learned from her husband's elder brother and from general report that he had gone down on a ship bound for America. On January 10th, 1887, believing herself a widow, she married again; and in December, 1887, Tolson reappeared. The Court for Crown Cases Reserved held that Mrs. Tolson was not guilty of bigamy, as she had no criminal intention; for when she re-married she honestly and on reasonable grounds believed that her husband was dead.1

If A. shoots at a man who is approaching him because he believes him to be his enemy B. and kills him, he is guilty of murder, although he subsequently discovers that the man he has killed is his friend C., or an entire stranger. Such a mistake of identity makes no difference in the quality and magnitude of the offence or in the amount of punishment which it deserves.

It is not always easy, however, for the prosecution to establish the existence of an intention in a man's mind. It is always for the jury to determine whether the prisoner had a criminal intention or not. They must take into their consideration all the surrounding facts and circumstances of the case; but they generally infer a man's intention from his acts and words. In some cases, however, the existence of circumstances which suggest a possible motive may be material. In all cases the absence of any motive whatever for the crime will tell in the prisoner's favour. Too much meaning must not be attached to a man's words, even though they amount to a threat to commit a crime; they may have been spoken in anger or excitement or under the influence of drink; they may be only words of coarse abuse. A man's acts are the best index to his intention. Such acts need not be criminal in themselves; they may be only the external "overt acts," which make manifest what is passing in the mind.

In inferring a man's intention from his acts the judge or jury derives assistance from the well-known rule of our law that "Every man must be presumed to know and to intend the natural and probable consequences of his act." This presumption is no doubt rebuttable in certain cases. Thus, if the accused can show that the consequence which has in fact resulted, though physically inevitable, was not in the particular case an obvious result of his act, or if he can 1 R. v. Tolson (1889), 23 Q. B. D. 168.

show that the result which has happened was probable only when certain circumstances co-existed and that he was not aware of the existence of such circumstances, then in both these cases the presumption is rebutted, and he cannot be held to have intended that result. Again, if he can satisfy the jury that the possibility of such a result never occurred to his mind, then-although such heedlessness will probably render him liable to a charge of criminal negligence 1—he cannot be held to have intended that result. But if he was aware that certain consequences might follow the act which he contemplated doing, and yet deliberately proceeded to do the act, he must be taken to have intended those consequences to follow, even though he may have hoped that they would not.2

3

Again, the presumption will be rebutted by proof that the accused at the time he committed the act had not a mind capable of forming an intention, e.g., that he was mad, or asleep, or dead drunk, or that he acted under coercion which he could not resist, or under a bonâ fide mistake of fact, which put an entirely different complexion on his act. In all these cases the mind of the accused does not "go with his act;" but the burden of proving such facts as somnambulism, lunacy, duress or mistake lies on the accused. For the law presumes that every one of full age knows what he is doing, knows right from wrong, and knows (and therefore intends) the natural consequences of his act.

Thus, where the defendant was indicted for creating a nuisance and it was contended on his behalf that, to render him liable, the prosecution must establish one of two things-either that his object was to create a nuisance, or that the nuisance was the necessary and inevitable result of his act-Littledale, J., answered, "If it be the probable consequence of his act, he is answerable, as if it were his actual object. If the experience of mankind must lead any one to expect the result, he will be answerable for it." 4

"If a trader make a deed which necessarily has the effect of defeating

1 See post, p. 119.

2 This is what Bentham called "Indirect intention."

8 Per cur. in R. v. Meade, [1909] 1 K. B. at p. 899.

R. v. Moore (1832), 3 B. & Ad. 181, 188; cited by Blackburn, J., in Haigh v. Town Council of Sheffield (1874), L. R. 10 Q. B. at p. 107.

or delaying his creditors, he must be taken to have made the deed with that intent."1

There are some cases, however, in which the terms of a statute expressly make a particular act criminal, and throw upon the accused the onus of proving that his intent was innocent. Thus, it is a misdemeanour for a bankrupt not to deliver up all his property to his trustee, "unless the jury is satisfied that he had no intent to defraud;" and the burden of so satisfying the jury rests upon the bankrupt."

A chemist by mistake mixes a poisonous drug in the medicine which he is preparing for a sick child. The child's mother administers to it that medicine, believing it will do the child good. She intends to administer that medicine; but she does not intend to poison her child, although that in this case is the natural and necessary consequence of her act.

A man climbs up into a railway signal box and pulls a lever. The natural and necessary consequence of such an act at such a time is that an express train is diverted into a siding and comes violently into collision with a goods train, the guard of which is killed. The man was not aware that this would be the result of his act, so it cannot be said that he intended to cause the collision; yet he is guilty of manslaughter.

On the other hand, there are cases in which the words of a statute are so strong as to render criminal any act in contravention of it, though done without any guilty knowledge and without any criminal intent. "We have had quoted the maxim that in every criminal offence there must be a guilty mind; but I do not think that maxim has so wide an application as it is sometimes considered to have. In old time, and as applicable to the common law or to earlier statutes, the maxim may have been of general application; but a difference has arisen owing to the greater precision of modern statutes," which renders it "necessary to look at the object of each Act that is under consideration to see whether and how far mens rea is of the essence of the offence created." 3 If, then, the words of a modern statute amount to an absolute prohibition of a certain act without any reference to the state of mind of the actor, mens rea is not an essential ingredient in the offence; and in such a case any inquiry as to the intent which actuated the accused would be immaterial -except perhaps with a view to mitigation of punishment.

1 Per cur. in Graham v. Chapman (1852), 12 C. B. at p. 103.

The Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 11; R. v. Thomas (1869), 11

Cox, 535; R. v. Bolus (1870), 23 L. T. 339.

