§ 310. Innocent Agent. The doctrines of this sub-title explain how it is that the books speak of crimes being committed through an "innocent agent. Such an agent is one who does the forbidden thing moved by another person, yet incurs no legal guilt because either not endowed with mental capacity or not knowing the inculpating facts.1 III. Ignorance and Mistake both of Law and Fact. § 311. Mixed Question. - In civil causes, it seems that if law and fact are blended as a mixed question, or if one's ignorance of fact is produced by ignorance of law, the whole is treated as ignorance of fact, of which the party may take advantage.2 Perhaps this doctrine is analogous to one appearing under our first sub-title. If not, we must deem that it has not been much illustrated on the criminal side of our law. No reason appears why it may not under some circumstances have a force in criminal cases.1 § 312. Conclusion. This discussion, though long, is necessarily not absolutely full; because many of the questions will require to be treated of under the specific offences, and these volumes are so crowded that the substantial avoiding of repetition becomes indispensable. a certain publication is not obnoxious to this inhibition, but the court think otherwise, it is in him ignorance of the law, which does not excuse. For further particulars, and a review of this case, see a pamphlet entitled, "The Case of the Confessional Unmasked," by "a barrister." London: Printed by A. Gadsby, 10 Crane Court, Fleet Street, E. C. A copy was kindly sent me by some unknown person. I cannot but think that the reviewer is mistaken in supposing that this case undermines fundamental principles in the criminal law. On the question whether, on the whole, the publication was unlawful, considering its object, its argumentation, the methods of its circulation, and the like, I can have no opinion, it not being given in the reports. See C v. Tarbox, 1 Cush. 66. In this case, I happen to know, it was contended at the trial that the obscene libel was published from good motives; but the point was not much pressed in the upper court. 1 See, for various principles concerning an innocent agent, Reg. v. Clifford, 2 Car. & K. 202; Reg. v. Mazeau, 9 Car. & P. 676; Rex v. Giles, 1 Moody, 166, Car. Crim. Law, 3d ed. 191; Anonymous, J. Kel. 53; Reg. v. Bannen, 2 Moody, 309, 1 Car. & K. 295; Reg. v. Bleasdale, 2 Car. & K. 765; Reg. v. Tyler, 8 Car. & P. 616; Reg. v. James, 8 Car. & P. 292; Adams v. P. 1 Comst. 173; C. v. Hill, 11 Mass. 136; Wixson v. P. 5 Par. Cr. 119; Reg. v. Butcher, Bell C. C. 6, 8 Cox C. C. 77; Gregory v. S. 26 Ohio St. 510, 20 Am. R. 774. 2 See 1 Story Eq. Jur. c. 5; and the article in 23 Am. Jur. 147, 371. 3 Ante, § 297-300. 4 And see Reg. v. Bishop, 5 Q. B. D. 259, 14 Cox C. C. 404; S. v. Castle, 44 Wis. 670; S. v. Wells, 70 Mo. 635; S. v. Whitcomb, 52 Iowa, 85; Dorn v. S. 4 Tex. Ap. 67; S. v. Waltz, 52 Iowa, 227. § 313. Carelessness Criminal. There is little distinction except in degree between a will to do a wrongful thing and an indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent.1 Thus, § 314. 1. In Homicide Omission. Every act of gross carelessness, even in the performance of what is lawful, and, a fortiori, of what is not lawful, and every negligent omission of a legal duty, whereby death ensues, is indictable either as murder or manslaughter. To illustrate, 2. Manslaughter in Driving." If," says Archbold,3 " a person by careless or furious driving unintentionally run over another and kill him, it will be manslaughter; or, if a person in command of a steamboat by negligence or carelessness unintentionally run down a boat, &c., and the person in it is thereby drowned, he is guilty of manslaughter." 5 So, 1 Sturges v. Maitland, Anthon, 153; C. v. Rodes, 6 B. Monr. 171. 2 Rex v. Carr, 8 Car. & P. 163; Reg. v. Haines, 2 Car. & K. 368; Rex v. Sullivan, 7 Car. & P. 641; Errington's Case, 2 Lewin, 217; Reg. v. Edwards, 8 Car. & P. 611; Ann v. S. 11 Humph. 159; U. S. v. Freeman, 4 Mason, 505; Castell v. Bambridge, 2 Stra. 854, 856; Rex v. Fray, 1 East P. C. 236; Reg. v. Marriott, 8 Car. & P. 425; U. S. v. Warner, 4 McLean, 463; Rex v. Smith, 2 Car. & P. 449; 1 East P. C. 264, 331; Hilton's Case, 2 Lewin, 214; Reg. v. Barrett, 2 Car. & K. 343; S. v. Hoover, Dev. & Bat. 365, 34 Am. D. 383; Reg. v. Ellis, 2 Car. & K. 470; Etchberry v. Levielle, 2 Hilton, 40; S. v. O'Brien, 3 Vroom, 169; Reg. v. Martin, 11 Cox C. C. 136. And see the cases cited in the remaining notes to this section. In accordance with the text is the Scotch law. Alison Crim. Law, 113. And see Vol. II. § 643, 656 b, 659-662 a, 664, 665, 668, 681, 690-693, 696. 