others have held the contrary. 129 The same is true of prosecutions for adultery in cohabiting after such marriage.130

129 In the leading English case of Reg. v. Tolson, 23 Q. B. Div. 168, Beale's Cas. 286, the majority of judges of the court of appeal, queen's bench division, held such belief a good defense, notwithstanding a proviso in the statute that it should not apply to any person marrying a second time after the absence of his or her wife or husband for seven years, without being known to such person to have been living within that time. As to this case, see ante, § 56 (b), note. The previous cases of Reg. v. Turner, 9 Cox, C. C. 145, Reg. v. Horton, 11 Cox, C. C. 670, and Reg. v. Moore, 13 Cox, C. C. 544, were in accord with this case; while Reg. v. Gibbons, 12 Cox, C. C. 237, and Reg. v. Bennett, 14 Cox, C. C. 45, were to the contrary.

In this country, there has been the same conflict. That such belief was a good defense was held in Squire v. State, 46 Ind. 459. That it was not a defense was held in Com. v. Mash, 7 Metc. (Mass.) 472, Beale's Cas. 304, Com. v. Hayden, 163 Mass. 453, 47 Am. St. Rep. 468, and State v. Zichfeld, 23 Nev. 304, overruling State v. Gardner, 5 Nev. 377. See, also, State v. Sherwood, 68 Vt. 414 (belief in divorce); Reynolds v. State (Neb.) 78 N. W. 483.

Marrying a second time without reasonable belief of first spouse's death is bigamy. Dotson v. State, 62 Ala. 141, 34 Am. Rep. 2.

130 Where a woman marries and cohabits with a married man, not knowing of his previous mar

(d) Illegal Voting. On a prosecution for illegal voting, it is a good defense to show that the accused believed in good faith in the existence of facts which, if they had existed, would have rendered his vote legal, as that he was twenty-one years of age, that he was born in the United States, that he had resided in the district for the time fixed by the statute, etc. 131

riage, she is not guilty of adultery.

Vaughan v.

State, 83 Ala. 55; Banks v. State, 96 Ala. 78.

In Com. v. Thompson, 6 Allen (Mass.) 591, 83 Am. Dec. 653, Beale's Cas. 308, it was held that a man could not be convicted of adultery, who, in good faith, married and cohabited with a woman whose husband had been absent for more than seven years without being heard from, and was believed by both parties to be dead. The court was influenced by a statute punishing bigamy, which contained a proviso that it should not apply in such a case.

On a new trial in this case, it appeared that the woman had deserted her husband, and remained away for seven years without hearing from him or making inquiry, and a conviction was sustained. Com. v. Thompson, 11 Allen (Mass.) 23, 87 Am. Dec. 685.

131 Gordon v. State, 52 Ala. 308, 23 Am. Rep. 575; Carter v. State, 55 Ala. 181; McGuire v. State, 7 Humph. (Tenn.) 54.

If he knew all the facts, however, mistake as to the law is no excuse. Post, § 73.

(e) Keeping Disorderly House.—A statute punishing any person who shall keep a place resorted to for the purpose of gambling, or for the purpose of prostitution, is to be construed as requiring knowledge that the place is resorted to for such a purpose.182 71. Effect of Being Engaged in Unlawful Act.

(a) In General.-As was explained in a former section, there are many cases in which a person may be held criminally responsible for results not intended by him, because of the fact that he was engaged in the commission of an unlawful act.133 In such a case his ignorance or mistake of fact is no defense. Thus, a man may be guilty of murder if he unintentionally kills another while engaged in the commission of some other felony.134 A man who shoots at a person and kills him is guilty of murdering that person, though he may have intended to kill some other person, 135 A man is guilty of manslaughter

As to the distinction between mistake of law and mistake of fact, in reference to illegal voting, see McGuire v. State, 7 Humph. (Tenn.) 54.

/ 132 State v. Currier, 23 Me. 43.

136

if he assaults another and unintentionally causes his death.1 It has also been held that a person who stabs another with intent. to kill is guilty of an assault with intent to kill him, though he may have mistaken him for some one else.137

(b) Immoral Acts.-If a man is engaged in the commission of an immoral act, even though it may not be indictable, and unintentionally commits a crime, it is generally no defense for him to show that he was ignorant of the existence of the circumstances rendering his act criminal.138 Thus, a man who has unlawful sexual intercourse with a woman cannot defend against a charge of adultery on the ground that he did not know that the woman was married.139 And a man who has intercourse with a girl below the age of consent, with her consent, cannot defend against a charge of rape, or unlawful carnal knowl

136 Post, § 263.

137 McGehee v. State, 62 Miss. 772. As to this. however, there is a conflict in the cases. post, § 208.

See

138 State v. Ruhl, 8 Iowa, 447; Com. v. Murphy, 165 Mass. 66, 52 Am. St. Rep. 496.

139 Com. v. Elwell, 2 Metc. (Mass.) 190, 35 Am. Dec. 398; Fox v. State, 3 Tex. App. 329, 30 Am. Rep. 144.

edge punished by statute, on the ground that he reasonably believed her to be above the age of consent.140 The same principle applies under a statute punishing any person who shall unlawfully take any unmarried girl under a certain age out of the possession and against the will of her father,141 or who shall abduct or entice away any girl under a certain age for the purpose of prostitution, etc. 142

(c) Acts Merely Mala Prohibita.—The principle that a man who is engaged in the

140 Com. v. Murphy, 165 Mass. 66, 52 Am. St. Rep. 496; State v. Houx, 109 Mo. 654; State v. Newton, 44 Iowa, 45.

141 In Reg. v. Prince, L. R. 2 C. C. 154, 13 Cox, C. C. 138, a man was convicted under a statute of unlawfully taking an unmarried girl, under the age of 16, out of the possession and against the will of her father. It was proved that he did take the girl, and that she was under 16, but that he believed and had good reason for believing that she was over 16. It was held that this mistake of fact was no defense, and that he was properly convicted. See, also, Reg. v. Robins, 1 Car. & K. 456; Reg. v. Booth, 12 Cox, C. C. 231. Compare Reg. v. Hibbert, L. R. 1 C. C. 184, 11 Cox, C. C. 246.

142 State v. Ruhl, 8 Iowa, 447; People v. Dolan, 96 Cal. 315. Contra, Mason V. State, 29 Tex. App. 24.