 4 Okl. Cr. 247, 11 P 950. Pa.-Com. v. Wasson, 42 Pa. Super. 38; Com. v. Seybert, 4 Pa. Co. 152. S. C.-State v. Covington, 18 S. C. L. 569. In U. S. v. Wight, 38 Fed. 106, 111, Brown, J., in holding the use of decoy letters lawful, said: "We think that no obstacle should be thrown in the way of the detection of crime that does not amount to a practical inducement or solicitation to commit it. The true doctrine in respect to larceny is thus stated by Chitty (3 Crim. Law, 925): If the owner, in order to detect a number of men in the act of stealing, directs a servant to appear to encourage the design, and leads them on until the offense is complete, so long as he did not induce the original intent, but only provided for its discovery after it was formed, the criminality of the thieves will not be destroyed." [a] Decoy letters.-The employment of decoy letters by a govern- C. C. 438; Rex v. Headge, R. & R. ment inspector is not an objection to a conviction for mailing obscene matter. Price v. U. S., 165 U. S. 311, 17 SCt 366, 41 L. ed. 727. See also U. S. v. Wight, 38 Fed. 106 supra this note. [b] Purchase of libelous publication simply for purpose of prosecution. When a sale of certain publications is by law made criminal, the sale to one who buys simply for the purpose of prosecution is criminal, and a sufficient offense to support an indictment. State v. Avery, 7 Conn. 266, 18 AmD 105; Com. v. Blanding, 3 Pick. (Mass.), 304, 15 AmD 214; Swindle v. State, 2 Yerg. (Tenn.) 581, 24 AmD 515; Rex v. Burdett, 4 B. & Ald. 95, 6 ECL 404. 106 Reprint 873; Rex v. Wegener, 2 Stark, 245, 3 ECL 395. [c] Violation of Federal Pure Food Act.-The mere fact that an interstate shipment of a misbranded article was induced by an agent of the department of agriculture is no defense to a prosecution based on such shipment. U. S. v. Morgan, 181 Fed. 581 [rev on other grounds 222 U. S. 274, 32 SCt 81, 56 L. ed. 1981 46. Ala.-Thompson v. State, 106 Ala. 67, 17 S 512. Cal.-Peo. v. Hanselman, 76 Cal. 460, 18 P 425, 9 AmSR 238. Ga-Dalton v. State, 113 Ga. 1037, 39 SE 468; Varner v. State, 72 Ga. 745; O'Halloran v. State, 31 Ga. 206; Gordon v. State, 7 Ga. A. 691, 67 SE 893. Ind.-Thompson v. State, 18 Ind. 386, 81 AmD 364. Iowa State v. Abley, 109 Iowa 61, 80 NW 225, 77 AmSR 520, 46 LRA 862. Kan.-State v. Stickney, 53 Kan. 308, 36 P 714, 42 AmSR 284; State v. Jansen, 22 Kan. 498. La-State V. Dudoussat, 47 La. Ann. 977, 17 S 685; State v. Duncan, 8 Rob. 562. Mich.-Peo. v. Liphardt, 105 Mich. 80, 62 NW 1022; Peo. v. Curtis, 95 [16 C. J.-7] Tex.-Pigg v. State, 43 Tex. 108; Alexander V. State, 12 Tex. 540; Crowder v. State, 50 Tex. Cr. 92, 96 SW 934; Robinson v. State, 34 Tex. Cr. 71, 29 SW 40, 53 AmSR 701; Conner v. State, 24 Tex. A. 245, 6 SW 138. Utah.-Salt Lake City v. Robinson, 40 Utah 448, 125 P 657. Eng. Reg. V. Lawrence, 4 Cox 119. [a] "However reprehensible it may be as violative of the principles of propriety and morality, the fact that a witness has acted as a detective or decoy, apparently entering into the criminal plan in order to detect and expose it, does not, of itself, render his evidence unworthy of belief." In re Wellcome, 23 Mont. 450, 472, 59P 445. [b] Larceny. Where a detective employed by the owner acts with the thief the taking is none the less larceny. State v. Smith, 33 Nev. 438, 117 P 19, 23 [quot Cyc]; Pigg v. State, 43 Tex. 108; Johnson v. State, 3 Tex. A. 590; Reg. v. Gill, 6 Cox C. C. 295. 47. Moss v. State, 4 Okl. Cr. 247, 111 P 950. 48. Peo. v. Bunkers, 2 Cal. A. 197, 84 P 364, 370; Rater v. State, 49 Ind. 507; State v. Ebel, (Mo. A.) 188 SW 1132; State v. Currie, 13 N. D. 655, 102 NW 875, 112 AmSR 687, 69 LRA 405. 