Notes & Questions 

1.    This case turned on the question of whether the defendant acted "maliciously" under the meaning of the statute: The trial court instructed the jury that "'[w]icked' is as good a definition as any other which you would get" (Paragraph 28). The appellate court, as we just saw, disagreed with this interpretation of malice under the statute and overturned the conviction. 

Historically, "malice aforethought" was a required element for the most serious homicide convictions. But the bounds of what constituted maliciousness have evolved and shifted over time and remain far from clear. The following passage provides some history:

[Around the thirteenth century] "malice aforethought". . . seemed to be used to distinguish homicides that were felonious from those that were excusable.... In the sixteenth century, malice appears to have been associated with the idea of a premeditated killing, especially one committed by lying-in-wait . . . . Because a killing with malice required planning, a sudden killing such as one occurring because of provocation, was not committed with malice. Although the term malice aforethought came to be used in the sense of significant premeditation, positive proof of planning activity was not always required. If no motive was obvious, and the killing was not in response to provocation, the law assumed that the killer had a concealed motive. This assumption led to the development of the concepts of "express" and "implied" malice. . . . By the nineteenth century . . . it had become clear that malice generally would be established by proof of intent to kill or intent to inflict serious injury, or "wanton disregard" of the risk to human life. As the meaning of malice moved away from premeditated killing, the role of provocation also changed, eventually being recognized as a form of mitigation in an intentional killing.

Suzanne Mounts, Malice Aforethought in California: A History of Legislative Abdication and Judicial Vacillation, 33 U.S.F. L. Rev. 313, 319-20 (1999).

In 1872, California codified these common law understandings of malice by using it to distinguish murder from manslaughter and defining it in section 188 as follows: "malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." Id. at 324. 

2.    Malice remains a key element that distinguishes the highest degree of murder from lesser convictions. To what extent do you now feel comfortable with your understanding of malice?

Recall from Becker that California criminalizes "killing...with malice aforethought" (CPC section 187). Does the statute provide sufficient notice? Make an argument for why or why not.

3.    Consider the four culpable mental states outlined by the MPC (See  Note 4.3 below). Which MPC mental state was the defendant in Regina v. Cunningham guilty of? Explain your answer with reference to the facts from the case. 

Do you think we have a better framework for blameworthiness in the MPC than the common law understanding of "malice"?

4.    Consider the following hypothetical in light of the above discussion of intent/malice:

D wants to play a prank on his teacher so he bakes her a tray of marijuana-infused brownies and brings them to school for her birthday. They are delicious, so she quickly eats the entire tray whereupon she experiences acute dizziness, heart palpitations, nausea and panic, necessitating a trip to the emergency room.

D is charged with violating Section 23 of the criminal code: “Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony . . .”

Applying the holding from Regina v. Cunningham and your understanding of statutory analysis, which of the following arguments will help in D’s defense and why?

1. The teacher wasn’t seriously harmed.
2. I only used a small amount of pot, and I’ve never heard of someone dying or being permanently injured from ingesting pot brownies.
3. Marijuana is legal in my state and I only intended to play a joke, not to do harm
4. Who eats a full tray of brownies in one sitting? It’s unforeseeable!

REGINA v. FAULKNER.
Crown Case Reserved, Ireland. 1877.
[Reported 13 Cox C. C. 550]

Case reserved by Lawson, J., at the Cork Summer Assizes, 1876.
The prisoner was indicted for setting fire to the ship " Zemindar," on the high seas, on the 26th dav of June, 1876. The indictment was as follows:

"That Robert Faulkner, on the 26th day of June, 1876, onb oard a certain ship called the ' Zemindar,' the property of Sandback, Tenne, and Co., on a certain voyage on the high seas, then being on the high seas, feloniously, unlawfully, and maliciously, did set fire to the said ship ' with intent thereby to prejudice the said ' (these words were struck out at the trial by the learned judge, and the following words inserted, 'called the "Zemindar," the property' of) Sandback, Tenne, and Co., and that the said Robert Faulkner, on the day and year aforesaid, on board a certain ship called the ' Zemindar,' being the property of Sandback, Parker, and other, on a certain voyage on the high seas, then being upon the high seas, felonioush, unlawfully, and maliciously, did set fire to the said ship, with intent thereby to prejudice the said Sandback, Parker, and other, the owners of certain goods and chattels then laden, and being on board said ship."

 It was proved that the "Zemindar" was on her voyage home with a cargo of rum, sugar, and cotton, worth £50,000. That the prisoner was a seaman on board, that he went into the forecastle hold, opened the sliding door in the bulk-head, and so got into the hold where the rum was stored ; he had no business there, and no authority to go there, and went for the purpose of stealing some rum ; that he bored a hole in the cask with a gimlet; that the rum ran out ; that when trying to put a spile in the hole out of which the rum was running he had a lighted match in his hand ; that the rum caught fire ; that the prisoner himself was burned on the arms and neck ; and that the ship caught fire and was completely destroyed.

At the close of the case for the Crown, counsel for the prisoner asked for a direction of an acquittal on the ground that on the facts proved the indictment was not sustained, nor the allegation that the prisoner had unlawfully and maliciously set fire to the ship proved. The Crown contended that inasmuch as the prisoner was at the time engaged in the commission of a felony, the indictment was sustained, and the allegation of the intent was immaterial.

At the second hearing of the case, before the Court for Crown Cases Reserved, the learned judge made the addition of the following paragraph to the case stated by him for the court.

"It was conceded that the prisoner had no actual intention of burning the vessel, and I was not asked to leave any question to the jury as to the prisoner's knowing the probable consequences of his act, or as to his reckless conduct."

The learned judge told the jury that although the prisoner had no actual intention of burning the vessel, still if they found he was engaged in stealing the rum, and that the fire took place in the manner above stated, they ought to find him guilty. The jury found the prisoner guilty on both counts, and he was sentenced to seven years' penal servitude. The question for the court was whether the direction of the learned judge was right; if not, the conviction should be quashed.

* * * *

Lush, J. I also think that on this finding of the jury we have no alternative but to hold that the conviction must be quashed. The word " maliciously " means an act done either actually or constructively with a malicious intention. The jury might have found that he did intend actually to break the window, or constructively to do so, as that he knew that the stone might probably break it when he threw it. But they have not so found.

Cleasbt, B., concurred. Conviction quashed.

****

Palles, C. B. I concur in the opinion of the majority of the court, and I do so for the reasons already stated by my brother Fitzgerald. I agree with my brother Keogh that from the facts proved the inference might have been legitimately drawn that the setting fire to the ship was malicious within the meaning of the 24 & 25 Vict. c. 97. I am of opinion that that inference was one of fact for the jury, and not a conclusion of law at which we can arrive upon the case before us.

* * *

Conviction quashed.

MPC SECTION 2.02. GENERAL REQUIREMENTS OF CULPABILITY

(1)    Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

(2)    Kinds of Culpability Defined.

(a)    Purposely. A person acts purposely with respect to a material element of an offense when:

(i)    if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

(ii)   if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(b)   Knowingly. A person acts knowingly with respect to a material element of an offense when:

(i)   if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

(ii)  if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c)    Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

(d)    Negligently. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

(3)    Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

(4)    Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.

(5)    Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.

(6)    Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.

(7)    Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.

(8)    Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.

(9)    Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides.

(10) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on whether the offense is committed purposely, knowingly, recklessly or negligently, its grade or degree shall be the lowest for which the determinative kind of culpability is established with respect to any material element of the offense.

MPC SECTION 2.03. GENERAL REQUIREMENTS OF CULPABILITY

Causal Relationship Between Conduct and Result; Divergence Between Result Designed or Contemplated and Actual Result or Between Probable and Actual Result.

(1) Conduct is the cause of a result when:

(a) it is an antecedent but for which the result in question would not have occurred; and

(b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense.

(2) When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless:

(a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or

(b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense.

(3) When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless:

(a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or

(b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense.

Consider the following problems in light of the the language on culpability in the MPC 

MPC 2.02 Problems

1. D wants to kill V, so D drives a car into V at a very high speed. At the time, V is holding their infant X, whom D loves and does not want to kill. Both V and X die.
   
   With regard to V, what mens rea did D possess under 2.02?
   
   With regard to X, what mens rea did D possess under 2.02?
   
   
2. D hates the house next door because it blocks the sunlight. She decides to burn it down, knowing that her neighbor is inside. D knows there is a good chance neighbor might die, so she tosses salt over her shoulder immediately before torching the house.
   
   If D genuinely believed the salt would completely protect neighbor from harm, but neighbor nonetheless dies, with what level of mens rea culpability did D kill neighbor? 
   
   If D was not sure whether the “salt over shoulder” trick would protect neighbor, but was optimistic that it would, with what level of mens rea culpability did D kill neighbor?
   

Notes & Questions 

1. The defense's case for Blurton rested on what is called a "failure of proof" argument. If Blurton genuinely believed the assistant manager's story, it would mean that the state failed to prove that he had the requisite mens rea. This kind of argument is helpful to the defense because the burden to prove each element of a crime beyond a reasonable doubt rests with the prosecution. Could an "insanity defense" or a showing of diminished mental capacity have also worked for Blurton? What evidence would he have needed to make such claims? Which defense (failure-of-proof vs. insanity vs. diminished capacity) strikes you as the best argument in Blurton's favor? Why? 
   
   
2. On a different note: Why should we let Blurton off the hook? Couldn't Blurton's stupidity in believing the Navy Seal-mastermind story easily have resulted in serious harm? What justifications for punishment might be relevant to consider as you answer this question? 
   
   
3. You are the prosecutor in this case. What, if anything, is the mastermind-assistant manager guilty of? 
   
   
4. Even as we continue to apply the legal framework of mens rea, it is important to keep in mind that these legal classifications rest on somewhat antiquated understandings of the human mind. The possibility that new developments in neuroscience might raise concerns about how criminal law understands volition and intent is actually a hotly debated issue within legal scholarship. Consider the following passage, for example: 

Although the Model Penal Code brought much-needed clarity to the concepts of actus reus and mens rea, it has by no means solved the conceptual problems of what kinds of things should fall into the categories of volition, intent, and choice. For one thing, . . . both conscious, voluntary conduct (actus reus) and the various levels of intent (mens rea) require a reasoning process relating what the person perceives to be reality with the situation within which he must act (or not) and how. This reasoning, or imaginative process, may be greatly altered if the brain is not functioning correctly . . . . In other words, the law attempts to separate categories that are not really separable.

[T]he legal meaning of choice, intent, and volition originated, not from empirical studies about human brains and behavior, but from ungrounded beliefs about human nature. Despite a paradigm shift in understanding human behavior that has occurred through new developments in neurobiology, the law still operates on outdated nineteenth century assumptions about how human beings function. As a result, the categories into which some of these human actions belong are porous and indeterminate. The separate legal categories of actus reus and mens rea and their meanings reflect outdated assumptions about human nature and the objectives of criminal justice.

Erica Beecher-Monas and Edgar Garcia-Rill, Actus Reus, Mens Rea, and Brain Science: What Do Volition and Intent Really Mean? Kentucky Law Journal, 106: 265-314, 268 (2017). Entire article available at: https://uknowledge.uky.edu/klj/vol106/iss2/5

RABINOWITZ, Justice.

1. INTRODUCTION

In this petition we are called upon to decide whether due process under Alaska's Constitution requires that a criminal offense be predicated on proof of more than just simple civil negligence.

1. FACTS AND PROCEEDINGS

Respondent's conviction stems from the Exxon Valdez incident. On March 24, 1989, Captain Joseph Hazelwood ran his ship aground off Bligh Reef and reported he was "evidently leaking some oil." Eventually, eleven million gallons poured into Prince William Sound. A jury subsequently convicted Hazelwood of negligent discharge of oil.

****

[T]he Court of Appeals … reversed Hazelwood's conviction [because] Hazelwood should have been tried under a criminal negligence theory rather than the civil negligence standard of culpability. The court ruled that criminal convictions may be predicated on findings of simple or ordinary negligence only when the offense involves a heavily regulated commercial activity.  Hazelwood v. State, 912 P.2d 1266, 1279 (Alaska App. 1996). Since the application of former AS 46.03.740 is not restricted to heavily regulated industries, the Court of Appeals concluded that Hazelwood's conviction under a civil negligence standard was a denial of due process. We granted the state's petition for hearing and now reverse.

1. DISCUSSION

The difference between criminal and civil negligence although not major is distinct. Under both standards, a person acts "negligently" when he fails to perceive a substantial and unjustifiable risk that a particular result will occur.

The two tests part ways in their descriptions of the relevant unobserved risk. Under ordinary negligence, "the risk must be of such a nature and degree that the failure to perceive it constitutes a deviation from the standard of care that a reasonable person would observe in the situation." Id. at 1278.  Criminal negligence requires a greater risk. This standard is met only when the risk is

of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Criminal negligence is something more than the slight degree of negligence necessary to support a civil action for damages and is negligence of a degree so gross as to be deserving of punishment.

 912 P.2d at 1278-79 n.16 (emphasis added).

In essence, then, the criminal negligence standard requires the jury to find negligence so gross as to merit not just damages but also punishment. It does not spill over into recklessness; there is still no requirement that the defendant actually be aware of the- risk of harm. However, criminal negligence does require a more culpable mental state than simple, ordinary negligence. ¹

 The statute under which Hazelwood was convicted provides in relevant part:

A person may not discharge, cause to be discharged, or permit the discharge of petroleum . . . into, or upon the waters or land of the state except in quantities, and at times and locations or under circumstances and conditions as the department may by regulation permit . . . .

Former AS 46.03.790(a) (current AS 46.03.740). At the time of the alleged crime, a person who "negligently" violated this provision was guilty of a class B misdemeanor. Former AS 46.03.790(a). ²

The Court of Appeals concluded that the unadorned use of the word "negligently" created an ambiguity as to whether the statute rests on criminal or ordinary negligence. Relying on its past decisions, the court held that criminal liability may be imposed on the basis of simple or ordinary negligence "only for offenses dealing with heavily regulated activities for which permits or licenses are required." Hazelwood, 912 P.2d at 1279 (quoting Cole v. State, 828 P.2d 175, 178 (Alaska App. 1992). ³

In defense of the Court of Appeal's ruling, Hazelwood presents two lines of argument. First, he contends the guarantee of due process demands that criminal penalties be predicated on more than just ordinary negligence. He reads our precedents as requiring a mens rea of at least reckless culpability for criminal offenses. Second, Hazelwood maintains that the statute under which he was convicted itself incorporates the criminal negligence standard. We address each argument in turn.

1. Due Process and a Civil Negligence Mens Rea Standard
2. Alaska law

Hazelwood grounds his due process claim in our decisions in Hentzner v. State, 613 P.2d 821 (Alaska 1980); Kimoktoak v. State, 584 P.2d 25 (Alaska 1978); Alex v. State, 484 P.2d 677 (Alaska 1971); and Speidel v. State, 460 P.2d 77 (Alaska 1969). He contends that in each of these cases we required a showing of recklessness, or subjective awareness of wrongdoing, in order to sustain the criminal conviction.