3 Per Stephen, J., in Cundy v. Le Cocq (1884), 13 Q. B. D. at p. 210.

The defendants assaulted a man who, though in plain clothes, was a police officer engaged in the execution of his duty. They were not aware that he was so engaged; nevertheless, they were convicted of assaulting a police officer in the execution of his duty. The act which they did was wrong in itself, and the fact that they did not know that the police officer whom they assaulted was then engaged in the execution of his duty afforded them no defence.1

By 24 & 25 Vict. c. 100, s. 55, it is a crime for any one to "unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father." The defendant did take an unmarried girl under sixteen out of the possession and against the will of her father. The girl assured him that she was over sixteen; she looked that age; and the defendant bond fide believed that she was above sixteen years of age. But it was held that this belief afforded him no defence, as she was in fact under that age. The wrongdoer in such a case acts at his peril.2

By 8 & 9 Vict. c. 100, s. 44, it is a misdemeanour for any person to receive two or more lunatics into a house not duly licensed under the Act, and not being a duly registered hospital or an asylum. The defendant, Mrs. Bishop, did receive several patients who were lunatics into her private house, which was not duly licensed; but the jury found that she bona fide and on reasonable grounds believed that they were not lunatics. It was held by the Court for Crown Cases Reserved that such belief was immaterial, and that she was rightly convicted.3

By section 13 of the Licensing Act, 1872,4 "if any licensed person sells any intoxicating liquor to any drunken person," he commits an offence punishable summarily. The defendant sold intoxicating liquor to a drunken person who had given no indication of intoxication, and without being aware that the person so served was drunk. It was held by the Divisional Court that knowledge of the condition of the person served with liquor was not necessary to constitute an offence under this section. Stephen, J., said, "I am of opinion that the words of the section amount to an absolute prohibition of the sale of liquor to a drunken person, and that the existence of a bona fide mistake as to the condition of the person served is not an answer to the charge, but is a matter only for mitigation of the penalties that may be imposed." 5

6

By the Fertilisers and Feeding Stuffs Act, 1893, if a person, who sells any article for use as a fertiliser of the soil or as food for cattle, "causes or permits any invoice or description of the article sold by him to be false in any material particular to the prejudice of the purchaser," he is liable on summary conviction to a fine of £20. The defendants had described certain

1 R. v. Forbes and Webb (1865), 10 Cox, 362.

2 R. v. Prince (1875), L. R. 2 C. C. R. 154. Contrast this decision with those in R. v. Tolson (1889), 23 Q. B. D. 168; ante, p. 115; R. v. Green (1862), 3 F. & F. 274; and R. v. Hibbert (1869), L. R. 1 C. C. R. 184.

8 R. v. Bishop (1880), 5 Q. B. D. 259.

4 35 & 36 Vict. c. 94.

5 Cundy v. Le Cocq (1881), 13 Q. B. D. 207, 209.

6 56 & 57 Vict. c. 56, s. 3, sub-s. 1 (b).

food sold by them as containing 58 per cent. of oil albumenoids, whereas it in fact contained only 51 per cent. Their analyst had certified to them that it contained over 60 per cent., and they honestly believed this to be the correct percentage when they sold it. The justices dismissed the summons on the ground that there was no evidence of guilty knowledge on the part of the defendants. But on a case being stated the Divisional Court held that guilty knowledge was not a constituent element of the offence created by the Act, and that the defendants ought to be convicted.1 But the law is not always quite so strict. By section 16, sub-s. 2, of the Licensing Act, 1872,2 "if any licensed person supplies any liquor or refreshment. . . to any constable on duty, he shall be liable to a penalty...." In Sherras v. De Rutzen, the accused did supply liquor to a constable on duty; but he bona fide believed that the constable was off duty, and the latter had in fact removed his armlet before entering the public-house. The accused was convicted, and his conviction was upheld on appeal to Quarter Sessions; but this Court consented to state a case for the opinion of the Divisional Court, and the conviction was quashed. Day, J., expressed the opinion "that it would be straining the law to say that this publican, acting as he did in the bona fide belief that the constable was off duty, and having reasonable grounds for that belief, was nevertheless guilty of an offence against the section, for which he was liable both to a penalty and to have his licence indorsed."

3

Again, where intoxicating liquor was knowingly sold to a child under fourteen in a bottle neither corked nor sealed, as is required by section 2 of the Intoxicating Liquors (Sale to Children) Act, 1901, by a servant of a licensed person contrary to the express orders and without the knowledge of his master, it was held that the master, who at the time of the sale was himself in another part of the bar, which was crowded, could not be con. victed of "knowingly allowing" such sale.+

So where the appellant was charged under section 27 of the Sale of Food and Drugs Act, 1875,5 with giving a false warranty in writing to a purchaser in respect of an article of food sold by him, which warranty he did not know and had no reason to believe to be false, it was held that he was not liable to be convicted. "Where it is sought to be shown that the Legislature means to punish without requiring proof of moral guilt, such an intention must be very clearly expressed."7

(2) Criminal Negligence.

A guilty mind is, as we have seen, in general essential to the legal conception of a crime. It may exist not only where

1 Laird v, Dobell, [1906] 1 K. B. 131; and see the Destructive Insects and Pests Order, June 18th, 1908, made under the Acts of 1877 and 1907 (40 & 41 Vict. c. 68; 7 Edw. VII. c. 4), in Statutory Rules and Orders, 1908, p. 306.

235 & 36 Vict. c. 94.

8 [1895] 1 Q. B. 918, 921.

4

Emary v. Nolloth, [1903] 2 K. B. 264.

5 38 & 39 Vict. c. 63.

Derbyshire v. Houliston, [1897] 1 Q. B. 772.

Per Hawkins, J., ib. at p. 776.