Owen, G. Vernon, Jr.

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Criminal Law--Mistake of Law--Reliance upon Advice of Public Official

Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 2 | Issue 11950Criminal Law--Mistake of Law--Reliance uponAdvice of Public OfficialG. Vernon Owen Jr.Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Recent Decisions is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationG. Vernon Owen Jr., Criminal Law--Mistake of Law--Reliance upon Advice of Public Official, 2 W. Res. L. Rev. 91 (1950)Available at: https://scholarlycommons.law.case.edu/caselrev/vol2/iss1/10RECENT DECISIONStionary power of equity to vacate judgments obtained by fraud should notbe hampered by a rule of apparently little value, but rather should beexercised freely to obtain substantial justice in each particiular case.WI.LIAIv X. HAAsECRIINAL LAW - IISTAKE OF LAW- RELIANCEUPON ADVICE OF PUBLIC OFFICIALA Maryland statute provided: "It shall be unlawful for any person...to construct, erect or maintain... signs, or display advertising of any kindwhatsover,... any one or more of which is intended to aid in the solicitationor performance of marriages.' 1 The defendant, a minister who conductedwhat the court called a "marriage business," consulted the State's Attorneyabout the legality of erecting in front of his home a sign identifying thedefendant as a minister. The State's Attorney advised the defendant thaterection of the sign would not constitute a violation of the statute. Relyingon this advice, the defendant erected the sign. He was then indicted for aviolation of the statute. At the trial he attempted to introduce in evidencethe advice of the State's Attorney, but the court refused to allow this evi-dence. From a conviction, the defendant appealed. Though the judgmentwas reversed on other grounds, the court took the position that relianceupon the erroneous advice of the public official constituted a mistake oflaw and could not be shown as a defense in a criminal prosecution.2The principal of the common law that there can be no crime withouta criminal mind3 governs only so far as the public welfare and policy permitor demand.4 Thus, generally, neither ignorance of the law nor mistakeof law is allowed as a legal defense,; although if the crime charged involves(perjured testimony concerning true physical condition of claimant held extrinsicfraud where claimant feigned injury) with Phillips Petroleum Co. v. Jenkins 91F.2d 183 (8th Cir. 1937) (perjured testimony concerning true physical conditionof claimant held not to constitute extrinsic fraud where claimant actually sustainedminor injuries, the nature and extent of which were in issue in the prior proceeding).'MD. ANN. CODE art. 27, § 444A (Flack Supp. 1947). The constitutionality-ofthis statute was upheld in State v. Clay, 182 Md. 639, 35 A.2d 821 (1944).'Hopkins v. State, 69 A.2d 456 (Md. 1949). Lambert v. State, 69 A.2d (Md.1949), decided the same day, relied on the authority of the principal case.' "The doctrine of intent, as it prevails in the criminal law, is necessarily one of thefoundation principles of public justice. There is only one criterion by which theguilt of men is to be tested. It is whether the mind is criminal." BISHOP, COM-MENTARIES ON THE CRIMINAL LAW § 287 (5th ed. 1872)."HOLMES, THE COMMON LAw 49 (1881)."4 BL. COMMENTARIES *27. For an exhaustive history of the rule that ignoranceof the law is not an excuse, see Keedy, Ignorance and Mistake in the Criminal Law,22 HARv. L. REv. 75 (1908). Another exception to the requirement of the crimi-nal mind is constituted by those statutory crimes which require no intent whatso-ever. That this latter exception is also based on grounds of public policy, see Sayre,Public Welfare Offenses, 33 COL. L. REv. 56 (1933).19503WESTERN RESERVE LAW REVIEWno moral turpitude, both would tend to show the absence of a criminalmind. However, if a specific intent is required to constitute the crimecharged, ignorance or mistake of law may be shown to prove the absenceof the requisite