Volume 40

Issue 2 Dickinson Law Review - Volume 40,

1935-1936

1-1-1936

Ignorance or Mistake of Law as a Defense in Criminal Cases

Richard E. Kohler

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Recommended Citation
Richard E. Kohler, Ignorance or Mistake of Law as a Defense in Criminal Cases, 40 DICK. L. REV. 113
(1936).
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 DICKINSON LAW REVIEW

IGNORANCE OR MISTAKE OF LAW AS A DEFENSE IN CRIMINAL CASES

"Everyone is presumed to know the law" is a maxim that has become familiar
to all jurists and to many laymen. 1 As has been the case with many other legal
maxims, it has been criticized by bench and bar. 2 Even though the maxim is con-
demned as a rule of law, or as a poorly expressed rule of law, the fact remains that
it must have had an authoritative foundation. It is the purpose of this note to ex-
amine the size and strength of this foundation.
The legal scholar is also familiar with a Latin maxim which is frequently
quoted as expressive of the same rule of law- "Ignorantia juris non excusat, ignor-
antia facti excusat." ' "Ignorantia" has been translated both as ignorance and as
4
mistake, the two terms being used interchangeably.
In order to apply the doctrine correctly it is necessary to distinguish clearly
a mistake of law from one of fact. Ignorance or mistake of law occurs when one
has full knowledge of facts but is either ignorant of the legal effect of those facts
or retains an erroneous belief as to their legal effect. In the Roman law the follow-
ing case was used to illustrate the distinction: If an heir is ignorant of the death of
his ancestor he is ignorant of the fact; but, if being aware of the death and his own
relationship, he is ignorant that certain rights have thereby become vested in him-
self, he is ignorant of the law. 5
Blackstone tells us that the doctrine is of Roman origin, and later writers quite
universally confirm this view. 6 Most of the authorities, however, express con-
siderable doubt as to its applicability to criminal cases, declaring that it applied
to civil cases only. 7 Whether such be the case or not, we do know that certain
classes were exempted from the rule because it was considered that people of in-
ferior legal intelligence would not have knowledge of the law. This group con-
sisted of persons under twenty-five years of age, women, soldiers, peasants, and
other persons of a limited knowledge.s

1The presumption is conclusive, Com. v. Jellico Coal Co., 96 Ky. 373, 29 S. W. 26 (1895).
2"There is no presumption in this country that every person knows the law. It would be con-
trary to common sense and reason if it were so." Maule, J., in Martindale v. Faulkner, 2 C. B. 706
(1846). "That the axiom contains an untruth is conceded. No man, in any community, knows
the law either intensively or extensively ...... To predicate that of the ignorant which cannot
be predicated of the learned is absurd." Wharton, Criminal Evidence, Section 723.
3There are different wordings, "Ignorantia eorum, quae quis scire tenetur, non excusat," I
Hale P. C. 42. "Ignorantia excusatur, non juris sed facti." 2 Bouvier Law Dict. 355. "Ignorantia
juris, quod quisque tenetur scire, neminem excusat," 4 BI. Comm. 27.
44 BI. Comm. 27.
SDigest 22, 6. 1. See 1 Spence, Eq. Jur. 632.
6
"Ignorantia juris, quod quisque tenetur scire, neminem excusat is as much the maxim of our
own law as it was of the Roman." 4 BI. Comm. 27.
7
Hunter, Roman Law, 3d., 660; Domat, Civil Law, Sections 1224-1240.
8
Digest, Book XXII.
 DICKINSON LAW REVIEW