These decisions stand for a common proposition: that criminal convictions must be predicated on criminal intent. ⁴ In other words, there must be some level of mental culpability on the part of the defendant. However, this principle does not preclude a civil negligence standard. What it does mean is that we will generally read into a criminal statute some level of mens rea, "as opposed to strict criminal liability." Alex, 484 P.2d at 681 (emphasis added); see also Kimoktoak, 584 P.2d at 29. It is strict liability, and not the negligence standard, which "is an exception to the rule which requires criminal intent." State v. Rice, 626 P.2d 104, 108 (Alaska 1981). The requirement of criminal intent does "not emphasize a specific awareness of wrongfulness." Alex, 484 P.2d at 681. ⁵

The point is illustrated by State v. Guest, 583 P.2d 836 (Alaska 1978), and Rice, 626 P.2d at 104. In each case, we upheld the imposition of criminal sanctions on the basis of simple, ordinary negligence. Guest approved the Superior Court's instruction that the defendant was not guilty of statutory rape if he reasonably believed his victim was of consenting age. In effect, we sustained prosecution on charges that the defendant was negligent as to the victim's age. See Guest, 583 P.2d at 839 n.5 (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 47, at 356-57 (1972)). Similarly, Rice read into a criminal prohibition on transportation of illegally taken game a requirement that the defendant was at least negligent as to the fact the game was illegally taken. See Rice, 626 P.2d at 110. In both cases, a mens rea of simple or ordinary negligence was made the basis of the offense.

2. Hazelwood's conduct/circumstances distinction

Hazelwood distinguishes Rice and Guest on the ground that in each the negligence standard was applied only to the circumstances of the crime, not the underlying conduct. Due process, he maintains, still requires the government to demonstrate there was "volitional conduct of the prohibited act."

Hazelwood's conduct/circumstances distinction is untenable. As an initial matter, we note that nowhere do our due process precedents differentiate between the minimum mens rea for circumstances and conduct. Nor is there any reason to do so. In many cases, it is only the circumstances of the offense that render it objectionable. No one would suggest, for example, that Rice's transportation of game would still have been criminally sanctionable had it not been taken illegally. The statute proscribes the underlying conduct only when the relevant circumstance is present. The same was true in Guest. Indeed, in both cases, had we not applied a negligence standard to the circumstance of the offense, it would have included no mens rea element whatsoever.

We think Hazelwood confuses volition with intent. While many crimes do not require that their underlying action be carried out with a guilty mind, it is always a defense to prosecution that the conduct was not voluntary. In every case, the alleged infraction must have been the product of a free will, and not coercion, duress, or mental illness. Had terrorists boarded the Exxon Valdez, for example, and demanded that Hazelwood run his vessel onto Bligh Reef, the fact that he did so even with knowledge and purpose would be irrelevant. He could defend on the basis that his act was not voluntary, and thus could not be properly attributed to him. This is not the case here. Hazelwood faced no compulsion that would excuse his conduct at the time the Valdez rammed into Bligh Reef. While there is a voluntariness element to every criminal offense, because Hazelwood's commissions were his and his alone, this prerequisite is satisfied here. ⁶

 As noted above, it is firmly established in our jurisprudence that a mental state of simple or ordinary negligence can support a criminal conviction. Further decisions reveal, however, that in some situations more will be required, and sometimes less.  Speidel, 460 P.2d at 80, found a denial of due process where the defendant had been convicted of "simple neglectful or negligent failure to return a rented automobile." In that case, we insisted on at least a finding of reckless culpability in order for criminal sanctions to be imposed.

On the other hand, elsewhere we have allowed the mens rea element to be dispensed with entirely. We have allowed strict liability to be read into "public welfare offenses." See. e.g., Rice, 626 P.2d at 107. These public welfare offenses are proscriptions which "heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare." Morissette v. United States, 342 U.S. 246, 254, 96 L. Ed. 288, 72 S. Ct. 240 (1952). See also Haxforth v. Idaho, 117 Idaho 189, 786 P.2d 580, 582 (Idaho App. 1990) (four-part test). As a corollary, a mens rea requirement is imputed only when a serious penalty attaches. See Guest, 583 P.2d at 838; Kimoktoak, 584 P.2d at 29; and Speidel, 460 P.2d at 80; see also Michigan v. Olson, 181 Mich. App. 348, 448 N.W.2d 845, 847 (Mich. App. 1989). Also, no mental element will be required when a statute provides "cleat legislative intent to the contrary." Rice, 626 P.2d at 108; see also Lambert v. California, 355 U.S. 225, 228, 2 L. Ed. 2d 228, 78 S. Ct. 240 (1957) ("There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition."); cf.  Gregory v. State, 717 P.2d 428, 430 (Alaska App. 1986).

An explanation of why the simple or ordinary negligence standard is nevertheless appropriate in this case requires consideration of the reasons that variable levels of mens rea will satisfy due process for different offenses.

3. The strict liability tradition [Court’s discussion of Strict Liability omitted]

***

1. CONCLUSION

The Superior Court's adoption of an ordinary negligence standard was not erroneous. We therefore REVERSE the holding of the Court of Appeals on this issue. The case is remanded to the Court of Appeals for consideration of any unresolved issues originally raised by Hazelwood on appeal. ²²

COMPTON, Chief Justice, dissenting.

1. INTRODUCTION

I am not persuaded that a criminal offense can be predicated on proof of civil negligence. In my view, neither existing precedent nor public policy supports such a result. I therefore dissent.

1. DISCUSSION
2. The Ambiguity as to the [**35]  Required Mens Rea under Former AS 46.03.790(a) Mandates Application of the Criminal Negligence Standard.

The court does not deny that there is an ambiguity as to the mens rea required for conviction under former AS 46.03.790(a). ¹ "Ambiguities in criminal statutes must be narrowly read and construed strictly against the government." State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985), opinion adopted by State v. Andrews, 723 P.2d 85, 86 (Alaska 1986); see also Wells v. State, 706 P.2d 711, 713 (Alaska App. 1985) ("It is well established that, in accordance with the rule of lenity, ambiguities in penal statutes must be resolved in favor of the accused."); see also Manderson v. State, 655 P.2d 1320, 1323 (Alaska App. 1983) ("Since the provision is ambiguous and both the state's and [the defendant's] interpretations are arguably reasonable, we agree that [the defendant's interpretation] should prevail under the Bell 'rule of lenity.'"). Accordingly, the statute must be construed to require criminal negligence, rather than civil negligence. ² That should end the discussion.

¹ Accord Commonwealth v. Heck, 341 Pa. Super. 183, 491 A.2d 212, 216 (Pa. Super. 1985), aff'd, 517 Pa. 192, 535 A.2d 575 (Pa. 1987) ("While both criminal negligence and recklessness involve 'gross' deviations from reasonable conduct, recklessness includes conscious disregard of a risk whereas criminal negligence is accompanied by lack of awareness of a risk.").

² A person convicted of a class B misdemeanor at the time of Hazelwood's offense could be "sentenced to a term of imprisonment of not more than 90 days." AS 12.55.135(b).

³  [omitted]

⁴ [omitted]

⁵ See also J. Salmond, Jurisprudence 410 (8th ed. 1930) ("negligence . . . is rightly treated as a form of mens rea, standing side by side with wrongful intention as a formal ground of responsibility").

⁶ For further elaboration of the distinction between intent and volition see James B. Brady, Punishment for Negligence: A Reply to Professor Hall, 22 Buff. L. Rev. 107, 109-16 (1972).

²² See State v. Hazelwood, 866 P.2d 827, 834 n.15 (Alaska 1993).

¹ Indeed, the court devotes several pages of discussion to the issue of the proper interpretation of the statute. Op. at 23-24. Such discussion would be unnecessary in the absence of any ambiguity as to the mens rea required under the statute.

² It is well established that any ambiguity in a statute should be resolved in favor of a construction that does not raise constitutional concerns. See Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807 P.2d 487, 498 (Alaska 1991) ("Statutes are to be construed to avoid a substantial risk of unconstitutionality where adopting such a construction is reasonable . . . ."). Since application of a civil negligence standard would raise a constitutional question, the statute must be construed so as not to apply such a standard.

Problem 1:

Sam has agreed to feed his friend's dog when she is away.  Forgetting the address of her house, he enters a stranger's house by mistake.  Looking around and seeing some money lying on a table, Sam takes it and leaves. Which of the above crimes, if any, might Sam have committed?

Problem 2:  

Fred, looking for something of value to steal, breaks into what he takes to be an uninhabited house under construction and starts looking around.  He is surprised to find Owen, the owner, living there. Which of the above crimes, if any, might Fred have committed?

Problem 3:

Bored one night, Jane and Larry break into the local mall after closing, as they later say, "just for kicks."  But unbeknownst to Jane, Larry has placed explosives in Jane's backpack. Which of the above crimes, if any, might Jane have committed?

Problem 4:

Mags is holding a crowbar, and says to an undercover officer, "Here's what my buddy Jack uses when he's short on cash."  When arrested, Mags says, "How can I be charged -- who knew that holding a crowbar was a crime?" Is Mags right? 

1.    In Flores-Figueroa (discussed in Miles), Flores-Figueroa was convicted of illegal entry into the U.S. without inspection, misusing immigration documents, and aggravated identity theft. Aggravated identity theft (§1028A(a)(1) of the U.S. Code) adds a mandatory two-year sentence to anyone who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The facts showed that Mr. Flores-Figueroa presented to his employer counterfeit Social Security and alien registration cards that contained identification numbers that had been assigned to other people. But he testified that, although he knew the documents he presented were counterfeit, he did not know that the numbers on the documents in fact belonged to other people. The U.S. Supreme Court reversed, holding that Flores-Figueroa had to know that the means of identification belonged to another person--that is, it was not enough merely to show that he knew the identification materials were false.

How would Flores-Figueroa be decided under State v. Miles?

2.    A statute reads, “It is unlawful to knowingly fire a machine gun in a densely populated neighborhood and thereby injure a bystander.” What words within this statute are modified by the adverb "knowingly"? In other words, what knowledge on the defendant's part is required by this statute for a successful conviction? Apply the holdings in Miles, Nations, and Flores-Figueroa to interpret this statute. 

3.    Two years ago, alarmed by the noise created when residents drove motorized vehicles through Central Park, the town of Quietville passed this ordinance: “No vehicles permitted in the park.” Shortly thereafter, the police arrested five teenagers, claiming they had broken the law by riding their bicycles through the park. In response to the teens’ successful challenge to their arrest, Quietville amended its law. It now reads: "Out of respect for the quiet of our town, it is illegal to enter the park with a motorized vehicle."

Last month, a group of patriots sought to place a functioning military truck in the park as a war memorial. Police arrested the group as they were driving the truck into Central Park.

You are their defense lawyer. Write a paragraph with no more than 3 sentences stating the relevant rule of law and explaining why application of that rule to these facts means that defendants are not guilty.

4.    Revisiting the facts of Miles: What are some "good facts" for the prosecution? What facts allow us to reasonably infer that Miles knew what he was picking up? By the same token, what are some "good facts" for the defense? In what way could one rebut the prosecution's case regarding what Miles knew?  

5.    A mistake of fact is a defense against a crime requiring knowledge. That is, an honest misunderstanding about the crucial facts can negate the required mens rea. (Note: mistake of fact does not apply to strict liability crimes where knowledge would be irrelevant.) 

Why didn't a mistake of fact defense work for Miles? 

6.    Consider the following alternative scenarios for Miles and assess whether a judge or jury might find a mistake of fact: 

a) Miles received an email from his mother to expect a care package on that very day. That was, in fact, what he believed he was picking up. 

b) Miles believed the package contained Adderall, which he uses on days he needs to attend classes or take exams. 

c) Miles believed the package contained Oxycodone, but testing revealed the contents to be table salt. 

d) Miles believed the package contained Oxycodone, but did not believe it was against the law to receive such a package. (See "mistake of law.") 

These examples illustrate the materiality principle. How do we know an element is "material" for purposes of construing the required mens rea? Pretend that the statute had been written without the element in question. Would the remaining elements of the offense still constitute a crime? If the conduct is innocent in the absence of the element in question, then it is definitely a material element of the crime.

Elements that are not likely to pass the materiality inquiry are those that enhance the severity of the offense or those that confer jurisdiction. Many state statutes divide burglary into degrees based on circumstances of the crime. For example, if one knowingly enters the home of another for the purpose of stealing, Missouri describes that crime as burglary in the second degree.  The crime becomes more serious--burglary in the first degree, subject to a more severe range of punishment, if a person who is not a participant in the crime is present in the home when the burglary is committed, or if the perpetrator of the crime steals a firearm.  Suppose that the defendant commits a burglary, never discovering that the homeowner is hiding under the bed the entire time? Must he know that the homeowner is present to be convicted of first degree burglary? Suppose the burglar steals a box, not knowing that it contains an antique pistol. Must he know he has stolen a gun to be convicted of first degree burglary? These kinds of conditions abound in criminal codes. Selling drugs within a certain proximity of a school or assaulting a police officer are common examples.

Jurisdictional elements are also typically interpreted to be immaterial elements of the offense. For example, federal statutes that prohibit trafficking in drugs, explosives, certain firearms, or prostitution may not be subject to federal prosecution unless the conduct is committed across state lines or otherwise affects interstate commerce or other federal interest. In a prosecution for the offense of knowingly transporting an automatic weapon across state lines, would the prosecution have to prove beyond a reasonable doubt that the defendant knew his crime had crossed a state boundary?

One commits a crime with “general intent” by acting voluntarily with the knowledge that they are committing a prohibited act. (Example: Battery.) By contrast, one acts with “specific intent” when one, in addition to acting knowingly, desires the specific outcome or result of the act. Here, prosecutors bear an additional burden of proving the defendant intended their actions to result in the specified crime. Many crimes are “specific intent” crimes.

First major point: general intent is the exception, not the rule.  There are very few examples of modern “general intent” statutes .  It's a holdover from common law.  It will end up mattering for a few special cases, and when we study mistake.  The overwhelming majority of statutes, however, are going to be specific-intent statutes.

 When encountering a statute, ask the following questions:

1. Has a mens rea been specified in the statute?

To answer this question, look for adverbs such as knowingly, purposely, recklessly, maliciously, etc., or phrases like "with intent to commit a felony" or "with intent to distribute."  If you find these words or phrases, the statute is a specific intent statute. 

Note--we use the phrase "has a mens rea been specified" because the mens rea itself need not require “intent” (or what the MPC calls “purpose”—that an individual desire the outcome or the conduct).  To illustrate: a crime with the mens rea of “reckless” would mean that you don't intend the outcome, but you would nevertheless be guilty if you were simply aware of (and disregarded) the risk.  This statute is a specific intent statute because a mens rea has been specified.  It is the same with a negligent state of mind. For statutes with a mens rea of “reckless” or “negligent,” you do not need to intend the ultimate result of your recklessness or your negligence, you just need to be negligent or reckless given your knowledge of the possibility that such a result may occur.

If there is nothing specifying a state of mind in the statute, there are two possibilities: the statute is a strict liability statute or a general intent statute. Asking the next few questions will clarify this further.

2. Is the statute regulatory? Of recent vintage?  Targeting modern harms?  Malum prohibitum?  Is the punishment moderate?

These are some indicators of strict liability.  There's no mens rea required, but the statute is only moderately punished (by a small fine, say).  These statutes are likely to be strict liability statutes.

3. Was the prohibited conduct prohibited at common law? Does it target behavior that is malum in se?

These would be indicators of a general intent crime. The classic examples of general intent crimes are battery and rape statutes WITHOUT A SPECIFIED MENS REA.  We highlight this to underscore the fact that general intent isn't inherent in crimes themselves, but only in statutes.  That is, if you have a rape or battery statute that doesn't specify a mens rea, it is likely to be a general intent statute.  But if you have a rape or battery statute that has a specified mens rea, common law rules don't matter.

