38 Kan. 390 | Kan. | 1888
The opinion of the court was delivered by
This was a criminal prosecution, brought in the district court of Chase county, wherein the defendant, John Brown, is charged with a violation of the provisions of chapter 104 of the Laws of 1883. (Comp. Laws of 1885, ch. 31, §362.) , The statute reads as follows:
“ Section 1. If any person shall be drunk in any highway, street, or in any public place or building, or if any person shall be drunk in his own house, or any private building or place, disturbing his family or others, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding twenty-five dollars, or by imprisonment in the county jail for a period not exceeding thirty days.”
The information contains two hounts, in the first of which the defendant is charged with the offense of being drunk in a street in the city of Cottonwood Falls. In the second he is charged with the offense of being drunk in the court house in said city. A trial was had before the court and a jury, and the defendant was found guilty “ as charged in the information,” and was sentenced to pay a fine of $10 and the costs of suit, and to stand committed to the county jail until such fine and costs were paid. From this sentence he now appeals to this court.
The next question is a more difficult one. It is whether a person may be guilty of the offense forbidden by the statute, where he innocently drinks the liquor which intoxicates him, without having any knowledge of its intoxicating qualities, and without having any idea that it would make him drunk. The court below, over his objections and exceptions, excluded nearly all the evidence offered by him to show his ignorance of the intoxicating character of the liquor, and its possible power to produce drunkenness; and the court also gave, among others, the following instruction to the jury, to wit:
“The defendant’s ignorance of the intoxicating character of liquors drunk by him, if he did drink any such, is no excuse for any drunkenness resulting therefrom, if any did so result.”
It has always been a rule of law that ignorance or mistake of law never excuses, and this with a kindred rule, that all men are conclusively presumed to know the law, is founded upon public policy and grounded in necessity; but no such rule is invoked in this case. The question in this case is simply whether ignorance or mistake of fact will excuse. It is claimed by the prosecution that it will not, and this on account of the express terms of the statute. The statute provides in express terms, and without any exception, that “if any person shall be drunk,” etc., he shall be punished. And it would seem to be contended that there can be no exceptions. But are idiots, insane persons, children under seven years of age, babes, and persons who have been made drunk by force or fraud, and carried into a public place, to be punished under the statute ? And if not, why not ? And if these are not to be punished, then no sufficient reason can be given for pun
With respect to punishment notwithstanding ignorance or honest mistake of fact, Mr. Joel Prentiss Bishop, one of the ablest and most philosophical law-writers of this country, uses the following language:
“A statute general in its terms is always to be taken as subject to any exceptions which the common law requires. Thus, if it creates an offense, it includes neither infants under the age of legal capacity; nor insane persons; nor, ordinarily, married women acting in the presence and by the command of their husbands. If it creates a forfeiture, it does not apply to women under»coverture.” (Bish. Stat. Cr., §131.)
“In the law of crime, the maxim is ignorantia facti exausat. As expressed by Gould, J.: ‘Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse.’ To punish a man who has acted from a pure mind, in accordance with the best lights he possessed, because, misled while he was cautious, he honestly supposed the facts to be the reverse of what they were, would restrain neither him nor any other man from doing a wrong in the future; it could inflict on him a grievous injustice, would shock the moral sense of the community, would harden men’s hearts, and promote vice instead of virtue.'” (1 Bish. Cr. L., §301.)
“What is absolute truth, no man ordinarily knows. All act from what appears, not from what it is. If persons were to delay their steps until made sure, beyond every possibility of mistake, that they were right, earthly affairs would cease to move; and stagnation, death and universal decay would follow. All, therefore, must, and constantly do, perform what else they would not, through mistake of facts. If their minds*395 are pure, if they carefully inquire after the truth but are misled, no just law will punish them, however criminal their acts would have been if promoted by an evil motive, and executed with the real facts in view. In the law, therefore, the wrongful intent being the essence of every crime, it necessarily follows, that, whenever one is misled, without fault or carelessness, concerning facts, and, while so misled, acts as he would be justified in doing were they what he believes them to be, he is legally innocent, the same as he is innocent morally. The rule in morals is stated by Wayland to be, that, if a man ‘know not the relations in which he stands to others, and have not the means of knowing them, he is guiltless. If he know them, or have the means of knowing them and have not improved these means, he is guilty.’ The legal rule is neatly enunciated by Baron Parke thus: ‘The guilt of the accused must depend on the circumstances as they appear to him.’ This doctrine prevails likewise in the Scotch law, as it necessarily must in every system of Christian and cultivated law.” (1 Bish. Cr. L., § 303. See also the able and exhaustive note appended to § 303a.)
The following, among other cases, tend to support the views expressed by Mr. Bishop: Farrell v. The State, 32 Ohio St. 456; same case, 30 Am. Rep. 614; Miller v. The State, 3 Ohio St. 475; Brown v. The State, 24 Ind. 113; Faulks v. The People, 39 Mich. 200; same case, 33 Am. Rep. 374; People v. Parks, 49 Mich. 333; Commonwealth v. Presby, 14 Gray, (80 Mass.,) 65; Duncan v. The State, 7 Humph. 148; Dotson v. The State, 6 Coldw. 545; Birney v. The State, 8 Ohio, 230; Price v. Thorton, 10 Mo. 135; Commonwealth v. Stout, 7 B. Mon. 247; Stern v. The State, 53 Ga. 229; The State v. Hause, 71 N. C. 518; Cutter v. The State, 36 N. J. L. 125. See also the case of Wagstaff v. Schippel, 27 Kas. 450.
There are also many cases in opposition to the views expressed by Mr. Bishop, nearly all of which are cited in a note to the case of Halstead v. The State, 10 Cent. L. J. 290, 294. The decisions in Massachusetts, and also in Michigan, are to some extent contradictory and conflicting. There are cases in each of these states which support and others which oppose^ the views expressed by Mr. Bishop. In Massachusetts and in Michigan is found the greatest departure from the doctrine
“Ignorance or mistake of fact may in some cases be admitted as an excuse; as, where a man intending to do a lawful act, does that which is unlawful. Thus, where one being alarmed in the night by the cry that thieves had broken into his house, and searching for them, with his sword, in the dark, by mistake killed an inmate of his house, he was held innocent. So if the sheep of A stray into the flock of B, who drives and shears them, supposing them to be his own, it is not larceny in B. This rule would seem to hold good in all cases where’ the act, if done knowingly, would be malum in se. But where a statute commands that an act be done or omitted, which in the absence of such statute might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute, it seems will not excuse its violation. Thus, for example, where the law enacts the forfeiture of a ship having smuggled goods onboard, and such goods ai’e secreted on board by some of the crew, the owner and officers being alike innocently ignorant of the fact, yet the forfeiture is incurred notwithstanding their ignorance. Such is also the case in regard to many other fiscal, police and other laws and regulations, for the mere violation of which, irrespective of the motives or knowledge of the party, certain penalties are enacted; for the law in these cases seems to bind*397 the party to know the facts and to obey the law at his peril.” (3 Greenl. Ev., §21.)
Before closing this opinion, it might be well to state that the fact that the defendant became intoxicated through an honest mistake, might not constitute a complete defense to the action. If after becoming drunk, he was still sufficiently in the possession of his faculties to know what he was doing, and to know the character of his acts, and went voluntarily into a public place, he would be guilty.
The judgment of the court below will be reversed, and the cause remanded for a new trial.