The doctrine became firmly established in the common law early in the 13th
century. 9 The general rule has come to include not only common law offenses
but also statutory crimes, felonies and misdemeanors, and crimes mala prohibita
as well as mala in se.10 The English common law exempted no particular class
of persons as did the Roman law. The Doctor and Student specifically includes
infants, knights, and noblemen who "are bound most properly to set their study
to acts of chivalry for the defense of the realm," and husbandmen "that may not
by reason of their labor put themselves to know law." Even one who could not
possibly have learned of a law, having been at sea when the statute was enacted
and violated, was held accountable. 1 Similarly, a foreigner ignorantly violating
a law is liable for punishment even though it would not have been an offense in
12
his native land.
Since the defendants in some cases had no opportunity to ascertain the law
it seems that negligence is not the underlying theory upon which the criminal liabi-
lity is justified. A California court states: "The rule rests on public necessity
........ If a person accused of a crime could shield himself behind the de-
fense that he was ignorant of the law which he violated, immunity from punish-
ment would in most cases result.' ' 3 Somewhat similar reasoning was used by a
court in North Carolina when it stated: "Courts are compelled to act upon this rule
as well in criminal as civil matters. It lies at the foundation of the administration
of justice. And there is no telling to what extent, if admissible, the plea of ig-
norance would be carried, or the degree of embarrassment that would be intro-
duced at every trial ....... .To allow ignorance as an excuse would be to
offer a reward to the ignorant."" There have been other justifications given de-
pending, to some degree, upon the character of the accused. For example, a public
officer who ignorantly violates a statute which he should have understood in order
to fulfill correctly the duties of his office, is not excused because he has been culp-
ably negligent. In Pennsylvania, our own Chief Justice Gibson has expressed the
rule as follows: "Ignorance of the law will not excuse in any case; and this prin-
ciple is applicable, and with irresistible force, to the case of an officer selected for
his capacity, and in whom ignorance is unpardonable. The very acceptance of the
office carries with it an assertion of a sufficient share of intelligence to enable the
party to follow a guide provided for him, with an unusual attention to clearness

9The earliest case occurred in 1231 and is reported in Bracton's Note Book, Maitland's Ed.
pi. 496. One Waggehastr, was summoned to answer for the breach of a fine committed by enter-
ing upon the land in question. He pleaded that he believed the estate was his own, a belief founded
upon the advice of counsel. This was held to be no defense.
10Com. v. Raymond, 97 Mass. 567 (1867).
1"Rex. v. Bailey, R. & R. 1 (1800).
12participants in a duel, Barronet's Case, 1 El. & Bl. 1 (1852); Rex v. Esop,'7 Car. & P. 456
(1836).
18People v. O'Brien, 31 Pac. 45 (1892).
14State v. Boyett, 32 N. C. 336 (1849).
 DICKINSON LAW REVIEW

and precision. On any other principle a conviction would seldom take place, even
in cases of the most flagrant abuse; for pretexts would never be wanting."' 5 Finally
the policy of the doctrine seems to be excellently expressed in the following state-
ment, "If ignorance of a law were a defense to a prosecution for breaking such law,
there is no law of which a villian would not be scrupulously ignorant."' 16
In at least two cases where the plea of ignorance of the law was denied as a
defense, it was also held that such ignorance may be taken into consideration in
mitigation of punishment. 17 Such a ruling tends to relieve the situation where a
strict application of the doctrine creates an injustice, especially where there are
extenuating circumstances.
Somewhat analogous to the cases of foreigners punished for ignorant viola-
tions of laws which were not offenses in their native lands, are the cases of viola-
tions by those obeying the customs of their own particular sect or group, which are
in conflict with the law of the commonwealth. Thus a Mormon who marries more
than one woman cannot escape liability for bigamy, 8 a Jew cannot escape re-
sponsibility for working on Sunday, 19 and a negro indicted for keeping goods
found cannot introduce evidence of a general belief among his people that goods
thus found without earmark became the property of the finder.20
The Latin term "ignorantia" has been used both as meaning ignorance and
mistake but there is no question that the two terms represent two distinct ideas.
Mistake presumes some consideration of the legal effect of facts and the reaching
ol an erroneous conclusion, while ignorance implies total absence of thought or
consideration. It is for this reason that some writers insist that a distinction should
be made so that a mistake of law would be a valid defense in certain cases. 2 1 Some
courts also have made this distinction. In Lawrence v. Beaubien" it was said, "The
former (ignorance) is passive, and does not presume to reason, and, unless we are
permitted to dive into the secret recesses of the heart, its presence is incapable of
proof; but the latter (mistake) presumes to know, when it does not, and supplies
palpable evidence of its existence." Another court distinguishes the two saying,