intent.6It would seem that if the defendant in good faith seeks the advice of apublic official empowered by virtue of his office to give such advice, makesa full disclosure of the facts, and acts reasonably and in good faith upon theadvice given, he should be protected if the advice proves erroneous.7  Itwould seem that this protection should even extend to a defendant whoacts upon advice obtained from an official who in fact is not empowered togive the advice which the defendant sought, as long as the official is ap-parently invested with such power, and as long as his position bears areasonably close connection with the subject matter of the advice given sThe objection applicable to permitting ignorance of the law to operate asa defense -that the ignorance may be proved only subjectively by refer-ence to the accused's state of mind9 - is not fully applicable here, since thebasis for the mistake - the official's advice - may be proved objectively,without reference to the accused's state of mind. The difficulty of proofwould be no greater than that involved in proving mistake of fact, whichdoes operate as a defense.10 The majority of courts, however, have not'U.S. v. Murdock, 290 U.S. 389, 54 Sup. Ct. 223 (1933); Taylor v. State, 107 Ind.483 (1886). Ignorance or mistake of law has been held to constitute a defensewhere the statute is obscure, or is capable of more than one reasonable construction.Cutter v. State, 36 N.J.L. 125 (1873); Burns v. State, 123 Tex. Cr. R. 611, 61S.W.2d 512 (1933). However, this result seems unsound, for if a criminal statuteis truly obscure or indefinite, it should be held unconstitutional. If it is not obscureor indefinite, the square problem is presented whether ignorance or mistake of lawshould operate as a defense to a prosecution under the statute.'It has been suggested that reliance on the erroneous advice of counsel should alsooperate as a defense to a criminal prosecution. Perkins, Ignorance and Mistake inthe Criminal Law, 88 UNIV. OF PA. L. REv. 42 (1939). But the reasons for allow-ing the defense in the case of advice by a public official are more compelling be-cause confidence in the government is destroyed when citizens are punished for re-lying on the advice of public officers who are apparently authorized to give suchadvice. See Perkins, supra, at 43.'Hall and Seligman, Mistake of Law and Mens Rea, 8 UNIv. OF CHm. L. REv. 641,675-76 (1941). If the official's position has no connection with the subject matterof the advice it cannot be said that the accused acted reasonably on such advice.State v. Simmons, 143 N.C. 613, 56 S.E. 701 (1907) (defendant relied on theadvice of a court clerk that defendant had authority to carry a weapon); Jones v.State, 32 Tex. Cr. R. 533, 25 S.W. 124 (1894) (defendant relied on the adviceof the mayor that he could sell liquor on election day).'People v. O'Brien, 96 Cal. 171, 176, 31 Pac. 45, 47 (1892).10 "As a general rule it is stated that a mistake of fact will disprove a criminal charge"if the mistaken belief is (a) honestly entertained, (b) of such a nature that the con-duct would have been lawful had the facts been as they were reasonably supposedto be." Perkins, supra note 7, at 54. Gordon v. State, 52 Ala. 308 (1875). Butwhere intent is not a necessary element of the crime charged, the defense of ignorance[JueRECENT DECISIONSrecognized mistake of law induced by a public official's advice as a defense.1The result has been sharply criticized 2 and some courts have permitted thedefense.13Measures sometimes recommended or resorted to by courts for the pro-tection of defendants denied the defense 4 - executive clemency or the im-posing of a nominal fine only -are not equivalent to exoneration. Nordoes the possibility of a declaratory judgment afford sufficient protection,for the remedy is not always available,'8 and even if available, the time andor mistake of fact will not be available. Haynes v. State, 118 Tenn. 709, 105 S.W.251 (1907). Contra: Farrell v. State, 32 Ohio St. 456 (1877).'The Joseph, 8 Cranch 451 (U.S. 