49. Fla. Lowe v. State, 44 Fla. 449, 32 S 956, 103 AmSR 171. La.-State v. Duncan, 8 Rob. 562. Nev.-State v. Smith, 33 Nev. 438, 117 P 19 [quot Cyc]. Tenn-McAdams v. State, 8 Lea 456; Dodge v. Brittain, Meigs 84. Tex.-Alexander v. State, 12 Tex. 540; Crowder v. State, 50 Tex. Cr. 92, 96 SW 934. Eng.-Rex. v. Egginton, 2 B. & P. 508, 126 Reprint 1410. 50. Ga. Varner v. State, 72 Ga. 745. Mo.-State v. Hayes, 105 Mo. 76, 16 SW 514, 24 AmSR 360. Nev.-State v. Smith, 33 Nev. 438, 117 P 19, 23 [quot Cyc]. N. Y.-Peo. v. Mills, 178 N. Y. 274, 70 NE 786, 67 LRA 131. Tenn.-McAdams v. State, 8 Lea 456. 51. Ala-Borck v. State, 39 S 580. Ill-Evanston v. Myers, 172 I11. 266, 50 NE 204 [rev 70 11. A. 205]. Ind.-Rater v. State 49 Ind. 507. Kan.-State v. Spiker, 88 Kan. 644, 129 P 195. Mich.-Peo. v. Rush, 113 Mich. 539, 71 NW 863; Peo. v. Everts, 112 Mich. 194, 70 NW 430. Mo.-State v. Ebel, (A.) 188 SW 1132; State v. Richie, (A.) 180 SW 2; State v. Feldman, 150 Mo. A. 120, 129 SW 998; State v. Dennis, (A.) 67 SW 1101; State v. Weber, (A.) 67 SW 1101; State v. Lucas, 94 Mo. A. 117, 67 SW 971; State v. Quinn, 94 Mo. A. 59, 67 SW 974 [aff 170 Mo. 176, 67 SW 974, 70 SW 1117]. Mont.-State v. O'Brien, 35 Mont. 482, 501, 90 P 514, 10 AnnCas 1006 [quot Cyc]. N. Y.-Onondaga County v. Backus 29 HowPr 33. N. C.-State v. Hopkins, 154 N. C. 622, 70 SE 394; State v. Smith, 152 N. C. 798, 67 SE 508, 30 LRANS 946. Okl.-Cunningham v. State, (Cr.) 111 P 959; Taggert v. State, (Cr.) 111 P 959; Moss v. State, 4 Okl. Cr. 247, 111 P 950; Stack v. State, 4 Okl. Cr. 1, 109 P 126; Caveness v. State, 3 Oki. Cr. 729, 109 P 125; De Graff v. State, 2 Okl. Cr. 519, 103 P 538. Tex.-Lambert v. State, 37 Tex. Cr. 232 39 SW 299. Utah. Salt Lake City v. Robinson, 40 Utah 448, 125 P 657. [a] If "the decoy is one whose appearance, or otherwise, conveys knowledge of his disability, or is sufficient, to put the seller on inquiry, any sale [of intoxicating liquor made to an Indian] is voluntary, establishes guilt, and warrants conviction." U. S. v. Healy, 202 Fed. 349, 350. [b] In Colorado in a case in which the money used for the purchase of liquor was that of a detective, and the witness who bought the liquor was procured by the detective and not by the town officer, and there was a legitimate effort to ascertain whether the town ordinances were being violated and not merely an attempt to induce a violation of the ordinance for the purpose of replenishing the town treasury, it was said: "We do not understand that the court of appeals has gone to the extent of saying that a municipal officer cannot employ persons to ascertain whether the ordinances are being violated, and that prosecutions cannot be supported by testimony procured in the way shown in this case; although, if carried to its logical conclusion, the doctrine announced in the two cases referred to might include this case. However, we are not prepared to announce as a doctrine that town attorneys are to be so handicapped in the performance of their duties that prosecutions may not be sustained by the testimony obtained in the manner the testimony in this case was obtained." Peo. v. Chipman, 31 Colo. 90, 95, 71 P 1108 [dist Walton v. Canon City, 14 Colo. A. 352, 59 P 840; Peo. v. Braisted, 13 Colo. A. 532, 58 P 796]. But compare Wilcox v. Peo., 17 Colo. A. 109, 67 P 343 (holding that a prosecution for an alleged illegal sale could not be maintained where the sale of liquor was induced at the instigation of the town for the purpose of laying a foundation for the prosecution); Ford v. Denver, 10 Colo. A. 500, 51 P 1015 (holding that a suit to recover a penalty for an alleged |