The difference? Consider the way the rule is phrased in the below examples: 

This is a very murky area of the law.  The best we can do for you is this: think about these offenses as being malum in se (literally, bad in themselves, e.g. adultery is bad, hitting someone is bad).  You have acted voluntarily with a morally blameworthy mindset--you had sex, you tried to hit--so you need not have intended the outcome (to rape or injure someone).  You have, essentially, intended to do something bad, so it's OK to punish you for what you actually did rather than what you may (or may not) have thought you were doing.  General intent means, essentially, that you acted voluntarily, so it tends to collapse with actus reus here--but it usually only applies to these malum in se kinds of actions.

Finally: 

4. Is it a famous strict liability carveout?

Statutory rape is the classic example of a strict liability crime.  (Don't ask how it is philosophically consonant with rape being general intent. Just know that it's strict liability.) You need not intend to have sex with someone under the age of consent, even though it is punished with severe consequences.  We punish people for mistakes in this realm.

Henry Prince was tried before DENMAN, J., on the charge of having unlawfully taken one Annie Phillips, an unmarried girl being under the age of sixteen years, out of the possession, and against the will of her father, contrary to § 55 of the Offences Against the Person Act, 1861. [Although Prince protested that he was unaware of Ms. Phillips age and that she had told him that she was 18, he was convicted and appealed.]

June 12, 1875. BRAMWELL, B., read the following judgment

The question in the case depends on the construction of the statute under which the prisoner is indicted. Section 55 of the Offences Against the Person Act, 1861, enacts that:

"Whosoever shall unlawfully take ... any unmarried girl being under the age of sixteen years, out of the possession and against the will of her father or mother, or any other person having the lawful care or charge of her, shall be guilty of a misdemeanour . . . "

The word "unlawfully" means "not lawfully," "otherwise than lawfully," "without lawful cause" - such as would exist for instance on a taking by a police officer on a charge of felony or a taking by a father of his child from her school. The statute, therefore, may be read thus: "Whosoever shall take...without lawful cause." The prisoner had no such cause, and consequently except in so far as it helps the construction of the statute, the word "unlawfully" may, in the present case, be left out, and then the question is: Has the prisoner taken an unmarried girl under the age of sixteen out of the possession of and against the will of her father? In fact he has; but it is said not within the meaning of the statute, and that that must be read as though the word "knowingly" or some equivalent word was in.

The reason given is that as a rule mens rea is necessary to make any act a crime or offence, and that, if the facts necessary to constitute an offence are not known to the alleged offender, there can be no mens rea. Let it be then that the question is whether he is guilty where he knows, as he thinks, that she is over sixteen. This introduces the necessity for reading the statute with some strange words introduced; as thus: "Whosoever shall take any unmarried girl being under the age of sixteen, and not believing her to be over the age of sixteen, out of the possession," etc. Those words are not there, and the question is whether we are bound to construe the statute as though they were, on account of the rule that mens rea is necessary to make an act a crime.

I am of opinion that we are not, nor as though the word "knowingly" was there, and for the following reasons. The act forbidden is wrong in itself, if without lawful cause. I do not say illegal, but wrong. [W]hat the statute contemplates, and what I say is wrong, is the taking of a female of such tender years that she is properly called a girl, and can be said to be in another's possession, and in that other's care or charge. No argument is necessary to prove this; it is enough to state the case. The legislature has enacted that if anyone does this wrong act he does it at the risk of the girl turning out to be under sixteen. This opinion gives full scope to the doctrine of mens rea. If the taker believed he had the father's consent, though wrongly, he would have no mens rea. So if he did not know she was in anyone's possession, nor in the care or charge of anyone. In those cases he would not know he was doing the act forbidden by the statute, an act which, if he knew she was in the possession and care or charge of anyone, he would know was a crime or not according as she was under sixteen or not. He would know he was doing an act wrong itself, whatever was his intention, if done without lawful cause. In addition to these considerations one may add that the statute does use the word "unlawfully," and does not use the words "knowingly or not believing to the contrary." If the question was whether his act was unlawful there would be no difficulty as it clearly was not lawful.

I say it is a question of construction of this particular statute no doubt bringing thereto the common law doctrine of mens rea being a necessary ingredient of crime. It seems to me impossible to say that where a person takes a girl out of her father's possession, not knowing whether she is or is not under sixteen, that he is not guilty, and equally impossible when he believes, but erroneously, that she is old enough for him to do a wrong act with safely. I think the conviction should be affirmed.

BRETT, J. - In this case the prisoner was indicted under § 55 of the Offences Against the Person Act, 1861, for that he did unlawfully take an unmarried girl, being under the age of sixteen years, out of the possession, and against the will of her father. According to the statement of the case, we are to assume that it was proved on the trial that he did take an unmarried girl out of the possession and against the will of her father, and that when he did so the girl was under the age of sixteen years. But the jury found that the girl went with the prisoner willingly, that she told the prisoner that she was eighteen years of age, that he believed that she was eighteen years of age, and that he had reasonable grounds for so believing.

[I]f the facts had been as the prisoner believed them to be, and as by the findings of the jury he might reasonably believe them to be, and he was deceived into believing them to be, he would have been guilty of no criminal offence at all, and, therefore, that what he did was not criminally unlawful within the meaning of the criminal statute under which he was indicted.

Upon all the cases I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or mens rea. Then comes the question: What is the true meaning of the phrase? I do not doubt that it exists where the prisoner knowingly does acts which would constitute a crime if the result were as he anticipated, but in which the result may not improbably end in bringing the offence within a more serious class of crime. As if a man strike with a dangerous weapon with intent to do grievous bodily harm and kills. The result makes the crime murder; the prisoner has run the risk. So, if a prisoner do the prohibited acts without caring to consider what the truth is as to facts, as if a prisoner were to abduct a girl under sixteen without caring to consider whether she was in truth under sixteen, he runs the risk. So, if he without abduction defiles a girl who is in fact under ten years old, with a belief that she is between ten and twelve, if the facts were as he believed he would be committing the lesser crime. Then he runs the risk of his crime resulting in the greater crime. It is clear that ignorance of the law does not excuse. It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present to the prisoner's mind, and which he has reasonable ground to believe, and does believe to be the facts, would, if true, make his acts no criminal offence at all. It may be true to say that the meaning of the word "unlawfully" is without justification or excuse. I, of course, agree that, if there be a legal justification, there can be no crime, but, I come to the conclusion that a mistake of fact on reasonable grounds, to the extent that, if the facts were as believed, the acts of the prisoner would make him guilty of no criminal offence at all, is an excuse, and that such excuse is implied in every criminal charge and every criminal enactment in England.

Appellate Department, Superior Court, Los Angeles

Crim. A. No. 17137.

October 22, 1979; THE PEOPLE Plaintiff and Respondent, v. WALDO NAVARRO, Defendant and Appellant.

(Opinion by Dowds, J., with Cole, P. J., and Saeta, J., concurring.)

COUNSEL

Harland W. Braun for Defendant and Appellant.

John K. Van de Kamp, District Attorney, Donald J. Kaplan and George M. Palmer, Deputy District Attorneys, for Plaintiff and Respondent.

OPINION

DOWDS, J.

Defendant, charged with a violation of Penal Code section 487, subdivision 1, grand theft, appeals his conviction after a jury trial of petty theft, a lesser but necessarily included offense. His contention on appeal is that the jury was improperly instructed. The only facts [99 Cal. App. 3d Supp. 3] set forth in the record on appeal are that defendant was charged with stealing four wooden beams from a construction site and that the state of the evidence was such that the jury could have found that the defendant believed either (1) that the beams had been abandoned as worthless and the owner had no objection to his taking them or (2) that they had substantial value, had not been abandoned and he had no right to take them.

The court refused two jury instructions proposed by defendant reading as follows:

Defendant's A

"If one takes personal property with the good faith belief that the property has been abandoned or discarded by the true owner, he is not guilty of theft. This is the case even if such good faith belief is unreasonable. The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict a defendant of theft."

Defendant's B

"If one takes personal property with the good faith belief that he has permission to take the property, he is not guilty of theft. This is the case even if such good faith belief is unreasonable.

The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict a defendant of theft."

Instead, the court instructed the jury in the words of the following modified instructions:

Modified-Defendant's A

"If one takes personal property in the reasonable and good faith belief that the property has been abandoned or discarded by the true owner, he is not guilty of theft."

Modified-Defendant's B

"If one takes personal property in the reasonable and good faith belief that he has the consent or permission of the owner to take the property, he is not guilty of theft. [99 Cal. App. 3d Supp. 4]

"If you have a reasonable doubt that the defendant had the required criminal intent as specified in these instructions, the defendant is entitled to an acquittal."

Accordingly, the question for determination on appeal is whether the defendant should be acquitted if there is a reasonable doubt that he had a good faith belief that the property had been abandoned or that he had the permission of the owner to take the property or whether that belief must be a reasonable one as well as being held in good faith.

A recent decision by the California Supreme Court throws light on this question. In People v. Wetmore (1978) 22 Cal. 3d 318 [149 Cal. Rptr. 265, 583 P.2d 1308], defendant was charged with burglary, like theft a specific intent crime. fn. 1 The Supreme Court held that the trial court had erroneously refused to consider at the guilt phase of the trial evidence that, because of mental illness, defendant was incapable of forming the specific intent required for conviction of the crime, instead of receiving such evidence only in respect of his plea of not guilty by reason of insanity. The court disapproved dictum in People v. Wells (1949) 33 Cal. 2d 330 [202 P.2d 53] that if psychiatric reports described a defendant's insanity as well as his diminished capacity, the evidence was inadmissible to prove his lack of specific intent, stating, at pages 323-324: "In holding that defendant's psychiatric evidence could not be utilized to prove that he lacked the specific intent required for the offense of burglary, the trial court followed a dictum laid down in our decision in People v. Wells, supra, 33 Cal. 2d 330. Wells, the seminal decision which established the doctrine of diminished capacity in California law, held that 'evidence of diminished mental capacity, whether caused by intoxication, trauma, or disease, can be used to show that a defendant did not have a specific mental state essential to an offense.' (People v. Conley (1966) 64 Cal. 2d 310, 316 [49 Cal.Rptr. [99 Cal. App. 3d Supp. 5] or other essential mental state, then that evidence is inadmissible under the not guilty plea ... (P. 351.)

"As we shall explain, the Wells dictum imposes an illogical and unworkable rule which has not been followed in subsequent cases. Wells spoke of excluding evidence which tended to prove 'lack of mental capacity ... because of legal insanity.' (P. 350.) Mental incapacity does not occur 'because of legal insanity;' instead both insanity and diminished capacity are legal conclusions derived from evidence of defendant's mental condition. (See Comment (1971) 18 UCLA L.Rev. 561, 563-564, fn. 11.) Consequently, if the evidence of a defendant's mental illness indicates that the defendant lacked the specific intent to commit the charged crime such evidence cannot reasonably be ignored at the guilt trial merely because it might (but might not) also persuade the trier of fact that the defendant is insane.

"Wells' distinction between evidence that defendant did not entertain the requisite intent, which is admissible, and evidence that he could not entertain that intent, which is inadmissible, cannot be supported. '[A]s a matter of logic, any proof tending to show that a certain mental condition could not exist is relevant and should be admissible to show that it did not exist. And, of course, proof that something could not exist is the best possible evidence that it did not exist.' (Louisell & Hazard, Insanity as a Defense: The Bifurcated Trial (1961) 49 Cal.L.Rev. 805, 819.) Moreover, as Justice Kaus pointed out in People v. Steele (1965) 237 Cal. App. 2d 182, 190-191 [46 Cal. Rptr. 704], evidence which tends to prove that a defendant could not entertain a certain intent may, when subject to cross-examination, convince the trier of fact that defendant was able to entertain the intent but did not do so on the occasion of the crime. Thus, Steele concludes, the trial court cannot refuse to admit such evidence when offered to prove diminished capacity."

The court concluded, at page 327: "We therefore hold that evidence of diminished capacity is admissible at the guilt phase whether or not that evidence may also be probative of insanity. The trial court erred when, relying on the Wells dictum, it refused to consider evidence of diminished capacity in determining defendant's guilt."

The instant case, does not, of course, involve evidence of mental illness. Evidence was presented, however, from which the jury could have concluded that defendant believed that the wooden beams had been abandoned and that the owner had no objection to his taking them, i.e., [99 Cal. App. 3d Supp. 6] that he lacked the specific criminal intent required to commit the crime of theft (intent permanently to deprive an owner of his property). A similar situation existed in People v. Photo (1941) 45 Cal. App. 2d 345 [114 P.2d 71], where defendant's conviction of grand theft for the taking of certain boxes of oranges which he thought he had purchased was reversed, the Court of Appeal stating at page 353: "Felonious intent is an essence of the crime of larceny. The general rule stated in 36 C. J., section 105, page 764, is: 'If one, in good faith, takes the property of another, believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny, although his claim is based on a misconception of the law or of his rights under it, for although ignorance of law and honest intentions cannot shield a man from civil liability for a trespass committed by him, yet they do protect him from criminal liability, by divesting the act of the felonious intent without which it cannot be a crime. It is necessary, however, in all cases that the claim of right to be a bona fide one, and not a mere cover for a felonious taking, and must be something more than a vague impression; it must amount to an honest conviction. Knowledge of the existence of an adverse claim by another person does not negative the existence of good faith.'

"From the evidence it appears that Photo apparently took the fruit, under a claim of title in himself, and if done in good faith after receiving what he thought was legal advice though it might have been erroneous, a presumption arose in his favor that the taking lacked the elements necessary to constitute larceny."

Earlier California cases are to the same effect. In People v. Devine (1892) 95 Cal. 227 [30 P. 378], defendant's conviction of larceny was reversed. He had driven away in a wagon, without any attempt at secrecy, a number of hogs, his own and three bearing another's mark or brand. The Supreme Court pointed out: "There are cases in which all the knowledge which a person might have acquired by due diligence is to be imputed to him. But where a felonious intent must be proven, it can be done only by proving what the accused knew. One cannot intend to steal property which he believes to be his own. He may be careless, and omit to make an effort to ascertain that the property which he thinks his own belongs to another; but so long as he believes it to be his own, he cannot feloniously steal it ..." (Id. at pp. 230-231.)

In re Bayles (1920) 47 Cal. App. 517 [190 P. 1034] concerned the owner and manager of an apartment house who was convicted of larceny [99 Cal. App. 3d Supp. 7] based on evidence that she had seized a sewing machine and victrola of a former tenant under claim of lien to secure certain charges allegedly owed by the tenant. The Court of Appeal declined to decide such fine points relating to the validity of the claim of lien as whether the tenant had left the apartment sufficiently clean, stating at pages 520-521: "[E]ven though the standard of cleanliness exacted by the petitioner should be found by the jury to be an unreasonable standard, and not the standard contemplated by the agreement between the parties, yet, we think petitioner would not be guilty of grand larceny. The record discloses no evil or felonious intent upon the part of the petitioner; she was merely seeking to enforce her civil rights as she believed them to exist. Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another. (Sec. 484, Pen. Code.) Every taking by one person of the personal property of another, without his consent, is not larceny. Felonious intent is of the essence of the crime of larceny. (People v. Devine, 95 Cal. 227 [30 Pac. 378].) If a jury should determine that the apartment was clean, according to the standard contemplated by the parties at the time they made their agreement, at the time petitioner took possession of the goods, and that, therefore, no money was due petitioner for cleaning the same, Mr. Tucker could be amply compensated in damages for the wrongful detention of his property. (Sec. 667, Code Civ. Proc., and sec. 3336, Civ. Code.) But this question must be tried out in a civil action, and not in a criminal proceeding. (Sec. 3379, Civ. Code; sec. 3380, Civ. Code; secs. 870, 509, 510, 511 and 512, Code Civ. Proc.)"