15 Coates v. Wallace, 17 S. & R. 75 (1827), a justice of the peace receiving illegal fees. See
also State v. McLean, 121 N. C. 589, 28 S. E. 140 (1897).
16Wharton, Criminal Law, Section 102.
T
1' Rex. v. Esop, 7 C. & P. 456 (1856), a native of Bagdad committing an unnatural crime in
British jurisdiction which was no offense in his native land; Fraser v. State, 112 Ga. 13, 37 S. E.
114 (1900).
1BReynolds v. U. S., 98 U. S. 45 (1878).
19Com. v. Has, 122 Mass. 40 (1877). Same as to a Seventh Day Baptist, Specht v. Com.,
8 Pa.2 312 (1848).
0State v. Welch, 73 Mo. 284, 39 Am. Rep. 515 (1880).
2.See Keedy, Ignorance and Mistake in the Criminal Law, 22 Harvard Law Review 75, "Where
the defendant errs in applying law to the facts, thus reaching an incorrect conclusion, and then does
an act which would not have been criminal if the conclusion were correct, he should not be con-
victed because he does not have the guilty mind." See also 23 Am. Dec. 164.
222 Bailey 622, (S. C. 1831). Also Hall v. Reed, 2 Barb. Ch. (N. Y.) 500 (1847).
 DICKINSON LAW REVIEW

"Ignorance does not pretend to knowledge, but mistake assumes to know. Ignor-
ance may be the result of laches, which is criminal; but mistake argues diligence,
which is commendable." 23 On the other hand, some courts say the distinction
is merely a quibble, and declare it is not of such a character as may be used as a
test by the courts. 24 The distinction is somewhat academic because when the de-
fense of mistake of law is allowed it is usually upon some other ground and rarely
because of its distinction from ignorance.
One of the most frequent situations where mistake is relied upon as a defense
arises from a faulty interpretation of the law by another. This has occurred mainly
in three classes of cases: where the defendant has relied upon the advice of counsel,
upon a decision of a court subsequently reversed, or upon the ruling of an ad-
ministrative officer or agency.
The courts have been unanimous in rejecting mistake of law based upon ad-
vice of counsel as a defense.2 5 The reason usually given is that any other view
would make the "opinion of counsel paramount to law." One of the most famous
of these cases-is popularly called Miss Anthony's Case.2 6 The defendant, Susan
B. Anthony, was indicted for voting illegally. She defended by declaring that
her counsel advised her that she had a legal right to vote. Judge Hunt overruled
the defense and stated to the jury, "The precise question has been several times
decided, viz., that one illegally voting is bound to know the law."
A decision of a court, when relied upon, has been recognized as a valid de-
fense to a prosecution brought after the decision was reversed for an act done before
the reversal. 27 If the decision was one of an inferior tribunal it is no defense.2 8
In State v. O'Nei129 a criminal statute had been declared unconstitutional, the of-
fense was committed, and later the statute was declared valid. it was held that
a prosecution could not be maintained. Justice McClain stated in his opinion, "An
exception to the rule that everyone is required to know the law is justified, we
believe, when, as to the validity of a statute on constitutional grounds, a person has
relied upon the expressed decision of the highest court in the state." The court
experienced considerable difficulty in reversing the conviction because the statute
was deemed to be constitutional from the beginning. The six judges disagreed
as to the basis of the decision. Chief Justice Deemer was of the opinion that the

2
3Culbraith v. Culbraith, 7 Ga. 64 (1849).
24
Champlin v. Laytin, 18 Wend. 407 (1837); Schlesinger v. U. S., 1 Ct. of Cl. 16 (1863);
Jacobs v. Morange, 47 N. Y. 57 (1871).
25
People v. McCalla, 220 Pac. 436 (Cal. 1923); State v. Hunt, 25 R. I. 75, 54 Atl. 937 (1903);
Weston v. Com., 111 Pa. 251 (1885); Miller v. U. S., 277 Fed. 721 (1921); State v. Marsh, 36
N. H. 196 (1858).
2
6U. S. v. Anthony, 24 Fed. Cases No. 14459 (1873).
27
State v. O'Neil, 147 Iowa 513, 126 N. W. 454, 33 L. R. A. 788 (1910) ; State v. Longino,
109 Miss. 125, 67 So. 902 (1915) ; State v. Bell, 136 N. C. 674, 49 S. E. 163 (1904).
28State v. Striggles, 202 Iowa 1318, 210 N. W. 137 (1926). See also note in 49 A. L. R. 1273.
29147 Iowa 513, 126 N. W. 454, 3!L.. R.A. 788 (1910).
 DICKINSON LAW REVIEW

