(dissenting).

I dissent. The court is refusing to consider the merits of a criminal appeal on technical grounds of exclusion of evidence, not even passed upon by the District Court. In so doing the text of the opinion does not state the major issue on the merits urged by appellant, much less measure the admissibility of the rejected testimony with reference to that issue.

To constitute the crime charged against appellant, her receipt of the checks must be “with intent to defraud the United States.” Intent is of the essence of the crime. Without it there is no fraud. Obviously, a criminal intent is a mental condition, provable, as other mental conditions, by the statements of the person charged with having it.

Appellant’s defense on the facts is that on the major fact of her mental condition of intent to defraud she had none, because she believed that she was not married during the whole period she was receiving the checks.

Appellant contends that she was duped into a marriage ceremony with Lane, who represented himself as an agent of the Federal Bureau of Investigation, during the course of a fraudulent scheme to acquire her property. The marriage was not consummated. Appellant discovered the plot and ended the affair. She believed the marriage a nullity because Lane’s fraud pervaded the entire transaction. It was to prove this continuing belief that the marriage was a nullity that the rejected offer of proof was made.

In this connection it should be noted that while the objection to the proof was that it was “self-serving, incompetent, irrelevant and immaterial,” the District Court ruled only that it was “self-serving.” 1

The majority opinion rejects, because self-serving, that portion of the offered proof that always after the ceremony appellant “had denied publicly having entered into any valid marriage with George V. Lane.” It is obvious that her intent to defraud would have been proved if the government had shown that intent by evidence of her repeated statements during the period she was receiving the' checks that she was married to Lane. It is equally obvious that her continuous statements that she was not married to the man she was living with are relevant and material to her belief and intent. Also such statements seem against the normal interest of the average woman, and the jury well could have inferred that the statements were against interest.

However, assuming that they were not against interest, they are not only relevant and material but competent to prove the absence of criminal intent. One may not only take the stand and testify to the absence of his criminal intent, but as to what his intent was. Wallace v. United States, 162 U.S. 466, 477 , 16 S.Ct. 859 , 40 L.Ed. 1039 ; Cummins v. United States, 8 Cir., 232 F. 844 . In addition to his direct testimony, he may introduce evidence which relates to the foundation of his belief, including conversations with third persons, in support of his statements. Miller v. United States, 10 Cir., 120 F.2d 968 ; Buchanan v. United States, 8 Cir., 233 F. 257, 259 . 2

The District Court not only erred in not leaving to the jury the question whether appellant’s denial of marriage to a man *254 with whom she was living is against her interest, but also in excluding testimony, even if serving her proof of lack of intent, showing a continuing belief that she was not married to him during the months in which she received the checks.

When considered with reference to the issue of appellant’s belief as to the validity of her marriage to Lane, all the other specific items of evidence show how she acquired such a belief and its reasonableness. It is obviously competent, relevant and material for that purpose. Only by the device of taking separate sentences out of the proposal as a whole do they appear irrelevant. The journey to the penitentiary should not be aided by such desiccating technicality .

The government urges that appellant cannot contend that she did not believe her marriage to be invalid, since that is a question of law of which s'he is charged with knowledge. The ancient maxim, “Ignorance of the law is no excuse,” is common parlance among all persons whether or not they are trained in the law. But its universal recognition does not necessarily provide grounds for its indiscriminate application to all cases, without consideration of the principle of law it expresses. Its basis may be designated as one of policy, but more specifically it is that such ignorance does not negate the criminal mind which is said to exist when a person consciously does acts which are made a crime. See Keedy “Ignorance and Mistake in the Criminal Law,” 22 Harv.L.Rev. 75.

In applying it, a clear distinction should be made between those crimes in which the requisite criminal intent arises from the doing of the act prohibited and those crimes in which the acts done are only unlawful if prompted by a specific criminal intent. Townsend v. United States, 68 App.D.C. 223 , 95 F.2d 352, 358 , certiorari denied 303 U.S. 664 , 58 S.Ct. 830 , 82 L.Ed. 1121 ; United States v. Three Railroad Cars, Fed.Cas.No.16,513; United States v. One Buick Coach Automobile, D.C., 34 F.2d 318 . It is apparent that no such distinction was made here by appellee.

In support of its position the government relies upon the Supreme Court’s decision in Reynolds v. United States, 98 U.S. 145, 167 , 25 L.Ed. 244 . There the defendant was charged with bigamy and it was held that despite an honest observance of religious duty to engage in polygamy, criminal intent was nonetheless present' from the conscious doing of the acts comprising the crime. But the very language of that decision, “Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed”, and thus committed with intent, points to the distinction adverted to which must be made between a crime of the type there involved and the one in which specific intent is a material element.

Where acts knowingly done only assume criminal import when accomplished by a criminal intent, the maxim does not apply, —at least insofar as it relates to mistake of law—for proof of that intent must be something more than the doing of the particular acts in the absence of some presumption. Laws v. United States, 10 Cir., 66 F.2d 870, 872 .

Here an additional distinction may be made to more clearly illustrate the principle involved. The source of appellant’s mistake in believing herself eligible was a mistake in the law of marriage and not in the law with which she is charged with violating. Such a mistake as far as her specific belief or intent are concerned operated precisely in the same manner in her mind as a mistake of fact would have; and where criminality turns on the state of mind accompanying the commission of given acts equivocal in themselves, such mistakes must be treated in the same manner. To hold otherwise when a particular innocent belief actually exists, would result in conviction of persons for crimes which by definition they did not commit.

Assume this alleged belief of appellant to have been the actual state of her mind when she received the checks. Is she to be denied her only defense and found guilty of defrauding the government? Would .the appellee contend that a woman had an intent to defraud the- United States if, believing herself to be the wife of a deceased veteran, she had filed a claim in good faith and received checks and it was subsequently found that the marriage she believed she -had entered was invalid? Yet this is the position urged here, for the mistaken belief in her status could not be offered as a defense and she could not deny that she had received compensation though not the widow of a veteran.

The appellant was entitled to testify as to her intent and to corroborate her testimony with other evidence pertinent to *255 the foundation of her belief, even though such belief was derived from a mistaken conclusion drawn from an application of the marriage laws to particular facts. It was for the jury to decide whether or not she did in fact believe herself eligible to receive compensation. The error of the trial court deprived her of her only defense. This denial was highly prejudicial and constitutes reversible error. Potter v. United States, 155 U.S. 438, 448 , 15 S.Ct. 144 , 39 L.Ed. 214 .

The judgment should be reversed and the cause remanded to the district court.

“Mr. Thurman: I want to object to the offer of proof of the defendant in this case, for the reason it is self-serving, incompetent, irrelevant and immaterial, and there is no basis for defense in this action.

The Court: I think that is true; self-serving.”

In the case of Shreve v. United States, 9 Cir., 103 F.2d 796 , cited in the majority-opinion, it was not contended the statements were admissible on the issue of intent, nor did the defendant take the stand.