Defendant was discharged from custody pursuant to a writ of habeas corpus.

Cases in other jurisdictions also hold that where the law requires a specific criminal intent, it is not enough merely to prove that a reasonable man would have had that intent, without meeting the burden of proof that the defendant himself also entertained it. For example, in State v. Ebbeller (1920) 283 Mo. 57. [222 S.W. 396], a conviction of knowingly receiving a stolen automobile was reversed because the court gave the following erroneous jury instruction: "'By the term "knowing" that the property was stolen is not meant absolute personal and certain knowledge on the part of the defendant that the property mentioned in the indictment had been stolen, but such knowledge and information in his possession at the time he received the same, if you believe he did receive it, as would put a reasonably prudent man, exercising ordinary caution, on his guard, and would cause such a man exercising such caution, [99 Cal. App. 3d Supp. 8]and under circumstances which you believe defendant received the property, to believe and be satisfied that the property had been stolen.'" (222 S.W. at p. 397.)

In reversing, the court pointed out the error in the instruction as follows: "It will be noticed that the instruction does permit a conviction if the facts were such as (in the opinion of the jury) would have caused a reasonably prudent person, exercising ordinary caution, to have believed that the property had been stolen at the time received.

"We are inclined to the view ... that the learned attorney representing the appellant is correct in stating that--"'The question is not what some other person would have believed and known from the circumstances attending the receipt of the property, but what did this defendant believe and know.'" (Id.)

Similarly, in Kasle v. United States (6th Cir. 1916) 233 Fed. 878 a conviction of receiving stolen goods was reversed because of error in jury instructions which the appellate court read as informing the jury that the defendant could be convicted if a reasonable and honest man of average intelligence would have known the goods were stolen under the facts existing at the time, the court stating: "The effect of such tests was to charge the accused with guilty knowledge or not upon what the jury might find would have induced belief in the mind of a man such as they were told to consider, rather than the belief that was actually created in the mind of the accused; or, at last, the accused might be condemned even if his only fault consisted in being less cautious or suspicious than honest men of average intelligence are of the acts of others. The result of the rule of the charge would be to convict a man, not because guilty, but because stupid. The issue was whether the accused had knowledge--not whether some other person would have obtained knowledge--that the goods had been stolen." (Id at p. 887)

In State v. Aschenbrenner (1943) 171 Ore. 664 [138 P.2d 911] the following instruction in a larceny case was held to be erroneous: "You are instructed that in order to convict the defendants of the crime charged, it is necessary for the state to prove beyond a reasonable doubt that the defendants had knowledge, or notice of such facts and circumstances as would have convinced a reasonable man of ordinary intelligence and observation, that estray sheep were in the Aschenbrenner flock, and if upon the whole evidence in this case you have a reasonable doubt that the facts and circumstances known to the defendants [99 Cal. App. 3d Supp. 9] (if you find any were known to them), were such that a reasonable man of ordinary intelligence and observation would have known that estray sheep were in the Aschenbrenner flock, then you should find the defendants not guilty of the crime charged.

"On the other hand, if you find from the evidence beyond a reasonable doubt that the circumstances were such as to lead a rational man, a man of ordinary intelligence and observation, to know that estray sheep were in the Aschenbrenner flock, such circumstances would be sufficient to justify you in finding that the defendants knew estray sheep were in the Aschenbrenner flock." (171 Ore. at pp. 668-669.) The Supreme Court of Oregon said: "We are of the opinion that the circuit court erred in instructing the jury that circumstances which would lead a man of ordinary intelligence and observation to know that estray sheep were in the Aschenbrenner flock 'would be sufficient to justify' it 'in finding that the defendants knew' that fact. It seldom happens that direct evidence can be produced that the accused had actual knowledge of a fact. And in the absence of direct evidence knowledge may be inferred from circumstances. The issue, however, was whether the defendants had knowledge that estray sheep were in the flock, not whether some other person would or could have obtained that knowledge under the circumstances disclosed by the evidence. It might have appeared to the jury that the defendants, or some of them, did not possess the intelligence or observation of an ordinary man, or that in a given instance they, or some of them, acted unwisely, unreasonably, imprudently or carelessly, but not with criminal intent. The instruction complained of was not only erroneous, but highly prejudicial to the defendants' rights." (v. at p. 674) The Supreme Court of Arizona, in Reser v. State (1924) 27 Ariz. 43 [229 P. 936] held erroneous a jury instruction in a receiving stolen property case setting forth a test of whether the defendant received the property "under such circumstances that a man of ordinary prudence and caution would be satisfied that it was stolen property," the court stating: "It is contended that these instructions are erroneous, because they authorize a conviction even though appellant may not have had guilty knowledge that the property was stolen. It will be observed that they do permit a verdict of guilty whether defendant's knowledge of the theft was actual or merely imputed. Under the statement that, if the facts under which the property was received by the accused were such that a man of ordinary prudence and caution would have been satisfied that it was stolen, the law imputed to the defendant knowledge of this fact, the jury's only duty on the question of guilty knowledge was to decide what an ordinarily prudent [99 Cal. App. 3d Supp. 10] and cautious person would have done under the circumstances. This was equivalent to advising the jury that, if it concluded such a man would have been satisfied the property was stolen, the law would attribute the same knowledge to the accused. It relieved the jury from the necessity of considering whether the circumstances under which the defendant received the property were such as to cause him to realize individually it was stolen, and permitted his conviction upon the jury's determination of what an ordinarily prudent and cautious man would have done under the circumstances, without taking cognizance of the fact that there was nothing to show whether the accused possessed the prudence and caution of the one by whose actions his were tested. The question for the jury was not whether the facts would have given the ordinary person knowledge of the theft, but whether they had such effect upon the defendant himself with his understanding of their significance. Many people are not as cautious and prudent as the ordinary person, hence the circumstances might have meant knowledge to him, and nothing to the accused." (229 P. at p. 937.) Other cases from other jurisdictions setting forth the same rule could be cited and we appreciate that other cases can be found in which its application is not so clear. [1a] The proper rule, it seems to us, is set forth in Perkins on Criminal Law (2d ed. 1969) at pages 940-941: "If no specific intent or other special mental element is required for guilt of the offense charged, a mistake of fact will not be recognized as an excuse unless it was based upon reasonable grounds ... [On the other hand,]because of the requirement of a specific intent to steal there is no such thing as larceny by negligence. One does not commit this offense by carrying away the chattel of another in the mistaken belief that it is his own, no matter how great may have been the fault leading to this belief, if the belief itself is genuine."

[2] La Fave and Scott, Handbook on Criminal Law (1972) sets forth at page 357 what the authors call the "...rather simple rule that an honest mistake of fact or law is a defense when it negates a required mental element of the crime ..." As an example they refer to the crime of receiving stolen property, stating "...if the defendant by a mistake of either fact or law did not know the goods were stolen, even though the circumstances would have led a prudent man to believe they were stolen, he does not have the required mental state and thus may not be convicted of the crime."

[1b] In the instant case the trial court in effect instructed the jury that even though defendant in good faith believed he had the right to [99 Cal. App. 3d Supp. 11] take the beams, and thus lacked the specific intent required for the crime of theft, he should be convicted unless such belief was reasonable. In doing so it erred. fn. 2 It is true that if the jury thought the defendant's belief to be unreasonable, it might infer that he did not in good faith hold such belief. If, however, it concluded that defendant in good faith believed that he had the right to take the beams, even though such belief was unreasonable as measured by the objective standard of a hypothetical reasonable man, defendant was entitled to an acquittal since the specific intent required to be proved as an element of the offense had not been established. fn. 3

The People's reliance on People v. Mayberry (1975) 15 Cal. 3d 143 [125 Cal. Rptr. 745, 542 P.2d 1337] is misplaced. The discussion in that case involved the propriety of an instruction on mistake of fact in respect of charges of rape and kidnaping, general intent crimes, a different question from that here presented.

The judgment is reversed.

Cole, P. J., and Saeta, J., concurred.

FN 1. Wetmore had occupied an apartment in the owner's absence and used or destroyed some of the contents, allegedly in the good faith but unreasonable belief, induced by mental illness, that he owned the apartment and its contents.

FN 2. The portion of the court's instruction reading "If you have a reasonable doubt that the defendant had the required criminal intent ... the defendant is entitled to an acquittal" is, however, correct.

FN 3. Instruction No. 4.35 in the fourth edition of California Jury Instructions--Criminal, relating to ignorance or mistake of fact, reads as follows: "An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime.

"Thus a person is not guilty of a crime if he commits an act or omits to act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make such act or omission lawful." The use note for this instruction omits the caveat found under instruction No. 4.36, relating to ignorance or mistake of law, to the effect that the instruction would be inappropriate if the mistake may negative a specific intent or other mental state which the crime requires. We think trial judges would be well advised also to eschew or modify instruction No. 4.35 in cases involving crimes requiring a specific intent or mental state.

Review Questions

Navarro was charged with “trespassory taking and carrying away of the personal property of another with the intent to steal the property.” 

1. What is the mens rea in this statute?
2. Is this a general intent or a specific intent crime? 
3. What does the court mean when it says, “There is no such thing as larceny by negligence?” 
4. Summarize the debate over the jury instructions in this case. What were the trial court's instructions on mistake? What happened on appeal? 
5. What result if evidence showed that the D knew the beams belonged to another, but that, when he took them, he mistakenly thought they were oak, when actually they were pine?
6. What result if D knew the beams were not abandoned, but thought it was legal to take things from construction sites? 
7. What result had this case arisen in an MPC jurisdiction (applying  MPC 2.04(1))? 

Problem on Mistake

(1) Ignorance or mistake as to a matter of fact or law is a defense if:

(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense;...

Sara gives Dan a clear plastic bag with white powder in it and says, “Please deliver this bag to my 9th grade friend Frank when you see him at school today.” When Dan asks what it is, Sara says “It’s baby powder.” Dan sincerely believes it is baby powder. It’s cocaine. He’s charged with “intentional delivery of a controlled substance to a minor.”

1. Assuming the jury believes D’s testimony that he thought it was baby powder, will D be acquitted of the crime? Why or why not? 
   
   
2. Is D guilty if Sara tells D it’s legal for minors to deliver drugs to other minors, and after verifying D’s age is 15, has him take bag of cocaine to her 9th grade friend, Frank?
   
   
3. Same facts as in B., except that Sara was the on-duty police officer assigned to Dan’s school. 

People v. Snyder
32 Cal.3d 590
[Crim. No. 22293. Supreme Court of California. October 18, 1982.]

THE PEOPLE, Plaintiff and Respondent, v. NEVA B. SNYDER, Defendant and Appellant (Opinion by Richardson, J., with Bird, C. J., Mosk and Kaus, JJ., concurring. Separate dissenting opinion by Broussard, with Newman and Reynoso, JJ., concurring.)

OPINION RICHARDSON, J.

Defendant Neva Snyder appeals from a judgment convicting her of possession of a concealable firearm by a convicted felon (Pen. Code, § 12021), based upon her 1973 conviction for sale of marijuana, a felony (former Health & Saf. Code, § 11531). Defendant contends that the trial court erred in excluding evidence of her mistaken belief that her prior conviction was only a misdemeanor. We will conclude that defendant's asserted mistake regarding her legal status as a convicted [32 Cal. 3d 592] felon did not constitute a defense to the firearm possession charge. Accordingly, we will affirm the judgment.

At trial, defendant offered to prove the following facts supporting her theory of mistake: The marijuana possession charge resulted from a plea bargain not involving a jail or prison sentence. At the time the bargain was struck, defendant's attorney advised her that she was pleading guilty to a misdemeanor. Believing that she was not a felon, defendant thereafter had registered to vote, and had voted. On one prior occasion, police officers found a gun in her home but, after determining that it was registered to her husband, the officers filed no charges against defendant.

The trial court refused to admit any evidence of defendant's mistaken belief that her prior conviction was a misdemeanor and that she was not a felon. The court also rejected proposed instructions requiring proof of defendant's prior knowledge of her felony conviction as an element of the offense charged.

Penal Code section 12021, subdivision (a), provides: "Any person who has been convicted of a felony under the laws of the ... State of California ... who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense, ..."

[1] The elements of the offense proscribed by section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm capable of being concealed on the person. (People v. Bray (1975) 52 Cal. App. 3d 494, 497 [124 Cal. Rptr. 913]; People v. Neese (1969) 272 Cal. App. 2d 235, 245 [77 Cal. Rptr. 314]; People v. Nieto (1966) 247 Cal. App. 2d 364, 368 [55 Cal. Rptr. 546].) No specific criminal intent is required, and a general intent to commit the proscribed act is sufficient to sustain a conviction. (People v. Neese, supra, at p. 245; People v. McCullough (1963) 222 Cal. App. 2d 712, 718 [35 Cal. Rptr. 591].) With respect to the elements of possession or custody, it has been held that knowledge is an element of the offense. (People v. Burch (1961) 196 Cal. App. 2d 754, 770-771 [17 Cal. Rptr. 102]; People v. Gonzales (1925) 72 Cal. App. 626, 630-631 [237 P. 812].)

[2] Does section 12021 also require knowledge of one's legal status as a convicted felon? No case has so held. Penal Code section 26 provides that a person is incapable of committing a crime if he acted under a "mistake of fact" which disproves criminal intent. In this regard, the cases have distinguished between mistakes of fact and mistakes of law. As we stated in an early case: "It is an emphatic postulate of both civil and penal law that [32 Cal. 3d 593] ignorance of a law is no excuse for a violation thereof. Of course it is based on a fiction, because no man can know all the law, but it is a maxim which the law itself does not permit any one to gainsay .... The rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement. If a person accused of a crime could shield himself behind the defense that he was ignorant of the law which he violated, immunity from punishment would in most cases result." (People v. O'Brien (1892) 96 Cal. 171, 176 [31 P. 45]; see Brown v. State Department of Health (1978) 86 Cal. App. 3d 548, 554-555 [150 Cal. Rptr. 344], and cases cited.) Accordingly, lack of actual knowledge of the provisions of Penal Code section 12021 is irrelevant; the crucial question is whether the defendant was aware that he was engaging in the conduct proscribed by that section. (People v. Norton (1978) 80 Cal. App. 3d Supp. 14, 21 [146 Cal. Rptr. 343]; People v. Howard (1976) 63 Cal. App. 3d 249, 256 [133 Cal. Rptr. 689]; People v. Mendoza (1967) 251 Cal. App. 2d 835, 843 [60 Cal. Rptr. 5].)

In the present case, defendant was presumed to know that it is unlawful for a convicted felon to possess a concealable firearm. (Pen. Code, § 12021.) She was also charged with knowledge that the offense of which she was convicted (former Health & Saf. Code, § 11531) was, as a matter of law, a felony. That section had prescribed a state prison term of from five years to life, and the express statutory definition of a "felony" is "a crime which is punishable with death or by imprisonment in the state prison." (Pen. Code, § 17, subd. (a).)

Thus, regardless of what she reasonably believed, or what her attorney may have told her, defendant was deemed to know under the law that she was a convicted felon forbidden to possess concealable firearms. Her asserted mistake regarding her correct legal status was a mistake of law, not fact. It does not constitute a defense to section 12021.