principle reached by the majority was unsound. He concurred in the result, but
reached it by holding that a change of decisions involving constitutionality of a
statute should be prospective in operation and not retroactive, and that to punish
the defendant would violate the constitutional protection against cruel and unusual
punishment. Justice Weaver based his decision upon the theory that there is an
implied term in every statute that it is not to be enforced against one after an
authoritative judicial decision declaring the statute unconstitutional.
In State v. Striggle ° it was held that a decison of a municipal court could not
be relied upon as a defense to a crime. The defendant had been advised by the
county attorney and the mayor that he was doing a legal act. This advice, by way
of letter, along with a certified copy of the decree of the municipal court was offered
in evidence. Objection to them was sustained. In its opinion the court states:
"We are disposed to hold with the O'Neil case that, when the highest court of a
jurisdiction passes on any given proposition, all citizens are entitled to rely upon
such decision; but we refuse to hold that any decisions of any court below, inferior
to the supreme court, are available as a defense under similar circumstances."
In a quite recent case of analogous nature, 31 the Supreme Court of Florida has
ruled that where one relies upon a decision of a circuit court, holding that a
statute that governs his conduct is unconstitutional, no liability in the form
of a penalty for violating the alleged unconstitutional statute is incurred when the
act would be simply malum prohibitum if the statute later should be declared con-
stitutional. This court would seem to follow the view taken by Bishop that when
an act is merely malum prohibitum it would be gross injustice to punish a man for
an act pronounced lawful by the tribunals. He would call it "ex post facto judicial
legislation." 2
The majority of the cases hold that it is no defense that the advice of an ad-
ministrative officer or agency was relied upon. 3- The defense was recognized
however, in a recent California case. 34 The defendant had been advised by deputy
corporation commissioners and by the assistant commissioner that he needed no
license to sell certain securities. In a prosecution for so doing, objection to this
evidence was sustained, but the Supreme Court held it was error. Again the court
points out that it was an act malum prohibitum and says, "we cannot believe the
law so inexorable as to require the brand of felon upon him for following advice
so obtained." The conclusion reached in this case is commendable, especially since
the defendant was forced to act without a license or refrain from selling his securi-

30202 Iowa 1318, 210 N. W. 137 (1926).

1
S State ex. rel. Williams v. Whitman, 156 So. 705 (Fla. 1934).
32Bishop, Criminal Law, vol. 1, Section 96.
33
State v. Foster, 22 R. I. 153, 46 Atd. 833 (1900), advice of the state treasurer; Hoover v.
State, 59 Ala. 57 (1877), advice from a probate judge; Hamilton v. People, 57 Barb. (N. Y.) 625
(1870). See note in 61 A. L. R. 1153.
34
people v.Ferguson, 54 Cal. App. 615, 24 P. (2d.) 965 (1933).
 DICKINSON LA1W REVIEW

ties because the whole matter of licenses was in the hands of the corporation com-
missioners.
Generally, misapprehension or misinterpretation of a statute by the defendant
himself is not a defense.3 5 There are cases which make an exception to this rule
where the law isnot settled or isobscure 3 6 A Georgia case" denies this exception
and declares, "the rule is applicable even where the criminality is not so obvious
because of the fact that the law bearing upon the subject is involved in more or
less confusion, and therefore less capable of being easily and readily understood."
This statement is merely dictum and a recent Texas case 8s is authority for the pro-
position that the modern tendency is to allow the exception. Article 40 of the
Penal Code (1925) of that state provides that "No mistake of law excuses one
committing an offense." The defendant, a sheriff, was indicted and convicted
of extortion. He had collected five dollars from the state for traveling expenses
in serving a subpoena. The appellate court found that the statute fixing the fee
in question was obscure and confusing, subject to more than one reasonable inter-
pretation. It held that if the defendant reasonably believed that he was entitled
to the fee he demanded he was not guilty of extortion and a new trial was granted
because the trial court refused to admit such an affirmative defense into the charge.
The court also affirmed a prior case 3 9 holding that when the statute is clear the rule
that mistake of law is no defense would be applied in all its rigor.
Generally, the doctrine that a statute may be abrogated by nonuser does not
prevail in this country, so that one may not defend his violation of a statute by de-
claring that he was lulled into a belief that the law was abrogated by previous fail-
ure to prosecute its violation. In Everhart v. Peole 4° the court states, "It is a
matter of common knowledge that many laws are enacted which lie dormant, in
whole or in part, for years. We know of no court, however, that has held that
things clearly within the letter and spirit of an act are excluded from the operation
thereof because of such desuetude." That others have violated a law without being
arrested and leading the defendant to believe that the act is legal is, of course, no
41
defense.
Mistake of law as a defense has been submitted quite frequently in prose-
cutions for adultery and bigamy. Marital status is usually a question of law. Thus
one who marries a second time under a mistaken belief that his first marriage is