3 Archb. New Crim. Pro. 9. 4 Rex Walker, 1 Car. & P. 320; Rex v. Mastin, 6 Car. & P. 396; Rex v. Grout, 6 Car. & P. 629; Rex v. Timmins, 7 Car. & P. 499; Reg. v. Swindall, 2 Car. & K. 230. 5 Rex v. Green, 7 Car. & P. 156; Rex v. Allen, 7 Car. & P. 153; Reg. v. Taylor, 9 Car. & P. 672. And see Vol. II. § 662 a. ן One who, whether an 3. Ignorant or Careless Medical Practice. educated physician or not, undertakes to deal with another's life or health, "is," in the words of the same author, "bound to use competent skill and sufficient attention, and if he cause the death of the other through a gross want of either he will be guilty of manslaughter." As expressed by a learned English judge, "I call it acting wickedly when a man is grossly ignorant and yet affects to cure people, or when he is grossly inattentive to their safety." 2 "2 Still, ignorance and conceit are sometimes joined to a good intention, and the doctrines of the last chapter teach us that no one should be made a felon for an innocent mistake. Therefore some of our American cases show a not improper leniency to persons considered by others as ignorant, whose well meant but mistaken medical practice has caused death. Yet we adhere to the substance of the doctrine just stated.* 4. Other Homicides, indictable because of their carelessness, are where men cause death by casting missiles into a thronged street; 5 or by a reckless use of fire-arms, especially in an unlawful or dangerous sport. Or, to quote again from Archbold,7 “If a man being on a horse which he knows to be used to kick wilfully ride him amongst a crowd of persons, and the horse kick a man and kill him, the rider is guilty of murder although he had no malice against any particular person, nor any other intention than that of diverting himself by frightening the persons around him.8 But if a horse run away with his rider so that he has no control over him, and the horse kill or injure a man, the rider is dispunishable." 9 1 Rex v. Spiller, 5 Car. & P. 333; Rex v. Van Butchell, 3 Car. & P. 629; Rex v. Williamson, 3 Car. & P. 635; Rex v. Long, 4 Car. & P. 398, 423; Rex v. Webb, 1 Moody & R. 405, 2 Lewin, 196; Reg. v. Spilling, 2 Moody & R. 107. The Scotch law is the same. Alison Crim. Law, 116. 2 Park, J. in Rex v. Long, 4 Car. & P. 398, 410. And see Vol. II. § 664, 685, 691, 693. 53 Inst. 57; Foster, 263. And see Vol. II. § 691. 6 S. v. Vines, 93 N. C. 493, 53 Am. R. 466; Reg. v. Salmon, 6 Q. B. D. 79, 14 Cox C. C. 494; Robertson v. S. 2 Lea, 239, 31 Am. R. 602; Aiken v. S. 10 Tex. Ap. 610; S. v. Dugan, 1 Houst. Crim. 563; S. v. Hardie, 47 Iowa, 647, 29 Am. R. 496; Smith v. C. 100 Pa. 324. 7 Archb. New Crim. Pro. 9. 8 C. v. Thompson, 6 Mass. 134; Rice And see Vol. II. § 656 b, 693. r. S. 8 Misso. 561. 4 S. v. Hardister, 38 Ark. 605, 42 Am. R. 5; C. v. Pierce, 138 Mass. 165, 52 Am. R. 264; S. v. Reynolds, 42 Kan. 320, 16 Am. St. 483. 9 Gibbon v. Pepper, 2 Salk. 637; s. c. nom. Gibbons v. Pepper, 1 Ld. Raym. 38. This doctrine of negligence producing death is discussed by Mr. Bennett in 1 Ben. & H. Lead. Cas. 42 et seq. § 315. The Entire Criminal Law is pervaded by this doctrine of carelessness or negligence. It does not apply to all offences, but to all of a sort to admit of its application. Thus, — § 316. 1. Neglect of Legal Duty (Scour River). The bare neglect of a legal duty as, of the owner of a river to scour it, whereby the neighboring lands are overflowed - may render one indictable for a nuisance.1 In like manner, 2. Negligent Escape. An officer through whose negligence a prisoner in custody escapes, must answer for the neglect as a crime.2 And - 3. Master's Liability for Servant. In the words of Bayley, J.: "If a person employ a servant to use alum or any other ingredient the unrestrained use of which is noxious, and do not restrain him. in the use of it, such person is answerable if the servant use it to excess, because he did not apply the proper precaution against its misuse." Or, if a man's servant throws dirt into the street, the master may be indicted for the nuisance. And the directors of a gas company