None of the California cases relied on by defendant is apposite here. People v. Hernandez (1964) 61 Cal. 2d 529 [39 Cal. Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092], and People v. Mayberry (1975) 15 Cal. 3d 143 [125 Cal. Rptr. 745, 542 P.2d 1337], each involved mistakes of fact, not law. In Hernandez, the mistake concerned the age of the alleged victim of a statutory rape. In Mayberry, defendant erred in assuming that the adult victim of forcible rape consented to his acts. People v. Vogel (1956) 46 Cal. 2d 798 [299 P.2d 850], involved the good faith belief of a defendant charged with bigamy that he is free to remarry. We were careful to explain that defendant's mistake was a factual one: "We have concluded that defendant is not guilty of bigamy, if he had a bona fide and reasonable belief that facts existed that left him free to remarry." (Id., at p. 801; italics [32 Cal. 3d 594] added.) Moreover, Vogel characterized bigamy as a crime which "has been regarded for centuries as ... involving moral turpitude, ..." Obviously a bona fide belief that one is free to remarry nullifies the moral opprobrium attached to the charge. On the other hand, being an ex-felon in possession of a concealable firearm, while illegal, hardly stamps the person charged as a moral leper. His belief that he is not a felon thus does not affect the criminality of his conduct.

Our conclusion is confirmed by federal cases interpreting a similar federal statute forbidding possession of a firearm by one convicted of a felony. (18 U.S.C.A. Appen. § 1202(a).) The only element of the federal offense which is not found in section 12021 of the Penal Code is an effect upon "commerce." (See United States v. Bass (1971) 404 U.S. 336, 347-349 [30 L. Ed. 2d 488, 496-497, 92 S. Ct. 515].) The federal statute has been uniformly interpreted as requiring only that the defendant was in fact a convicted felon, and not that he actually knew he was a felon. (United States v. Locke (9th Cir. 1976) 542 F.2d 800, 801; United States v. Mathews (9th Cir. 1975) 518 F.2d 1296; United States v. Crow (9th Cir. 1971) 439 F.2d 1193, 1196.) As stated in Locke, "Because the crimes here charged do not require a specific intent [citation], the fact that appellant may have been advised by a public defender that he was not a convicted felon, has no relevance." (P. 801.)

Defendant relies primarily upon People v. Bray, supra, 52 Cal.App.3d at p. 494, but that case is distinguishable. There defendant pleaded guilty in Kansas to being an accessory before the fact and was placed on two years' summary probation, which he successfully completed. When he subsequently sought to register to vote, he filled out an explanatory form referring to a Kansas offense, and indicating that he was uncertain whether he had been convicted of a felony. He was permitted to vote. Seeking employment as a security guard, he stated that he had not been convicted of a felony but described the circumstances of his arrest and probation. The Bureau of Collection and Investigative Services registered him as a guard. On several other job applications he indicated his uncertainty as to his status while fully setting forth the circumstances of his arrest and probation.

In Bray, the court concluded that under these unusual circumstances the trial court erred in refusing to instruct on mistake or ignorance of fact and knowledge of the facts which make the act unlawful. (52 Cal.App.3d, at p. 499.) The court cautioned, however, that its decision "should not be interpreted to mean instructions on mistake or ignorance of fact and knowledge of the facts are required every time a defendant claims he did not know he was a felon .... It is only in very unusual circumstances such as these that the giving of these instructions is necessary." (Ibid.) [32 Cal. 3d 595]

In the present case, unlike Bray, defendant made no attempt to inform government officials of the circumstances of her conviction or to seek their advice regarding her correct legal status. (Some authorities have suggested that reliance upon the erroneous advice of governmental authorities might constitute an exception to the general rule that a mistake of law is no defense. See Perkins on Criminal Law (2d ed. 1969) p. 938; A.L.I. Model Pen. Code (Proposed Official Draft 1962) § 2.04(3)(b).)

We conclude that the trial court properly excluded evidence of defendant's asserted mistake regarding her status as a convicted felon.

The judgment is affirmed.

Bird, C. J., Mosk J. and Kaus, J. concurred.

BROUSSARD, J.

I dissent.

The two elements of a violation of Penal Code section 12021 are felony status and possession of a concealable firearm. While no specific criminal intent is required, a general criminal intent should be required as to both elements in accordance with long-settled rules of statutory interpretation, and an honest and reasonable mistake as to either element of the offense, however induced, should negate the requisite general criminal intent. Defendant's testimony if believed would have established an honest and reasonable mistaken belief that her prior offense was not a felony but a misdemeanor, and it was prejudicial error to refuse to admit the evidence and to refuse instructions on the mistake doctrine.

The majority have adopted a special strict liability rule as to section 12021, holding that a felon is charged with knowledge of his status and that an honest and reasonable mistaken belief as to the nature of the conviction is not a defense unless apparently it is induced or corroborated in whole or in part by governmental conduct. The traditional and longstanding defense of mistake negating criminal intent should not be limited to situations where the mistake is induced or corroborated by government officials. Irrebutable presumptions of knowledge are not favored in the criminal law, and because the source of an honest and reasonable mistake does not affect the question of the existence of criminal intent, we should not accept the government source limitation.

During a lawful search of defendant and her husband's home in 1979, officers found one loaded handgun and two other handguns which were partially disassembled. In 1973 she had been convicted upon a guilty plea of sale of marijuana, a felony. (Former Health & Saf. Code, § 11531.) [32 Cal. 3d 596]

Defendant sought to testify that she believed that her marijuana possession conviction had been for a misdemeanor rather than a felony. She offered to testify that she had not been sentenced to jail or prison but was on probation for two years, that her attorney told her at the time of the plea bargain that she was pleading guilty to a misdemeanor, and that believing she was not a felon she had since registered to vote and voted. She also offered to testify that on a prior occasion, officers found a pistol in her home but that after determining the gun was registered to her husband, no charges were filed for possession of the gun. Other charges were filed but dismissed. Her husband had also been convicted in 1973 of the same marijuana charge.

The trial court refused to admit the evidence of defendant's mistaken belief that the prior conviction was a misdemeanor and that she was not a felon. The court also rejected offered instructions to require knowledge of a prior felony conviction as an element of the offense, and to define "knowingly," to explain the effect of ignorance or mistake of fact disproving criminal intent. (CALJIC Nos. 1.21, 4.35, 3.31.5 [paraphrased].) fn. 1 The instructions, if given, would have required the jury to find that defendant knew she was a felon as an element of the crime.

Penal Code section 12021, subdivision (a) provides: "Any person who has been convicted of a felony under the laws of the ... State of California ... who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense, ..."

We recently recognized our duty to reconcile the provisions of section 12021 with other Penal Code provisions in People v. King (1978) 22 [32 Cal. 3d 597] Cal.3d 12, 23 [148 Cal. Rptr. 409, 582 P.2d 1000]. In that case, a felon during a melee involving violence by intruders took a pistol and fired it. We held that it was error to refuse to instruct the jury on self-defense and defense of others. (22 Cal.3d at p. 26.) We reasoned that the section 12021 prohibition of possession by a felon of a concealable firearm must be reconciled with the statutory provisions of the Penal and Civil Codes permitting any person the right to use force in defense of self or others. (22 Cal.3d at p. 23.)

In the instant case we are similarly called upon to reconcile section 12021 with Penal Code sections 26 and 20.

Penal Code section 26 provides generally that a person is incapable of committing a crime when the act was committed under a mistake of fact disproving any criminal intent. Section 20 of that code provides: "In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.

"The word 'intent' in section 20 means 'wrongful intent.' (See People v. Vogel (1956) 46 Cal. 2d 798, 801, fn. 2 [299 P.2d 850].) 'So basic is this requirement [of a union of act and wrongful intent] that it is an invariable element of every crime unless excluded expressly or by necessary implication.' (Id., at p. 801.)" (People v. Mayberry (1975) 15 Cal. 3d 143, 154 [125 Cal. Rptr. 745, 542 P.2d 1337].)

At common law an honest and reasonable belief in circumstances which, if true, would make the defendant's conduct innocent was held to be a good defense. (People v. Hernandez (1964) 61 Cal. 2d 529, 535 [39 Cal. Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092].) The concept of mens rea, the guilty mind, expresses the principle that it is not conduct alone but conduct accompanied by certain mental states which concerns, or should concern the law. While in some cases, culpability had been completely eliminated as a necessary element of criminal conduct, the court has moved away from imposition of criminal liability in the absence of culpability where the governing statute, by implication or otherwise, expresses no legislative intent or policy to be served by strict liability. (Id., at pp. 532-533.)

The elements of the offense proscribed by section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm capable of being concealed on the person. (People v. Bray (1975) 52 Cal. App. 3d 494, 497 [124 Cal. Rptr. 913]; People v. Neese (1969) 272 Cal. App. 2d 235, 245 [77 Cal. Rptr. 314]; People v. Nieto (1966) 247 Cal. App. 2d 364, 368 [55 Cal. Rptr. 546].) While no specific criminal intent is required, a general intent to commit the proscribed act is [32 Cal. 3d 598] necessary. (People v. Neese, supra, 272 Cal. App. 2d 235, 245; People v. McCullough (1963) 222 Cal. App. 2d 712, 718 [35 Cal. Rptr. 591].) As to the element of possession or custody, it has been held that knowledge is an element of the offense. (People v. Burch (1961) 196 Cal. App. 2d 754, 770-771 [17 Cal. Rptr. 102]; People v. Gonzales (1925) 72 Cal. App. 626, 630-631 [237 P. 812].)

There does not appear to be any provision in section 12021 by implication or otherwise indicating legislative intent or policy to be served by refusing to apply the general criminal intent requirement to both of the elements of the offense. The Attorney General argues that, because knowledge of possession or custody of the gun are essential to conviction, strict liability would not result from holding that knowledge of a felony conviction is irrelevant. While under such construction the offense would not involve strict liability as to those who were unaware that they possessed a handgun, it would impose strict liability upon those who were unaware of their felony convictions and could legally possess handguns in the absence of conviction. The language of section 12021 sets forth both elements of the offense in parallel construction, and there is no basis in the language or grammatical construction of the statute warranting a distinction between the two elements with respect to the mens rea requirement. In the absence of any provision reflecting legislative intent or policy to establish strict liability, the mens rea requirement is applicable to the felony conviction element of the offense as well as the possession and custody element. (People v. Bray, supra, 52 Cal. App. 3d 494, 498-499; cf. People v. Mendoza (1967) 251 Cal. App. 2d 835, 843 [60 Cal. Rptr. 5].)

To hold otherwise is contrary to the settled California rule that a mens rea requirement is an "invariable" element of every crime unless excluded expressly or by necessary implication. People v. Mayberry, supra, 15 Cal. 3d 143, 154; People v. Vogel, supra, 46 Cal. 2d 798, 801.) Having established the rule, we must assume the Legislature is aware of it and acting in accordance with it, and the absence of any provision to establish strict liability must be read as reflecting legislative intent to require wrongful intent.

The majority rely upon federal cases interpreting a federal statute forbidding possession of a firearm by one convicted of a felony or certain misdemeanors. (18 U.S.C. Appen. § 1202(a)(1); United States v. Locke (9th Cir. 1976) 542 F.2d 800, 801; United States v. Mathews (9th Cir. 1975) 518 F.2d 1296; United States v. Crow (9th Cir. 1971) 439 F.2d 1193, 1196.) In particular they rely upon the following statement from Locke: "Because the crimes here charged do not require specific intent, United States v. Quiroz, 449 F.2d 583, 585 (CA9 1971), the fact that [32 Cal. 3d 599] appellant may have been advised by a public defender that he was not a convicted felon, has no relevance." (542 F.2d at p. 801.) (Maj. opn., ante, p. 595.)

None of the federal cases cite or discuss statutes comparable to Penal Code sections 20 and 26. Concluding that there is no scienter or mens rea requirement, the courts reason that the crime is a statutory offense rather than a common law offense and that as to statutory offenses there ordinarily is no scienter requirement in the absence of express provision therefor. (United States v. Crow, supra, 439 F.2d 1193; United States v. Quiroz, supra, 449 F.2d 583, 585.) Penal Code sections 20 and 26 are part of our statutory law, and there is no basis for a conclusion that they apply only to common law offenses and not to statutory offenses. Because of those statutes, we have adopted a rule of construction directly contrary to the federal rule, i.e., wrongful intent "is an invariable element of every crime unless excluded expressly or by necessary implication." (People v. Vogel, supra, 46 Cal. 2d 798, 801.) Just as the federal courts adhere to their rules as to the effect of congressional silence, we should adhere to the legislative direction in sections 20 and 26 and our rules as to legislative silence. Having established the ground rules for statutory interpretation, we may not abrogate them on the basis of federal cases applying contrary ground rules.

In determining whether a defendant's mistaken belief disproves criminal intent pursuant to Penal Code section 26, the courts have drawn a distinction between mistakes of fact and mistakes of law. Criminal intent is the intent to do the prohibited act, not the intent to violate the law. (1 Witkin, Cal. Crimes (1963) § 148, p. 141.) "It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof. Of course it is based on a fiction, because no man can know all the law, but it is a maxim which the law itself does not permit any one to gainsay .... The rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement. If a person accused of a crime could shield himself behind the defense that he was ignorant of the law which he violated, immunity from punishment would in most cases result." (People v. O'Brien (1892) 96 Cal. 171, 176 [31 P. 45].) Accordingly, lack of knowledge of the provisions of Penal Code section 12021 is irrelevant; the crucial question is whether the defendant was aware that he was engaging in the conduct proscribed by that section. (People v. Howard (1976) 63 Cal. App. 3d 249, 256 [133 Cal. Rptr. 689]; People v. Mendoza, supra, 251 Cal. App. 2d 835, 843.)

While mistake as to whether the conduct is violative of a statute is not a defense, a mistaken impression as to the legal effect of a collateral matter [32 Cal. 3d 600] may mean that a defendant does not understand the significance of his conduct and may negate criminal intent. When the victim's status is an element of the crime, a mistaken belief as to the status has been held a defense in several decisions by this court. In People v. Hernandez, supra, 61 Cal. 2d 529, 532 et seq., it was held that a reasonable and honest belief that the prosecutrix was 18 years or more of age would be a defense to a charge of statutory rape, negating the requisite mental intent. Similarly, in People v. Atchison (1978) 22 Cal. 3d 181, 183 [148 Cal. Rptr. 881, 583 P.2d 735], it was held that a reasonable and honest belief that the victim was 19 years of age was a defense to charges of annoying or molesting a child under age 18 and of contributing to the delinquency of a minor. And in People v. Mayberry, supra, 15 Cal. 3d 143, 153-158, it was held that a mistaken belief that the prosecutrix had consented would be a defense to a charge of forcible rape and kidnaping.

This court has also held that criminal intent may be negated by defendant's reasonable and bona fide but erroneous belief as to his status. In People v. Vogel, supra, 46 Cal. 2d 798, 801 et seq., the defendant was prosecuted for bigamy, and it was held that the defendant's bona fide and reasonable belief that his first wife had divorced him and remarried would be a good defense. The court reasoned in part that it would not be reasonable to hold "that a person is guilty of bigamy who remarries in good faith in reliance on a judgment of divorce or annulment that is subsequently found not to be the 'judgment of a competent court' (Pen. Code, § 282), particularly when such a judgment is obtained by the former husband or wife of such person in any one of the numerous jurisdictions in which such judgments can be obtained. Since it is often difficult for laymen to know when a judgment is not that of a competent court, we cannot reasonably expect them always to have such knowledge and make them criminals if their bona fide belief proves to be erroneous." (46 Cal.2d, at p. 804; see People v. Roessler (1963) 217 Cal. App. 2d 603, 604 [31 Cal. Rptr. 684] (defendant remarried after service of the interlocutory decree of divorce but before entry of final decree).) The court also pointed out that at common law an honest and reasonable belief in circumstances which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense. (46 Cal.2d, at p. 805.)