5
S9 Fraser v. State, 112 Ga. 113, 37 S. E. 114 (1900). A physician who issues prescriptions
for narcotics in violation of the Harrison Act must stand convicted even though the leading phy-
sicians of the community believed the method lawful. Mitchell v. U. S., 3 Fed. (2d.) 514 (1925).
S6Cutler v. State, 36 N. J. L. 125 (1873).
8
7Levar v. State, 103 Ga. 42, 29 S. E. 467 (1897).
3SBurns v. State, 61 S. W. (2d.) 512 (1933).
99Lewis v. State, Texas Cr. App., Opinion No. 15269.
40130 Pac. 1076 (Col. 1913).
4
1State v. Sugarman, 148 N. W. 466 (1914).
 DICKINSON LAW REVr3W

void is guilty of bigamy, providing the statute does not require a criminal intent. 42
Good faith of the defendant in believing that a divorce was valid and dissolved
the former marriage, or that a separation had the effect of a divorce is no defense.4
The arguments for this American view seem to be that where the legislature has
not made intent an element of the crime the courts have no right to do so and that
public policy forbids the protection of two separate marriages by the same person."
When the mistake of the defendant arose from an erroneous belief that his
or her previous spouse had secured a divorce some courts allow such mistake as
a defense. 5 The cases which adopt this view usually place the burden of proof
upon the defendant to show his honest belief or such care and inquiry as to justify
such a belief. On the other hand, some jurisdictions hold that mistake as to whether
a divorce was granted is no defense, reaching the same result as in cases of mis-
46
take of law.
There is a class of cases in which one who acted under a bona fide mistake
of law may use such mistake as a defense. Crimes which have a particular form
of mens rea as a necessary element are not committed when one, even though he
commits the physical element of the crime, does not have the specific intent be-
cause he acted under a mistake of law. The mistake is said to negative the intent.
An excellent example of this situation is expressed by Coleridge J.,47 "Ignorance
of the law cannot excuse any person, but, at the same time, when the question is
with what intent a person takes, we cannot help looking into his state of mind as
if a person takes what he believes to be his own, it is impossible to say he is guilty
of felony." In larceny cases it may be admitted in proof that the defendant took
the property under a claim of right, even though erroneous, and thus acting under
a mistake of law. 48 The doctrine is applicable only when the defendant acted
under a bona fide claim of right, and only when the mistake acts to negative some
specific criminal intent that has been made an element of the crime. Mere cus-
tom to take another's property and a belief that it is harmless would not be a de-
fense.' 9 The doctrine is likewise applicable to robbery.5 0 In malicious mischief

2
4 Staley v. State, 131 N. W. 1028, 34 L. R. A. 613 (Neb. 1911); Medrano v. State, 22 S. W.
684 (Texas 1893); Corn. v. Hayden, 163 Mass 453 (1895).
43
State v. Hughes, 58 Iowa 165, 11 N. W. 706 (1882); State v. Sherwood, 68 Vt. 414, 35
At. 352 (1896).
44
See annotation in 57 A. L. R. 792.
45Squire v. State, 46 Ind. 459 (1874); Leseur v. State, 176 Ind. 448, 95 N. E. 239 (1911);
Robinson v. State, 6 Ga. App. 696 (1909).
46Eldridge v. State, 126 Ala. 63, 28 So. 580 (1900); People v. Spoor, 235 Ill. 230, 85 N. E.
207 (1908); Rex. v. Wheat, 2 K. B. 119 (1921).
47
1n Reg. v. Reed, Car. & M. 308 (1841).
48People v. Husband, 36 Mich. 306 (1887); Corn. v. Stebbins, 8 Gray (Mass.) 492 (1857);
State v. Diehl, 64 N. C. 270 (1870) ; People v. Devine, 95 Cal. 227, 30 Pac. 378 (1892),
49Corn. v. Doane, i Cush. (Mass.) 5 (1848).
5ORex v. Hall, 3 Car. & P. 409 (1828).
120 DICKINSON LAW REVIEW

