M. Mistake of Fact or Law

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

M. Mistake of Fact or Law

Mistake of fact or law is not technically a defense; it is not an affirmative defense that must be established by the defendant by a preponderance of evidence. Rather it relates to the mental element of the offense, an element which, like any other, must be established by the prosecution beyond a reasonable doubt. The basic rule is fairly simple: a mistake, whether of fact or of law, which negates the existence of the mental element of the offense, will preclude conviction. See LaFave, 298-300 (5th ed. 2010). The Supreme Court of South Carolina has articulated the basic rule in much the same language: "A mistake of fact which negates the existence of the mental element of the offense, will preclude conviction." State v. Kelsey, 331 S.C. 50, 77, 502 S.E.2d 63, 77 (1998).

While the rule may be easy to state, its application proves more complicated. Sometimes the mistake must be reasonable as well as honest; sometimes the doctrine does not appear to apply at all, because the element of the offense to which the mistake would apply is one of strict liability, as in the case of mistake of age in a case of statutory rape. Finally, mistake of law must be distinguished from ignorance of law which, except in exceedingly rare circumstances, will not excuse criminal conduct. The doctrine of mistake of fact or law can be applied only if the particular mental elements of the case at hand are analyzed with care.

Whether a particular mistake is characterized as one of fact or one of law is often of no moment. The effect of the particular mistake on the particular mental element of the offense is what must be closely analyzed. To borrow the classic hornbook example of the person who takes someone else's umbrella in the mistaken belief that it is his own, (see LaFave, 300-01 (5th ed. 2010)), he is not guilty of larceny regardless of whether his mistake is one of fact or one of law. A possible factual mistake would be that he simply took another's umbrella which was similar in appearance to his own from a place near where he had left his own and took it in the good faith belief that it was indeed his own. A possible mistake of law would be that he erroneously concluded that on the basis of prior negotiations with the umbrella's owner that title to the particular umbrella had passed to him. Under neither scenario would he be guilty of larceny because in each he lacked the requisite intent to steal the property of another. On the other hand, were he ignorant of the law of larceny or ignorant of its application to something as trifling as an umbrella, and then knowingly took the umbrella of another, he could properly be convicted. This example illustrates the maxim, "ignorance of the law is no excuse.''

The law of mistake of fact has ancient underpinnings. According to Genesis 20:1-11 when Abraham and his wife Sarah went to Gerar, he was afraid that someone might kill him in order to take her. Consequently, he passed her off as his sister. When the king then took Sarah into his harem, God threatened the king with death for having another man's wife. The king pointed out to God his good faith mistake of fact in that he did not know she was anyone's wife. The defense apparently worked. Unfortunately, however, the transcript is somewhat ambiguous; another important reason for the king's escaping God's wrath may have been that the king had yet to sleep with her.

Several South Carolina cases dealing with prosecutions for receiving stolen property illustrate the doctrine of mistake of fact. A most important point here is that the statute, prior to a 1993 amendment, penalized "every person who shall buy or receive any such [stolen] goods or chattels or other property knowing the same to have been stolen shall be guilty . . . ." S.C. Code Ann. § 16-13-180 (1985) (emphasis added). In State v. Rountree, 80 S.C. 387, 61 S.E. 1072 (1908), the Court emphasized that it was knowledge, or at least belief, that the goods were in fact stolen that must be established. Even if the goods were in fact stolen, and even if the receiver of such goods had "knowledge of such facts as are sufficient to put a reasonably prudent man on inquiry . . . ." Id. at 391, 61 S.E. at 1073, he could not have been convicted unless it was established that he knew or believed that they were stolen. The point here is this: it is not enough that the reasonably prudent person or the ordinary reasonable man would have been put on notice that the goods were stolen. The statute required that the particular defendant know, or believe, that they were stolen.

It was a subjective, not an objective standard. The essential mental element of this offense was the defendant's knowledge of the character of the goods. Consequently, his mistake of fact about the character of the goods would have precluded conviction. That is so even if his mistake of fact was unreasonable; even if the ordinary reasonable person would have been put on notice as to the possibly stolen character of the goods, the defendant would not have been convicted unless he knew or believed that they were stolen. See, e.g., State v. Mills, 225 S.C. 151, 81 S.E.2d 285 (1954); State v. Hamilton, 166 S.C. 274, 164 S.E. 639 (1932).

Of course those facts and circumstances surrounding the...