People v. Flumerfelt (1939) 35 Cal. App. 2d 495, 497-498 [96 P.2d 190], also illustrates the distinction between mistake of fact and mistake of law. In that case, the defendant was charged with selling corporate securities without a permit. The defendant claimed that before she sold the securities, her attorney told her that a permit to sell had been obtained, and it was held that her honest but mistaken belief that a permit to sell had been [32 Cal. 3d 601] issued constituted a defense. However, the court distinguished the situation where counsel erroneously advises that the instrument to be sold is not a security, pointing out that a mistake as to the legal consequences of the act which constitutes a violation of the statute would not be a defense. (35 Cal.App.2d at pp. 498-499; see 1 Witkin, Cal. Crimes, supra, § 151, p. 145.)

The O'Brien, Hernandez, Atchison, Mayberry, Vogel and Flumerfelt cases, read together, make clear that a mistake of law is one premised on ignorance of the terms of the statute which the defendant is charged with violating. However, when the defendant reasonably and honestly believes that the statute is not applicable to him or that he has complied with it, there is a mistake of fact. There is a mistake of fact even though the matter as to which the defendant is mistaken is a question of law. The questions of age in Hernandez and Atchison were matters resolved as a matter of law as was marital status in Vogel and the nonissuance of a permit in Flumerfelt.

The Court of Appeal has held that a mistaken belief that a conviction was not a felony conviction could negate criminal intent in a prosecution for violation of Penal Code section 12021. (People v. Bray, supra, 52 Cal. App. 3d 494, 497-499.) Bray graphically illustrates the injustice which results from holding that a reasonable and good faith belief of lack of felony status is not a defense. Bray pled guilty in Kansas to being an accessory before the fact and was placed on two years summary probation which he successfully completed. When he subsequently sought to register to vote, he filled out an explanatory form referring to the Kansas offense, indicating he was uncertain whether he had been convicted of a felony. He was permitted to vote. Seeking employment as a security guard, he stated he had not been convicted of a felony but set forth the circumstances of his arrest and probation. The Bureau of Collection and Investigative Services registered him as a guard. On several other job applications he indicated his uncertainty as to his status setting forth the circumstances of his arrest and probation. At Bray's trial for violation of section 12021, the prosecutor recognized "'in even our own jurisdiction, let alone a foreign jurisdiction such as the State of Kansas, it's extremely difficult to determine whether a sentence was a felony or a misdemeanor.'" (52 Cal.App.3d, at p. 498.)

In Bray, it was concluded that in the circumstances the trial court erred in refusing to instruct on mistake or ignorance of fact and knowledge of the facts which make the act unlawful. (52 Cal.App.3d, at p. 499.)

The Court of Appeal stated that its decision should not be interpreted to mean instructions on mistake or ignorance of fact or knowledge of the facts are required every time a defendant claims he did not know he was a felon. [32 Cal. 3d 602](Id.) Relying on that statement, the majority concludes that Bray should be limited to situations where a state agency has misled the defendant. The statement relied upon merely reflects that only in rare cases will there be a basis for a reasonable belief that a felony conviction was a misdemeanor conviction. The reasoning in Bray applies to any case where there is a reasonable and good faith mistake and is in accord with the common law and our statutory rule. The source of the reasonable and good faith mistake does not affect the existence of criminal intent. fn. 2

Had the trial court in the instant case admitted the offered evidence and given the requested instruction, the jury could properly have concluded that defendant had a reasonable and good faith belief that her conviction was not a felony conviction. She was granted probation without jail or prison sentence. Her attorney had advised her that the offense was a misdemeanor, fn. 3 and there were additional circumstances reflecting a good faith belief.

The errors in excluding the offered evidence and refusing the offered instructions denied defendant the right to have the jury determine substantial issues material to her guilt and require reversal of the conviction. (People v. King (1978) 22 Cal. 3d 12, 27 [148 Cal. Rptr. 409, 582 P.2d 1000]; People v. Mayberry, supra, 15 Cal. 3d 143, 157-158.)

I would reverse the judgment.

Newman, J., and Reynoso, J., concurred.

FN 1. CALJIC No. 1.21: "'Knowingly -- Defined

"The word 'knowingly', as used in my instructions, imports only a knowledge of the existence of the facts in question, when those facts are such as bring the act or omission within the provision of the law. The word does not require in its meaning any knowledge of the unlawfulness of such act or omission."

CALJIC No. 4.35: "Ignorance or Mistake of Fact

"An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime. [¶] Thus a person is not guilty of a crime if he commits an act or omits to act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make such act or omission unlawful."

CALJIC No. 3.31.5, as paraphrased: "In violation of the crime charged in Section 12021 of the Penal Code the information namely, the possession of a concealed weapon by an ex-felon, there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator and unless such mental state exists the crime to which it relates is not committed. [¶] In the crime of 12021 of the Penal Code, the necessary mental state is knowledge on the part of the Defendant that he has been previously convicted of a felony offense."

FN 2. I am perplexed by the majority's apparent limitation of the mistake doctrine to would-be "moral leper[s]." The more heinous the crime the more reason to limit defenses, and the majority's suggested limitation appears to turn the usual relationship between law and morality upside down.

FN 3. It has been held that advice of counsel that prohibited conduct is lawful is not a defense because it would place the advice of counsel above the law. (See 1 Witkin, Cal. Crimes, supra, § 150, pp. 143-144.) Counsel's advice in the instant case is relevant to establish good faith; it does not in and of itself establish a defense.

Review Questions

The following is the operative statute in People v. Snyder: 

CA Penal Code section 12021, subdivision (a): "Any person who has been convicted of a felony under the laws of the ... State of California ... who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense...."

1. What does the Court identify as the material elements in this statute? 
   
2. What result if the defendant didn’t know she had a gun in her purse?
   
3. What is the defendant's mistake in this case, and what was the trial court's rationale for excluding her testimony regarding it? 
   
4. The Court understands the defendant's mistake as a mistake of law. Why? Might you argue that her mistake was actually a mistake of fact? 
   
5. How, do you think, the defense lawyer may have tried to use People v. Vogel, cited in the opinion, to support their case?
   
6. How does the majority distinguish People v. Vogel here? 
7. Explain the dissent’s position. (Consider how the majority concedes that prior, binding precedent interprets “possession” as requiring the state to prove knowledge.) 
   
8. What result if, rather than relying on her lawyer’s declaration that she had been convicted only of a misdemeanor, the defendant could show that it was her judge who had told her it was a misdemeanor?
   
9. Finally, what result in People v. Snyder if it arose in MPC land?
   (HINT: remember to apply all of the MPC rules for interpreting statutes lacking mens rea. Do you have enough information to answer this question? See below).

MPC 2.04 (1) Ignorance or mistake as to a matter of fact or law is a defense if:

(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; ...

“MPC” Penal Code section 12021(a): "Any person who has been convicted of a felony under the laws of the ... Model Penal Code Land ... who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense...."

Ignorance of the Law is No Excuse! Or is it?

1. A person is not relieved of criminal liability for conduct because he or she engages in such conduct under a mistaken belief of fact or law unless such mistake negatives the existence of the mental state required by the offense.
2. A person is not relieved of criminal liability for conduct because he or she believes his or her conduct does not constitute an offense unless his or her belief is reasonable and:

(1)  The offense is defined by an administrative regulation or order which is not known to him or her and has not been published or otherwise made reasonably available to him or her, and he or she could not have acquired such knowledge by the exercise of due diligence pursuant to facts known to him or her; or

(2)  He or she acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in:

(a)  A statute;

(b)  An opinion or order of an appellate court; or

(c)  An official interpretation of the statute, regulation or order defining the offense made by a public official or agency legally authorized to interpret such statute, regulation or order.

3. The burden of injecting the issue of reasonable belief that conduct does not constitute an offense under subdivisions (1) and (2) of subsection 2 of this section is on the defendant.

 Notice: NOT CITABLE - ORDERED NOT PUBLISHED TIMLIN, Acting P. J.

I

INTRODUCTION

Helen Wu, also known as Helen Hamg Ieng Chau (defendant), was convicted of the second degree murder of her son, Sidney Wu (Sidney), following trial by jury. Her motion for a new trial was denied and she was sentenced to a prison term of 15 years to life. She filed timely notice of appeal, and contends that the court committed reversible error by (1) refusing to instruct the jury on the defense of unconsciousness, and (2) refusing to instruct the jury on her theory of the case.

Initially, we note that the facts presented at trial, while not in conflict as to certain specific events, did vary considerably as to whether defendant had "motherly" feelings toward the victim, her son[Sidney], whether she was a "traditional" Chinese woman, and, based on the above noted factors, whether the motive for his death was a desire for revenge against Sidney's father or guilt over having not taken good care of the child and fear that he would be ill-treated in the future.

The prosecution's theory seems to have been that defendant killed Sidney because of anger at Sidney's father, and to get revenge. The defense's theory was that defendant believed that Sidney, who lived with his father in the United States, was looked down upon and was ill-treated by everyone except his paternal grandmother because he had been borne out of wedlock, and that when she learned that the grandmother was dying of cancer, she felt trapped and, in an intense emotional upheaval, strangled Sidney and then attempted to kill herself so that she could take care of Sidney in the afterlife.

The only issues on appeal are whether the trial court committed prejudicial error by refusing to give two instructions requested by defendant, one related to the defense of unconsciousness, and one related to the effect her cultural background might have had on her state of mind when she killed Sidney.

When the issue is whether it was error to give an improper instruction, on appeal "we must assume that the jury might have believed the evidence upon which the instruction favorable to the losing party was predicated, and that if the correct instruction had been given upon that subject  the jury might have rendered a verdict in favor of the losing party.'" (Henderson v. Harnischfeger Corp.  (1974) 12 Cal.3d 663, 674 [117 Cal. Rptr. 1, 527 P.2d 353], quoting O'Meara v. Swortfiguer  (1923) 191 Cal. 12, 15 [214 P. 975].)

Therefore, for purposes of this appeal, we shall set forth the evidence, which the jury might have found credible and upon which defendant's requested instructions were predicated.

II

FACTS

Defendant was born in 1943 in Saigon, China. At the age of 19, in about 1962 or 1963, she moved to Macau. She married and had a daughter, who was 25 years old at the time of the trial of this matter in February 1990. In 1963, she met Gary Wu (Wu), the son of one of her friends. That same year Wu went to the United States, and married Susanna Ku. He opened several restaurants in the Palm Springs area.

After eight years of marriage, defendant was divorced, and became employed, writing statistics for greyhound races. She was apparently betrothed to remarry in the mid-1970's, but her fiancé developed lung cancer and died. His sister, Nancy Chung (Chung), became defendant's close friend and confidante. According to Chung, Chung's brother made her promise to help defendant because defendant was a kind, moral person, not greedy, but too trusting.

In 1978 or 1979, defendant was contacted by Wu, who had heard that she was divorced and had a daughter. Wu told her his marriage was unsatisfactory because his wife could not have children. According to defendant, Wu told her he planned to divorce his wife. They discussed the possibility that defendant could come to the United States and conceive a child for Wu. Defendant believed Wu would marry her after he divorced his wife. Defendant was in love with Wu, and Wu gave defendant money to deposit in a joint bank account and sent her $20,000 so she could apply for a visa to the United States.

[The court described in some detail the tumultuous relationship between the defendant and Wu. She did conceive a child, Sidney, by Wu, but Wu was not honest about his divorce from his previous wife. At one point, she returned to China, but did not take Sidney with her because of the cultural shame of being a single mother in China. Eventually Wu did marry her, she returned to the U.S., but she continued to experience distress about his philandering behavior and his interest in her money. The narrative resumes after Helen and Wu argued about money, and she decided to return to China. She had tickets to depart on September 15.]

On September 9, the evening of the killing, defendant was playing with Sidney. Earlier that day defendant had interceded on Sidney's behalf when Wu hit Sidney when Sidney would not get out of the family car. Wu had gone to the restaurant to put on two birthday parties, apparently for his friend Rosemary. Defendant and Sidney played and talked, and defendant told Sidney that she knew what he liked because of the mother-child bond between them.

Sidney told defendant that Wu said she was "psychotic" and "very troublesome." He then told defendant that Rosemary was Wu's girlfriend, and that the house they lived in belonged to Rosemary. He also told her that Wu made him get up early so Wu could take Rosemary's daughters to school in the morning and if he did not get up, Wu would scold and beat him. He said Wu loved Rosemary more than him. Defendant began to think about what she had been told by Sidney's grandmother and Sandy concerning her taking care of Sidney. She began to experience heart palpitations and to have trouble breathing. She told Sidney she wanted to die, and asked him if he would go too. He clung to her neck and cried. She then left the bedroom, and obtained a rope by cutting the cord off a window blind. She returned to the bedroom and strangled Sidney. According to defendant, she did not remember the strangling itself. She stopped breathing, and when she started breathing again, she was surprised at how quickly Sidney had died. She then wrote a note to Wu to the effect that he had bullied her too much and "now this air is vented. I can die with no regret," but did not mention Sidney's killing in the note. She then attempted to strangle herself, failed, went to the kitchen and slashed her left wrist with a knife, and then returned to the bedroom and lay down next to Sidney on the bed, having first placed a waste-paper basket under her bleeding wrist to catch the blood so that the floor would not be dirtied.

Wu returned home several hours later, and discovered defendant and Sidney. He called the police, and the paramedics were also summoned. The police determined that Sidney was dead. The paramedics tested defendant's vital signs, and determined that although her pulse and blood pressure were normal, she exhibited a decreased level of consciousness.

Dr. Michael Mostyn, the doctor who saw defendant when she was taken to the emergency room, testified that she had cut the veins in her wrist, but not the arteries, which are normally deeper beneath the surface than the veins, and that venous bleeding, if not irritated or prevented from clotting with the use of hot water, would stop, and that in his opinion a person who had simply slashed their veins, rather than their arteries, would not die. He also testified that this fact was not common knowledge to the "man on the street."

Dr. Saul Faerstein, a physician specializing in psychiatry, testified, after reviewing pictures of the wounds on defendant's wrists, that they did not appear to have been inflicted by a "malingerer," that they were the type of wound which a layperson, particularly one who was agitated, severely depressed, or confused, might make in a serious attempt to commit suicide. He also testified, as to the decreased state of consciousness in which defendant was found, that defendant might have fainted and then remained in a reduced level of consciousness, but that "we're talking about something more than fainting here," and "there are many, people may disassociate, people may have emotional reactions which are acute and severe, where suddenly they become confused, as a result of shock, as a result of some acute shock. Clearly the circumstances of what was going on with her son were overwhelming kinds of trauma that she was experiencing, and I believe that the shock she was experiencing were [sic ] traumatic but psychological in or[i]gin."

Chung testified that two days after Sidney's death, she received a telephone call from Wu, who was fishing for information about how defendant had accumulated the money he believed she possessed. Chung evaded his questions, and then Wu told her that defendant had strangled Sidney and "committed" suicide, but that defendant had been saved. Chung then hired an attorney in Hong Kong to help defendant.

Defendant was charged with murder (Pen. Code, § 187) and, following a trial by jury, was convicted of second degree murder.