it is a defense that the act is committed in a mistaken belief as to a legal right, 51 and
the same applies to a charge of assault,5 2 One may defend an alleged perjury by
showing that he was acting under bona fide advice of counsel.5 3 In cases of
criminal conspiracy, where the question is one of intent, advice from counsel or
other good faith of the defendant may be considered by the jury. 54 On the other
hand, it should be noted that the ignorance or mistake may be the result of gross
negligence for which the defendant may be held accountable.
The rule that ignorance or mistake of law is no defense has been invoked
quite frequently in the Pennsylvania courts. In the early case of Coates v. Ilal-
lace56 a justice of the peace was held accountable for demanding and receiving
illegal fees, though it be done in mistake or ignorance and without any corrupt
intent. This doctrine has been reiterated many times in civil actions for penalties. 6
In Weston v. Com.6 7 the defendant had committed murder in a dispute over
land. He attempted to introduce evidence to the effect that he had been advised by
counsel that he had a legal right to maintain possession of the land. Such testi-
mony was held inadmissable.
There are a few Pennsylvania cases which recognize the defense of mistake
in cases of malicious mischief because it negatives the specific intent. 58 As was
said in Com. v. Shajfer,69 "Where the injurious act is done or committed in the
exercise or enforcement of what the defendant honestly believes to be his legal
right, even though such belief be mistaken, there can be no conviction." A lower
court case 60 clearly illustrates the application of this doctrine. A Federal prohibi-
tion officer had been advised by a United States attorney that he might lawfully
-.. , .. -r-.. . , , uulUL him to seiZe, He desuroyea
cereal beverage which contained less than one half of one per-cent alcohol in
the mistaken belief that it contained more than this legal limit. It was held he
was not guilty of larceny or malicious mischief because he had no intention of de-
priving the owner of his property or injuring it.
In Com. v. Weiserth" an inspector of elections was convicted of having know-
ingly rejected the vote of a qualified voter when an imposter had previously voted

5
1Sattler v. People, 59 Ill. 68 (1871) ; Palmer v. State, 45 Ind. 388 (1873).
52 Wharton, Criminal Law, Section 104.
63
State v. McKimnney, 42 Iowa 205 (1876); U. S. v. Stanley, Fed. Case No. 16,376 (1853).
64
Miller v. U. S., 277 Fed. 721 (1921).
6617 S. & R. 75 (1827).
56Aechternacht v. Watmough, 8 W. & S. 162 (1844); Gault v. Dunbar, 1 Phila. 26 (1850);
Wilson v. Barrett, 24 Pa. Super. 68 (1903) ; Whitmore v. Craig, 32 Pa. Super. 292 (1907).
67111 Pa. 251 (1885).
68
Con. v. Shaffer, 32 Pa. Super. 375 (1907); Com. v. Drass, 146 Pa. 55 (1892).
59Supra, n. 58.
6OCom. ex. rel. Smith v. Sheriff of Phila. Co., 7 D. & C. 240 (1926).
6147 Pa. Super. 592 (1911).
 DICKINSON LAW REVIEW