were rightly convicted of nuisance where the act was by their superintendent and engineer, authorized to manage the works; though themselves ignorant of the plan, which in fact was a departure from the one originally contemplated, and which they had no reason to believe discontinued.5 § 317. Why? In these and similar cases, as shown in another chapter, the law casts upon the master a duty of care in the employment of his servants, and a constant supervision. The real thing punishable, therefore, is his own carelessness." But No General Liability. Where this element does not aid the prosecution, the rule is clearly established that in the criminal 1 Rex v. Wharton, 12 Mod. 510; ante, § 216; post, § 433, 1075. 2 4 Bl. Com. 130; 1 Hale P. C. 600; 2 Hawk. P. C. Curw. ed. c. 19, § 28, 31; ante, § 218; post, § 321; Vol. II. § 1095, 1100. 8 Rex v. Dixon, 3 M. & S. 11, 14. One may be liable criminally for his agent's acts if he participates in them. C. v. Gillespie, 7 S. & R. 469, 477, 10 Am. D. 475. 264. Denman, C. J. observed: "It seems to me both common-sense and law that if persons for their own advantage employ servants to conduct works, they must be answerable for what is done by those servants." p. 299. And see post, § 1075, 1076; Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314. Ante, § 218-221. 7 See Reg. v. Lowe, 3 Car. & K. 123, 4 Cox C. C. 449, 7 Law Reporter, N. s. 375 Turberville v. Stampe, 1 Ld. Raym. and note, 1 Ben. & H. Lead. Cas. 49, C. v. Morgan, 107 Mass. 199; Mullins v Rex v. Medley, 6 Car. & P. 292. Collins, Law Rep. 9 Q. B. 292. law the principal is not answerable, as he is in civil jurisprudence, for the act of his servant or agent.1 § 318. 1. Vicious Beast at Large. If one having an ox which he knows is wont to gore, permits it to go at large and it kills a man, he is indictable; though Mr. East tells us there is doubt what his precise offence is. However, as it is agreed by all, such a person is at least guilty of a very great misdemeanor." 2 So, 66 2. Disorderly Conduct - about one's store, caused by selling liquor to be drank therein, has been adjudged to be criminal as well in the seller as in the purchasers.3 And 3. Setting Fire - to an out-house so near a dwelling-house as to endanger it, is, if the dwelling-house is burned, a burning of it.1 Again, § 319. Rumor in Libel. One who publishes a libel - a statute permitting him to show its truth in defence - cannot take advantage of his own negligence, and introduce evidence that there was floating in the community a rumor which he was so incautious as to believe and act upon. § 320. Limits of the Doctrine : 1. Particular Intent. To offences requiring a particular intent this doctrine of carelessness can have but a limited application if any. Thus, -- 2. Perjury is probably not committed by any mere reckless swearing to what the witness would, if more cautious, learn to be false; but the oath must be wilfully corrupt. 1 Miller v. Lockwood, 17 Pa 248; S. v. Dawson, 2 Bay, 360; Hern v. Nichols, Holt, 462; Rex v. Huggins, 2 Stra. 882, U. S. v. Halberstadt, Gilpin, 262, 270; Hipp v. S. 5 Blackf. 149, 33 Am. D. 463; S. v. Privett, 4 Jones, N. C. 100; Reg. v. Willmett, 3 Cox C. C. 281, 283; Thompson v. S. 45 Ind. 495; Hanson v. S. 43 Ind. 550; Anderson v. S. 39 Ind. 553; Anderson v. S. 22 Ohio St. 305; Louisville, &c. Rld v. Blair, 1 Tenn. Ch. 351, C. v. Mason, 12 Allen, 185; Reg. v. Ben nett, Bell C. C. 1; 1 East P. C. 331; S. v. Hayes, 67 Iowa, 27, Reg. v. Downer, 14 Cox C. C. 486; Chisholm v. Doulton, 22 Q. B. D. 736, 16 Cox C. C. 675. 21 East P. C. 265. 8 S. v. Burchinal, 4 Harring. Del. 572. Gage v. Shelton, 3 Rich. 242. So, 5 S. v. White, 7 Ire. 180. And see Graves v. S. 9 Ala. 447; Mitchell v. S. 7 Eng. 50, 54 Am. D. 253; Butler v. Mc Lellan, Ware, 219. 6 See 1 Hawk. P. C. Curw. ed. p. 429, § 1, 2; U. S. v. Shellmire, Bald. 370, 378; S. v. Cockran, 1 Bailey, 50; U. S. v. Babcock, 4 McLean, 113; C. v. Brady, 5 Gray, 78; U. S. v. Atkins, 1 Sprague, 558. Contra, C. v. Cornish, 6 Binn. 249. And see Jesse v. S. 20 Ga. 156, 169. See Vol. II. § 1045-1048. The New York Penal Code Commissioners proposed, "An unquali fied statement of that which one does not know to be true is equivalent to a statement of that which one believes to be false,"adding: "See, in support of the rule, P. v. McKinney, 3 Par. Cr. 510; Bennett v. Judson, 21 N. Y. 238; C. v. |