State v. Audette

• Decision Date: 26 September 1908
• Citation: 81 Vt. 400,70 A. 833
• Parties: STATE v. AUDETTE.
• Court: Vermont Supreme Court

70 A. 833

81 Vt. 400

STATE

v. AUDETTE.

Supreme Court of Vermont. Windsor.

Sept. 26, 1908.

Exceptions from Windsor County Court; George M. Powers, Judge.

Merrill C. Audette was convicted of adultery, and he brings exceptions. Sustained.

Edward R. Buck, State's Atty., for the State.

Herbert N. Blanchard and Herbert G. Tupper, for respondent.

MUNSON, J. The respondent has been adjudged guilty of adultery on an agreed statement of facts. The acts relied upon to sustain the charge were sanctioned by the marriage relation, as the respondent supposed. They were in fact the acts of an unmarried man with a married woman, for the supposed wife had a husband living when she espoused the respondent. So we are again called upon to consider the relation of mistakes of fact to criminal intent.

The state rests its claim, in part, upon the reasoning and decision in State v. Ackerly, 79 Vt. 69, 64 Atl. 450, 118 Am. St. Rep. 940. It was said there, upon a citation of previous decisions of this court, that when a statute makes an act penal, without reference to knowledge, ignorance of the fact is no defense. Among the cases referred to were some in which the act done, as the respondent understood it, was blameless. It is claimed by some text-writers, and held by some courts, that there can be no criminal liability without there having been some wrong in the act as it was understood to be, or some negligence in ascertaining the facts. But the view taken by this court in State v. Tomasi, 67 Vt. 312, 31 Atl. 780, and in State v. Ward, 75 Vt. 438, 56 Atl. 85, with reference to offenses purely statutory, accords with the main current of authority. Com. v. Boynton, 2 Allen (Mass.) 160; Com. v. Wentworth, 118 Mass. 441; Com. v. Finnegan, 124 Mass. 324; Farmer v. People, 77 Ill. 322; State v. Hartflel, 24 Wis. 60; Ulrich v. Com., 6 Bush (Ky.) 400; Crampton v. State, 37 Ark. 108; Fielding v. La-Grange, 104 Iowa, 530. 73 N. W. 1038. See, also, Com. v. Farren, 9 Allen (Mass.) 489; State v. Smith, 10 R. I. 258; Barnes v. State, 19 Conn. 398; Com. v. Weiss, 139 Pa. 247, 21 Atl. 10, 11 L. R. A. 530, 23 Am. St. Rep. 182; Jamison v. Burton, 43 Iowa, 282; McCutcheon v. State, 69 Ill. 601; State v. Cain, 9 W. Va. 559; State v. Heck, 23 Minn. 549.

In State v. Ackerly the charge was bigamy, and it was held that one having a consort living, who marries again within the time fixed in the exception, is not excused by an honest belief in the death of the consort, based upon reasonable grounds. The decision was not put especially upon the omission from the prohibitory clause of words pertaining to knowledge, but upon what seemed to be the plain intent of the enactment considered as a whole. The same view has been taken of similar statutes in other jurisdictions. Com. v. Mash, 7 Mete. (Mass.) 472; Com. v. Hayden, 163 Mass. 453, 40 N. E. 846, 28 L. R. A. 318, 47 Am. St. Rep. 468; Jones v. State, 67 Ala. 84. See Parnell v. State, 126 Ga. 103, 54 S. E. 804. It was said in the Ackerly Case, and said correctly, that the rule precluding the defense of ignorance of fact had been applied in cases of adultery. It should be noticed, however, that cases are sometimes cited in support of this statement that are not directly in point. In some of the cases the question was whether it was necessary for the prosecution to allege and prove knowledge. Com. v Elwell, 2 Mete. (Mass.) 190, 35 Am. Dec. 398; Fox v. State, 3 Tex. App. 329, 30 Am. Rep. 144; State v. Cody, 111 N. C. 725, 16 S. E. 408. In some cases the parties marrying had relied upon improper advisers as to the legal effect of steps taken by themselves or others. State v. Goodenow, 65 Me. 30. In other cases a decree dissolving the defendant's prior marriage had been annulled, because procured by his fraud. State v. Whitcomb, 52 Iowa, 85, 2 N. W. 970, 35 Am. Rep. 258; State v. Watson, 20 R. I. 354, 39 Atl. 193, 78 Am. St. Rep. 871. But in Com. v. Thompson, 11 Allen (Mass.) 23, 87 Am. Dec. 685, the defendant married a woman who had left her husband for good cause 11 years before, and had not seen or heard from him since, but who had read of the killing of a man who bore the full name of her husband and whom she believed to have been her husband, anil who told the defendant before she married him that she was a widow. The court submitted nothing to the jury as to the good faith of the respondent or the grounds of his belief, but instructed them that the facts testified to were not a legal justification. The Supreme Court sustained the conviction, saying that the seven-year provision did not apply, because it was the wife that left, instead of the husband, and making that fact conclusive against the defendant. But even in this extreme case it could be said that the defendant knew that there had been a marriage, and that there was a former husband to be accounted for.

In the case before us the respondent, 24 years of age, met at a party a woman 22 years of age, whom he supposed to be single. He afterwards corresponded with her, and saw her from time to time, and called upon her where she was living, and she visited his parents at their home. Through all this acquaintance she represented herself to be a single woman, and he believed her to be such; but he made no inquiries about her, and received no information regarding her history, except from herself. When the license was procured, she said it was her first marriage. The marriage occurred about five months after the acquaintance commenced. During all this time she had a husband living in...