III

DISCUSSION

1. The Trial Court Committed Reversible Error by Refusing to Instruct the Jury on the Defense of Unconsciousness

[omitted]

1. Upon Retrial, the Trial Court Should, if so Requested, Instruct the Jury on How Evidence of Defendant's Cultural Background Relates to Defendant's Theory of the Case

****

Defendant requested the following instruction:

"You have received evidence of defendant's cultural background and the relationship of her culture to her mental state. You may, but are not required to, consider that the [sic ] evidence in determining the presence or absence of the essential mental states of the crimes defined in these instructions, or in determining any other issue in this case." [At trial, the prosecutor objected to this instruction, and the trial court refused to give it, commenting that it did not want to put the "stamp of approval on [defendant's] actions in the United States, which would have been acceptable in China."]

 On appeal, the People do not contend that the instruction should not have been given because there was no established appellate law on such an instruction, but instead contend that failure to give the requested instruction was not error, because … defendant's defense as to mental states was sufficiently covered by the other instructions given.

****

It is error to refuse to give an instruction requested by a defendant which "directs attention to evidence from . . . which a reasonable doubt of his guilt could be engendered." (People v. Sears  (1970) 2 Cal.3d 180, 190 [84   Cal. Rptr. 711, 465 P.2d 847];  People v. Hall  (1980) 28 Cal.3d 143, 159 [167 Cal. Rptr. 844, 616 P.2d 826].) In fact, "[a] defendant is entitled to an instruction relating particular facts to any legal issue. [Citations.]" ( People v. Sears , supra , 2 Cal.3d at p. 190.)

****

There is no reason why defendant's requested instruction, simply pointing out that the jury may  consider evidence of her cultural background in determining the  presence or absence of the relevant mental states, should not have been given.

****

Here, the instruction, assuming it is legally correct, is clearly applicable to the facts of this case, as there was ample evidence of both the defendant's cultural background, and how it could have affected her mental state at the time of the charged offense.

The issue then is whether it was a correct statement of the law that the jury may consider evidence of defendant's cultural  background in determining the presence or absence of the "essential mental states of the crimes defined in these instructions, or in determining any other issue in this case." ³

The essential mental states at issue here were (1) premeditation and deliberation, (2) malice aforethought, and (3) specific intent to kill. Generally speaking, all relevant evidence is admissible (Evid. Code, § 351), and the trier of fact may consider any admitted evidence. Here, the admission of evidence of defendant's cultural background was never objected to by the People; there is no argument that the evidence was relevant. The question then is, on what issues was such evidence relevant? As discussed below, this evidence clearly related to certain mental states, which are elements of the charged offense.

First, the evidence of defendant's cultural background was clearly relevant on the issue of premeditation and deliberation. The prosecution's theory was that defendant's statements on days before the killing to Wu and other family members indicated that she had planned to take revenge on Wu by killing Sidney in a Medea-like gesture. The evidence of defendant's cultural background offered an alternative explanation for the statements (that defendant intended to kill herself) and also for motive behind the killing, that explanation being that the killing of Sidney (as opposed to defendant's own planned suicide) was not deliberate and premeditated, but instead occurred immediately after defendant learned from Sidney himself facts conclusively confirming, in defendant's mind, the statements by Gramma and Sandy, and her own observations, that Sidney was not loved by Wu and was badly treated.

Second, the evidence of defendant's cultural background was also relevant on the issue of malice aforethought and the existence of heat of passion at the time of the killing, which eliminates malice and reduces an intentional killing to voluntary manslaughter. (Pen. Code, § 192.) The court recognized that "heat of passion" was an issue in this case because it instructed the jury regarding heat of passion negating malice and further instructed the jury regarding the lesser included offense of manslaughter.

"Normally, an intentional killing is at least second degree murder, but such a killing is voluntary manslaughter if 'shown to have been committed in a heat of passion upon sufficient provocation . . . .'" (People v. Wickersham , supra , 32 Cal.3d 307, 325, quoting People v. Sedeno  (1974) 10 Cal.3d 703, 719 [112 Cal. Rptr. 1, 518 P.2d 913].) ""[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, and that, consequently, no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. . . . For the fundamental of the inquiry is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion not necessarily fear and never, of course, the passion for revenge to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."" (People v. Wickersham , supra , 32 Cal.3d at p. 326, quoting People v. Berry  (1976) 18 Cal.3d 509, 515 [134 Cal. Rptr. 415, 556 P.2d 777], quoting, in turn, People v. Valentine  (1946) 28 Cal.2d 121, 139 [169 P.2d 1].)

" To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' (Sedeno , supra , 10 Cal.3d at p. 719.) However, as this court stated in Berry, 'there is no specific type of provocation required by [Penal Code] section 192 [defining manslaughter] and . . . verbal provocation may be sufficient.' (18 Cal.3d at p. 515.)

"The subjective element requires that the actor be under the actual influence of a strong passion at the time of the homicide. 'In People v. Borchers  (1958) 50 Cal.2d 321, 329 [325 P.2d 97] . . . in the course of explaining the phrase "heat of passion" used in the statute defining manslaughter[,] we pointed out that "passion" need not mean "rage" or "anger" but may be any "[v]iolent, intense, high-wrought or enthusiastic emotion" and concluded there "that defendant was aroused to a heat of 'passion' by a series of events over a considerable period of time . . . ." (50 Cal.2d at p. 328, 329.)' ( Berry, supra , 18 Cal.3d at p. 515.)[⁴ ] However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter-'the assailant must act under the smart of that sudden quarrel or heat of passion.' (CALJIC No. 8.42 (1979 rev.).)" ( People v. Wickersham , supra , 32 Cal.3d at pp. 326-327.)

Here, there was evidence that defendant had experienced a series of events for a 10-year period before and during her stay in late August and early September 1989 with Wu in California, from which the jury could have concluded that defendant was suffering from "pre-existing stress" at the time that Sidney told her things which confirmed her fear that Sidney, because he was not legitimate and because he had no mother to care for him, was not well-treated, and that things were going to get worse for him upon the death of his Gramma. The testimony related to defendant's cultural background was relevant to explain the source of such stress, as well to explain how Sidney's statements could have constituted "sufficient provocation" to cause defendant to kill Sidney in a "heat of passion."

The experts on transcultural psychology specifically testified that, in their opinion, defendant was acting while in an emotional crisis ⁵ during the time that she obtained the knife and cord, strangled Sidney and then slashed her own wrist, and that her emotional state was intertwined with, and explainable by reference to, her cultural background. Specifically, the following testimony was given:

Dr. Chien testified:

"A So when all of this thought came up to her mind, all of a sudden she said she couldn't breathe. She almost got into some kind of state that she did not know what she was doing other than thinking that, 'There's no way out other than bringing the son together with her to the other life.'"

After then describing the Chinese belief in an afterlife, he testified that:

"A She told me wondering that is a heaven, paradise. She thought the only way to find out a way out is to bring this Sidney to go together so the mother and son can finally live together in the other heaven, other world if that cannot be done in this realistic earth."

Dr. Chien further testified: "And at that time, she said during the strangulation or that kind of emotional heat-obviously, she was under the heat  of passion when she realized that her son was unwanted son, uncared by Gary, passed around from one woman to the other woman, and now the grandmother is dying and she was planning to leave, 'What will happen to Sidney?'

"And all this information came up to her mind to stimulate all her guilt feeling which was probably more than ordinary guilt feeling that some depressive person would feel.

"I must say that guilt feeling is quite a common symptom in depressive patient, and for that many depressed person would commit suicide.

"But in this case, Helen had some realistic reason to be 200 percent or 300 percent more guilty in addition to her normal guilt feeling that came from depression. She would feel that she couldn't really do the duty to the son, so the only way to fulfill her duty when she realized her son was neglected and not to be cared by anybody in the future, she thought the way to go is to the heaven.

"So obviously, obviously she strangulated her son and she kind of start being after to breathe again after the strangulation and realize how quickly a boy who is not a small boy could be killed by her small stature."

Dr. Chien was asked about the significance of the "depression in [defendant's] thought processes" on her decision to strangle Sidney and he testified:

"A It was very-in my expertise as a transcultural psychiatry, in my familiarity, with my familiarity with the Chinese culture translate and from the information interview I obtain from Helen, she thought she was doing that out from the mother's love, mother's responsibility to bring a child together with her when she realized that there was no hope for her or a way for her to survive in this country or in this earth.

"Q Well, are you telling us that the death of Sidney was her act of love?

"A Yes. It's a mother's altruism. This may be very difficult for the Westerner to understand because I have dealt with many other so-called children who are sent to me from the children bureau. Children can be easily taken away from the mother in our agencies' mind. Social worker, when they discovered child abuse case or whatever case, children can be easily taken away from the parents.

"But in the Asian culture when the mother commits suicide and leave the children alone, usually they'll be considered to be a totally irresponsible behavior, and the mother will usually worry what would happen if she died, 'Who is going to take care of the children? Anybody [sic-nobody?] can supply the real love that mother could provide,' so and so. "

[Text omitted.]

"Q Well, based upon what you heard from Helen and reviewed from the materials, was Helen in a fugue state when she strangled Sidney?

"A Obviously.

"Q Why is it obvious?

"A Because that kind of emotion, mixed emotional of the despair, anger, disappointment, depression, sadness, hopelessness, everything all sudden come up to her mind that she thought the only way out is to go to the heaven together with the son. And that is not kind of comfortable thing for people to think long time ahead or to plan.

"So obviously, she was under a kind of heat of emotion or I call it heat of passion that went out like a dreamy state."

Dr. Terry Gock, a clinical psychologist who interviewed defendant for a total of nine and a half hours in three interview sessions and a witness for the defense, testified on direct examination that on the day Sidney was killed, defendant was experiencing a very high level of emotional turmoil, i.e., an emotional crisis, which he described as "when our, when our feelings are so conflicting, so confused and so, so distressful that we, that we don't perhaps know exactly how to plan a course of action, plan a solution in the most rational way." He testified that in his opinion, defendant's cultural background was very intertwined with her emotional state on the evening of the killing. Specifically, Dr. Gock testified:

"Is very difficult to divorce ourselves from our culture and act in a totally culturally different way. And so, you know, she in many ways is a product of her past experiences, including her culture. And also when she experience certain things, like some of the information that she, that she got from her son that evening, it was, it was very distressful for her. And in some sense the kind of alternatives that she, if you would perhaps, you know, it's not as rational as an alternative that the only way she saw out was perhaps-you know, maybe that's the best word is the way she saw how to get out of that situation was quite culturally determined. "

[Text omitted.]

"A I was, I was thinking-I was, I was trying to explain is that her, she believe at that time that she had been lied to by, by, by Gary. But more importantly that she believed that that evening what she found out was that Gary was not taking care of Sidney as a father would be expected to do, did not provide the paternal love that was, that she all along thought Sidney was receiving. And that was very distressful for her.

"And then in terms of what are some of the alternatives then for her. In-perhaps in this country, even with a traditional woman may, may see other options. But in her culture, in her own mind, there are no other options but to, for her at that time, but to kill herself and take the son along with her so that they could sort of step over to the next world where she could devote herself, all of herself to the caring of the son, caring of Sidney.

"Q Was that the motive for killing him?

"A Motive, if you will, yes.

"Q What was her purpose?

"A Her purpose is to, is that she, is, in many ways is, is a benevolent one. It's a positive one where she believed-and this, this sounds sort of implausible to some, some of us whose, who are raised in another culture. That what she believed was that she was not exactly killing but, through death, both of them would be reunited in the next world where she could provide the kind of caring that Sidney did not get in this world."

On cross-examination, Dr. Gock agreed that defendant must have made a decision to kill Sidney, and then decided what instrumentality to use, where to get it, and when to use it, but noted that the way the questions were being presented by the prosecuting attorney suggested "a lot of thought processes," "[a]nd what I'm saying is that when one is emotionally distressed or one's feelings are all worked up, a lot of times we don't think in that kind of ways and we do things at, that afterwards we may be able to sort it out in that kind of a way, but at that time they were not separate elements like that."

There was also testimony from Professor Juris G. Draguns, a clinical psychologist and an expert in the area of cross-cultural psychology. He discussed, among other things, a "classical sociological study of suicide" which contained information about suicide and filicide, noting that the author: "[D]escribed the situation of these combined, of killing oneself and one's child as follows. She's talking then about American mothers for the most part in Chicago in the 1920's. These mothers apparently did not yet regard their infant children as separate personalities with an independent right to live but, rather, as part of themselves, sharing their troubles, and to be taken on with them into death.

"Except in extreme ends to which it leads, this attitude of interpreting the interests and attitudes of another, in terms of one's own interest, is not abnormal nor even unusual. In cases in which this attitude leads to murder before a suicide, the person committing the murder does not regard himself as doing anything criminal or even wrong. He is moved by love, pity, sympathy. He is removing someone from the wicked world before the wickedness has touched him. He's doing kindness by removing the other  from suffering, which he has endured and which, therefore, the other also endures or will in time encounter. End of quote.

"And this, I believe, very much fits the mental state in the psychological situation of Mrs. Wu at the time when she took Sidney's life and attempted to take her own."

Because the requested instruction was, for the most part, a correct statement of the law, ⁶ and because it was applicable to the evidence and one of defendant's two basic defenses in this case, upon retrial defendant is entitled to have the jury instructed that it may consider evidence of defendant's cultural background in determining the existence or nonexistence of the relevant mental states. 

Because we have already decided that the judgment must be reversed because of the court's failure to give an instruction on unconsciousness, and because we only considered defendant's assertion that it was error not to give the cultural background instruction for purposes of guiding the trial court on retrial, we need not consider whether defendant was prejudiced by the failure to give the cultural background instruction.

IV

DISPOSITION

The judgment is reversed.

McKinster, J., and McDaniel, J., ^* concurred. 

End of Document

³ Here, unlike the situation in Sears, the requested instruction did not tie the evidence to a particular mental state, such as deliberation and premeditation, but instead tied the evidence to "the essential mental states of the crimes defined in these instructions" and to "any other issue in this case."

⁴ [omitted]

⁵ [omitted].

⁶ The jury should not be instructed that the evidence of defendant's cultural background may be considered in connection with "any issue" in the case as stated in the last portion of the subject instruction; evidence may only be considered if it is relevant, and the evidence of defendant's cultural background was not necessarily relevant to "any issue" in the case. However, upon retrial, the trial court should correct such defects and give the requested instruction as so corrected. (People v. Sears , supra , 2 Cal.3d at p. 190.)

^* Retired Associate Justice of the Court of Appeal, Fourth District, sitting under assignment by the Chairperson of the Judicial Council.

Like medicine, psychology, and social work, law is first and foremost a human services profession. In all such professions, cultural competence is a performance standard. That is a slightly different question from whether and in what circumstances the law should accommodate an individual defendant's cultural experiences and beliefs.  Consider the following scenarios:

•  Nep, an 18-year-old refugee from Viet Nam, looks out his front window and sees someone breaking into his car and stealing his stereo.  He takes aim with his rifle and kills the perpetrator, who turns out to be a 15-year-old boy.  Nep is charged with murder. In Viet Nam, the law allows the use of deadly force to defend property. Nep had been in the U.S. less than a year, and did not know that American law is different.
• Zein, a Palestinian refugee living in the U.S., hears that his sixteen-year-old daughter has been seen having sex with her boyfriend after school.  He confronts his daughter, who confesses to the accusation. Tearfully, Zein stabbs his daughter in the heart, saying, "Die, quickly, daughter." Zein is charged with murder. Zein is charged with murder. He argues that in his culture, it is the duty of father to kill a daughter who brings dishonor to her family in this way.
• Mark, a private security contractor, is stationed in Kabul. On patrol, he hears a woman screaming. He runs toward the sound, and sees an older man with a knife preparing to stab her. He raises his pitol, and fires one shot, killing the man and saving the woman's life. The man was the woman's father, and he intended to kill his daughter for bringing shame on the family when she was seen in the company of a U.S. soldier. He is arrested and charged with the murder.  He wants to assert a defense that the shooting was justified in defense of another, but the law of the region is that honor killings are lawful, and that there is no right to intervene in such a killing. This leaves Mark with no defense to the crime.