1874) (ambassador); Hoover v. State, 59 Ala.57 (1877) (probate judge); Broadfoot v. State, 28 Ala. App. 261, 182 So. 411(1938) (opinions of attorney general); Lindquist v. State, 213 Ark. 903, 213S.W.2d 895 (1948) (opinions of attorney general); State v. Huff, 89 Me. 521,36 Ad. 1000 (1897) (fish commissioner); State v. Goodenow, 65 Me. 30 (1876)(magistrate); Staley v. State, 89 Neb. 701, 131 N.W. 1028 (1911) (county at-torney); Pisar v. State, 56 Neb. 455, 76 N.W. 869 (1898) (license board);Hamilton v. People, 57 Barbour 625 (N.Y. 1870) (governor); State v. Simmons,143 N.C. 613, 56 S.E. 701 (1907) (court clerk); State v. Foster, 22 R. I. 163,46 Ad. 833 (1900) (state treasurer); Jones v. State, 32 Tex. Cr. R. 533, 25 S.W.124 (1894) (mayor). The same result has been reached where the reliance wason the advice of counsel. People v. McCalla, 63 Cal. App. 783, 220 Pac. 436(1923); Needham v. State, 55 Okla. Cr. R. 430, 32 P.2d 92 (1934); State v.Whitaker, 118 Ore. 656, 247 Pac. 1077 (1926); Commonwealth v. Hargreaves,50 Pa. D. & C. 641 (1944); Hunter v. State, 158 Tenn. 63, 128 S.W. 361 (1928).For an excellent decision to the effect that good faith reliance on the advice ofcounsel is a defense, see Long v. State, 65 A.2d 489 (Del. 1949).' Hall and Seligman, supra note 8, at 675. See also Von Hentig, The Doctrine ofMistake, A Study in Comparative Criminal Law, 16 UNIv. oF KAN. Cin L. Rnv.17, 31 (1949).'People v. Ferguson, 134 Cal. App. 41, 24 P.2d 695 (1933) (corporation com-mission); State v. White, 237 Mo. 208, 140 S.W. 896 (1911) (election judges);State v. Pearson, 97 N.C. 434, 1 S.E. 914 (1887) (election commission). Re-liance on the decision of the state supreme court, either construing or determiningthe validity of a statute, has been held to constitute a good defense. State v. O'Neil,147 Iowa 513, 126 N.W. 454 (1910); State v. Longino, 109 Miss. 125, 67 So. 902(1915); accord, Wilson v. Goodlin, 291 Ky. 144, 163 S.W.2d 309 (1942) (re-liance on decision of circuit court, where superior court had not rendered a decision).'4Hoover v. State, 59 Ala. 57, 60 (1877) (court denied defense but suggested thatthe case was one for executive clemency); Lindquist v. State, 213 Ark. 903, 904, 213S.W.2d 895 (1948) (appellate court approved of trial court's action in denyingdefense but imposing only nominal fine).' "The circumstances should entitle a defendant to a full exoneration as a matter ofright, rather than to something less, as a matter of grace." Long v. State, 65 A.2d489, 498 (Del. 1949)." The failure to obtain the state's consent in an action against it for a declaratoryjudgment may prevent such a proceeding. Purity Oats Co. v. State, 125 Kan. 558,264 Pac. 740 (1928). Or, the court may find an absence of a justiciable contro-versy. Adam v. Walla Walla, 196 Wash. 268, 82 P.2d 584 (1938). But seeDill v. Hamilton, 137 Neb. 723, 726, 291 N.W. 62, 64 (1940): "Plaintiffs seek-ing a declaratory judgment, are not required in advance to violate a penal statute1950194 WESTERN RESERVE LAW REVIEW [Juneexpense involved in obtaining a determination may in many cases renderthe remedy impractical.In the principal case, had the court allowed evidence of the advice ofthe State's Attorney to be admitted, it could have been found that thedefendant acted reasonably in relying on the official's advice, for the offi-cial was at least apparently empowered to give such advice and the statutedid not expressly prohibit the erection of a sign which simply identified thedefendant as being a minister. Therefore, the court should have submittedto the jury the questions of whether the defendant made a full disclosure offacts to the official, acted in good faith, and in fact did rely reasonably onthe official's advice.G. VERNON OWEN, JR.as a condition of having it construed or its validity determined." See generallyBORCHARD, DEcLARAToRY JUDGMENTS 1020 et seq. (2d ed. 1941).

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Criminal Law--Mistake of Law--Reliance upon Advice of Public Official

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