under the citizen's nme and the inspector acted in good faith after deliberation
and consultation with others.
When one commits an act which is not the essential element of a certain crime
he is not guilty of the crime even though, through ignorance or mistake of law,
he thought he was committing the crime. Thus in Wallis v. Mease62 the court states,
"If a felony was not committed in the act, the intention, however it may be in a
moral point of view, will not in law make it felony." In recognizing the futility
of mistake as defense the court further states, "But if the taking of the honey was
actually a felony, the thinking it otherwise could not reduce it from a felony and
make it only a trespass. For even the understanding of a whole people contrary
to the law, would not make it cease to be a crime."
One case in Pennsylvania recognizes the defense of mistake in an accusation
of perjury.9 If one is advised by counsel that certain land is unimproved and he
swears that it is so in an affidavit he cannot then be convicted of knowingly swear-
ing a false affidavit if the land is improved as a matter of law.
There has been no case in Pennsylvania where the refusal to allow mistake
as a defense has worked a great hardship, and thus Pennsylvania has had no
chance to apply the more liberal and modern views of the doctrine. It seems like-
ly that should cases arise similar to those in the more liberal jurisdictions Pennsyl-
vania will fall into line with the exceptions which have been made in other states.
There has been some criticism of the mistake rule. The criticism has arisen
mainly in regard to cases in which the defendant has done an act which is criminal,
because of his misconception of a pre-existing status or condition arising from the
improper application of law to the facts. It is earnestly contended that to deny
the defense in such cases works an injustice." 4 It is extremely difficult to disting-
uish such cases from mistakes of fact. The following has been submitted as an ex-
ample: A statute makes a trespass on land criminal. A and B own adjoining
estates and through each a private road leads to the highway. A, while driving
along the highway, determines to turn into his own lane but turns into B's by mis-
take. A would be excused because he acted under a mistake of fact. Now let us
suppose A goes into a field, which under the deed belongs to B, believing it be-
longs to him. Does it seem fair to convict him for this and acquit him in the first
situation? It would seem to be a better rule to apply the mistake of fact doctrine
to the latter situation.

623 Binn. 546 (1811).

6
3Com. v, Clark, 157 Pa. 257 (1893).
64
Keedy, Ignorance and Mistake in the Criminal Law, 22 Harvard Law Review 75.
 DICKINSON LAW' REVIEW

In conclusion the following generalizations may be made:

I. Ignorance of the common law or a statute is never a defense.
II. A mistake of law is not a defense, except:
A. When the mistake was due to a reliance on a decision of the high-
est court in the state.
B. When the law upon the subject is confusing or obscure, and capable
of more than one reasonable interpretation.
C. When the mistake negatives the specific intent which is an essen-
tial element of the crime.
Richard E. Kohler

THE FARMER AND THE BANKRUPTCY LAWS

In amending the statutory definition of a farmer under the Bankruptcy Act,

the 74th Congress progressed with one foot and regressed with the other. It inci-
dentally raked anew the coals of an old controversy centering around the question,
Who is a farmer?
Our present Bankruptcy Act,' basically created in 1898 and frequently
amended since then, 2 exempts farmers from involuntary bankruptcys It is not
the writer's purpose to question the wisdom of extending to the farmer the bene-
fitti of voluntary bankruptcy, while withholding froim his creditors the comple-
mentary assistance of involuntary proceedings.4 The humanitarian aspects of our

'Act of July 1, 1898, 30 Stat. 544, 11 U. S. C. A. 1-303.

2
Acts of Feb. 15, 1903; June 15, 1906; June 25, 1910; Mar. 2, 1917; Jan. 7, 1922; May 27,
1926; Feb. 11, 1932; Mar. 3, 1933; May 24, 1934; June 7, 1934; June 18, 1934; June 28, 1934;
May 15, 1935; Aug. 28, 1935.
SBankruptcy Act, section 4b, as amended May 15, 1935, c. 114, sec. 1, 49 Stat. 246; 11 U. S. C. A.
22b. Wage-earners (individuals who work for wages, salary, or hire, at a rate of compensation
not exceeding $1500 per year) and the following corporations are also immune from involuntary
bankruptcy: municipalities, railroads, insurance companies, banks, and building and loan associations.
4That the courts are not in agreement as to the reason for the exception is indicated by the two
following quotations-the one arbitrarily certain, the other hesitatingly general:
"The intent of Congress to protect men in agriculture, who might fall behind from the failure
of crops tor one or two seasons, has always been recognized as the basis for this provision in the
statute." In re Doroski (D. C.), 271 Fed. 8, at p. 9 (1921).
"it may be safely assumed that Congress had no wish to facilitate preferences among a farmer's
banking or mercantile creditors. There were in its judgment, however, reasons which in the over-
whelming majority of cases made it inexpedient that farmers be subject to the possibility of involuntary
bankruptcy, although, of course, there would be instances in which the denial to creditors of the right
to institute bankruptcy proceedings against a farmer would work grave injustice to them and be of
11o benetit to him." In re Disney (D. C.), 219 Fed. 294, at 297 (1915).