How should the law respond to the cultural aspects in each of these cases? Consider the reasoning of the Court in People v. Wu. Would it adequately address the interplay of law and culture?

Strict Liability crimes were virtually unheard of at common law; only in the context of child sex offenses did courts entertain the possibility that a person could still be held criminally responsible if he honestly but incorrectly believed he was having sex with an adult. The courts reasoned that a person having sex out of wedlock with an underage person was not acting with a completely innocent frame of mind. However, as the previous cases in this unit amply demonstrate, requiring that the prosecution prove beyond a reasonable doubt that the defendant acted with a culpable mental state reduces the risk that the law will punish an innocent actor. Therefore the common law strongly disfavored imposing criminal liability without proof of a culpable mens rea.

Since the industrial revolution, society has enacted regulations and criminal offenses to protect the public health and well-being.  In the Twentieth Century, regulation for the public health and welfare grew exponentially along with the proliferation of industry, markets and global commerce that created risks for public health and safety. Protections against food and drug contamination, hazardous waste in public water supplies, and the release of toxins into the atmosphere that we all breathe have become commonplace. In the case of a business or industry that profits from trafficking in such risks, requiring the prosecution to prove beyond a reasonable doubt that a corporate entity or agent acted with a culpable mental state could easily frustrate the goals of such regulatory schemes. In this unit, we will study cases that explore where the line should be drawn between the risk of punishing innocent actors and the potential danger to the community posed by their conduct. Can you perceive patterns in which the courts are more inclined to punish conduct committed without proof of a culpable mens rea?    

Notes & Questions 

1. How reasonable was Nations's ignorance regarding the dancers' age? Should she have been charged with having had "inquiry notice" at least? Do you think the statute reduces the harm that prompted the statute's enactment if only "actual knowledge" is criminalized? 
   
   
2. On the other hand, rates of conviction and subsequent incarceration would certainly rise if a lesser mens rea would suffice for conviction. Is overcarceration a price we are willing to pay considering the harm to minors in this context? Are there other crimes for which we would (or not) be willing to take such risks? How might we balance these divergent policy goals? 
   
   
3. Because individual and subjective biases play into how we estimate characteristics like age, is there always a risk that some minors tend to be more protected than others? For example, social workers, police, and various non-family caregiving adults tend to see black children as less innocent and in need of protection than  white children. With that in mind, what should be the right standard for knowledge within the factual scenario of Nations?  
   
   
4. As you saw in this case, a legislature might adopt MPC language in its entirety or choose to adopt it partially or in piecemeal. Can we assume that the legislature meant to adopt the MPC framework even if it didn't adopt all of the MPC's language, or was this a deliberate choice? In Nations, does the court assume that actual knowledge was a deliberate move or an oversight? Contrast this case with how Morissette (below) addresses the same question regarding statutory construction. 
   
   One way to clarify this legislative intent, of course, is to pore over the documents (earlier versions of bills, committee notes, transcripts, etc.) leading up to the legislation. When should a court pay attention to legislative intent to aid its statutory construction? 
   
   
5. MENS REA PROBLEMS 
   

   PROBLEM 1: 

   Hypo: Jane runs a business buying and reselling used goods on eBay. She recently bought 5 laptop computers with “Property of Santa Clara University” stickers on the backs.

   Consider the consequences of her actions under these statutes:

   California Penal Code sec.496 “Receiving Stolen Property” 

    Every person who buys or receives any property that has been stolen…, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, …

   California Penal Code section 2-24-7-1: 

   The word "knowingly" imports only a knowledge that the facts exist which bring the act or omission within the provisions of this code. It does not require any knowledge of the unlawfulness of such act or omission.

   1) Is she guilty of Receiving Stolen Property if, suspecting they were stolen, she decides not to resell the laptops?

   2) Is she guilty of Receiving Stolen Property if the seller told her (and she believed him) that the laptops were discarded in a campus trash bin?
   
   3) Is she guilty of Receiving Stolen Property if she decided not to unpack and examine the laptops prior to reselling them because the price was so low? 
   
   4) What result under the same facts if California adopted 2.02(7)?
   
   

   PROBLEM 2: D is a nurse in a nursing home in an MPC state. After months of sheltering in place, he decides he can’t stand the isolation, and he attends a wild indoor dance party. Unlike most of the guests, who didn’t wear masks, D wore his mask except when he needed to kiss someone. D returns to work the following week, and later tests positive for Covid-19. Then, a week later, one of D’s patients tests positive for the virus. 

   D is charged with Felony Transmission of a Communicable Disease:  

   A person commits a class “D” felony when the person is reckless as to whether they have a contagious or infectious disease and exposes an uninfected person to the contagious or infectious disease acting with a reckless disregard as to whether the uninfected person contracts the contagious or infectious disease, and the conduct results in the uninfected person becoming infected with the contagious or infectious disease. 

   Which of the following is false, and why?

   1) D will be found guilty if the failure to recognize the risk he posed was a gross deviation from the standard of care that a reasonable person would have exercised. 

   2) D will be found guilty if the evidence shows D consciously disregarded the risk that he had been infected. 

   3) D will be found not guilty if it turns out the patient caught the virus from someone else.

   4) D will be found not guilty if D had no idea that one could transmit Covid-19 while wearing personal protective equipment (PPE)

   PROBLEM 3: D intends to poison her estranged spouse, who now lives with his girlfriend. She places poison gas in his car, and both he and the girlfriend die. How many counts of first-degree murder can Arizona bring against D?

   e.g. Arizona law: 13-1105. First degree murder; classification

   A person commits first degree murder if…the person causes the death of another person, with premeditation...

   Different result under MPC (see 2.03(2), (a) and (b))?

    

   PROBLEM 4: D robs bank, and a security guard chases him out, grabbing the car, and holding onto it as D drives away. D guns the engine and swerves, trying to frighten the guard into letting go. The guard falls off and is run over by another car, which kills him instantly.

   In MPC-land, is D guilty of Murder 210.2 or Manslaughter 210.3?

   PROBLEMS 5-8
   
   Use the following criminal statutes to determine what crimes, if any, might apply to the hypotheticals posed below
   
   S 140.17 Criminal trespass in the first degree.

     A person is guilty of criminal trespass in the first degree when he knowingly enters or remains unlawfully in a building that is the property of another.

   S 140.10 Theft

     A person is guilty of theft if he unlawfully takes the property of another with the purpose to deprive him thereof.

   S 140.20 Burglary in the third degree.

     A person is guilty of burglary in the third degree when he knowingly enters a building with intent to commit a crime therein.

   S 140.25 Burglary in the second degree.

     A person is guilty of burglary in the second degree when he knowingly enters a building with intent to commit a crime therein, and when:

   1. In effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime is armed with explosives or a deadly weapon;

   or

   2. The building is a dwelling.

    
   S 140.35 Possession of burglar’s tools.

     A person is guilty of possession of burglar`s tools when he possesses any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving forcible entry into premises, … under circumstances evincing an intent to use or knowledge that some person intends to use the same in the commission of an offense of such character.
   
   

   Problem 5:

   Sam has agreed to feed his friend's dog when she is away.  Forgetting the address of her house, he enters a stranger's house by mistake.   Looking around and seeing some money lying on a table, he takes it and leaves.

   Problem 6:  

   Fred, looking for something of value to steal, breaks into what he takes to be an uninhabited house under construction and starts looking around.  He is surprised to find Owen, the owner, living there.

   Problem 7:

   Bored one night, Jane and his schoolmate Larry break into the local mall at night, as they later say, "just for kicks."  But unknown to Jane, Larry has placed explosives in Jane's backpack.

   Problem 8:

   Mags is holding a crowbar, and says to an undercover officer, "here's what my buddy Jack uses when he's short on cash."  When arrested, Mags says, "How can I be charged -- who knew that holding a crowbar was a crime?"

    

    

Review Questions

1. What was the defendant's argument against the charges (regarding solicitation of prostitution and indecent exposure)? 
2. Why did the prosecution believe the provisions ought to have been read as strict-liability provisions?   
3. Recall State v. Nations. Does the court here adopt the same interpretation of the knowledge requirement? Could the State have shown D had constructive knowledge? Why was the argument not made? 
4. Do you agree with the court’s decision rejecting strict liability in this case? Consider cases in which the threat to public welfare is great, the cost of proving mental state is high, and the sanctions are minimal and not stigmatizing. When might it be worth it to require only strict liability? 
5. Use the following statutes when answering the questions below regarding the Kougl case: 

Rule 4.15 — Sexual Practices and Obscenity

(a) A licensee may not permit the licensed premises to be used for any sexual activity. A licensee, any employee, patron or frequenter may not solicit any person for prostitution or other immoral purposes.

(b) A licensee may not permit a person to appear in an act or other performance with breasts or the lower torso uncovered. A licensee may not knowingly permit the licensed premises to be used for the conduct, exhibition, or any unlawful performance….

Rule 4.16 — Illegal Conduct

A licensee may not commit or allow the commission on the licensed premises of an act that is contrary to any federal, State or local statute, law or ordinance or that is against the public peace, safety, health, welfare, quiet, or morals.

1. What was D’s defense against the charges that his establishment violated rules regarding solicitation of prostitution and indecent exposure? 
2. Explain the Prosecution’s argument for why these provisions ought to be read as “Strict Liability” provisions. 
3. Use the statute below, cited by the state, to bolster your argument: 

Rule 4.01 – Minors (a) Sales to Minors - No licensee shall sell, furnish, or allow to be furnished by his/her agent or employee alcoholic beverages to any person under twenty-one (21) years of age or to any person with the knowledge that such person is purchasing or acquiring such beverages for consumption by any person under twenty-one (21) years of age. 

          Explain how State asked the court to interpret 4.15 (below), given its interpretation of 4.01: 

Rule 4.15 — Sexual Practices and Obscenity

(a) A licensee may not permit the licensed premises to be used for any sexual activity. A licensee, any employee, patron or frequenter may not solicit any person for prostitution or other immoral purposes.

(b) A licensee may not permit a person to appear in an act or other performance with breasts or the lower torso uncovered. A licensee may not knowingly permit the licensed premises to be used for the conduct, exhibition, or any unlawful performance….

Problem: Kougl and Strict Liability

Ever since a closed-head injury left her with chronic pain, Diana has become a frequent user of painkillers. When her original prescriptions ran out, she began buying the drugs illegally from local dealers. Like many women, for years she has carried pepper spray (a tear gas spray) in her purse in the hopes that it would protect her in the event of a sexual assault. It’s been at the bottom of her purse for so long that she’d forgotten about it. Last month, police arrested her attempting to buy  drugs from an undercover officer. When they searched her purse and found the pepper spray, in addition to the drug-related charge, she was charged with the crime below, a misdemeanor which may add time to her sentence. The relevant statute is as follows: 

CA Penal Code Chap. 1, 22810. Notwithstanding any other provision of law, any person may purchase, possess, or use tear gas or any tear gas weapon for the projection or release of tear gas if the tear gas or tear gas weapon is used solely for self-defense purposes, subject to the following requirements:

… (b) No person addicted to any narcotic drug shall purchase, possess, or use tear gas or any tear gas weapon. 

Assume that Diana hires you as her defense attorney. Answer the following questions: 

1) Assuming that Diana is found to be addicted to painkillers (narcotics), explain the State’s case against her.  

2) Which of the following, assuming the jury believes Diana, might provide a defense? 

• Her testimony that she did not know she possessed pepper spray.
• Her testimony that she did not know she was an addict
• Her testimony that she did not know about the law against addicts possessing pepper spray.
• Her testimony that she was not negligent in carrying pepper spray because breaking the law was not unreasonable under the circumstances.

3) Reconsider the justifications for and against strict liability laws, and articulate the case for and against convicting Diana. 

4) Can you reconcile the outcome you predict in Diana’s case with the outcome in Kougl? Explain. 

MR. JUSTICE JACKSON delivered the opinion of the Court.

This would have remained a profoundly insignificant case to all except its immediate parties had it not been so tried and submitted to the jury as to raise questions both fundamental and far-reaching in federal criminal law, for which reason we granted certiorari.

On a large tract of uninhabited and untilled land in a wooded and sparsely populated area of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. These bombs consisted of a metal cylinder about forty inches long and eight inches across, filled with sand and enough black powder to cause a smoke puff by which the strike could be located. At various places about the range, signs read "Danger -- Keep Out -- Bombing Range." Nevertheless, the range was known as good deer country, and was extensively hunted.

Spent bomb casings were cleared from the targets and thrown into piles "so that they will be out of the way." They were not sacked or piled in any order, but were dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.

Morissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized $84.

Morissette, by occupation, is a fruit stand operator in summer and a trucker and scrap iron collector in winter. An honorably discharged veteran of World War II, he enjoys a good name among his neighbors and has had no blemish on his record more disreputable than a conviction for reckless driving.

The loading, crushing and transporting of these casings were all in broad daylight, in full view of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing. but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he "did unlawfully, wilfully and knowingly steal and convert" property of the United States of the value of $84, in violation of 18 U.S.C. § 641, which provides that "whoever embezzles, steals, purloins, or knowingly converts" government property is punishable by fine and imprisonment. [Footnote 1]. Morissette was convicted and sentenced to imprisonment for two months or to pay a fine of $200. The Court of Appeals affirmed, one judge dissenting.

On his trial, Morissette, as he had at all times told investigating officers, testified that, from appearances, he believed the casings were cast-off and abandoned, that he did not intend to steal the property, and took it with no wrongful or criminal intent. The trial court, however, was unimpressed, and ruled: "[H]e took it because he thought it was abandoned and he knew he was on government property. . . . That is no defense. . . . I don't think anybody can have the defense they thought the property was abandoned on another man's piece of property." The court stated: "I will not permit you to show this man thought it was abandoned. . . . I hold in this case that there is no question of abandoned property." The court refused to submit or to allow counsel to argue to the jury whether Morissette acted with innocent intention. It charged: "And I instruct you that if you believe the testimony of the government in this case, he intended to take it. . . . He had no right to take this property. . . . [A]nd it is no defense to claim that it was abandoned because it was on private property. . . . And I instruct you to this effect: that if this young man took this property (and he says he did), without any permission (he says he did), that was on the property of the United States Government (he says it was), that it was of the value of one cent or more (and evidently it was), that he is guilty of the offense charged here. If you believe the government, he is guilty. . . . The question on intent is whether or not he intended to take the property. He says he did. Therefore, if you believe either side, he is guilty." Petitioner's counsel contended, "But the taking must have been with a felonious intent." The court ruled, however: "That is presumed by his own act."

The Court of Appeals suggested that "greater restraint in expression should have been exercised," but affirmed the conviction because, "As we have interpreted the statute, appellant was guilty of its violation beyond a shadow of doubt, as evidenced even by his own admissions." Its construction of the statute is that it creates several separate and distinct offenses, one being knowing conversion of government property. The court ruled that this particular offense requires no element of criminal intent. This conclusion was thought to be required by the failure of Congress to express such a requisite and this Court's decisions in United States v. Behrman, 258 U. S. 280, and United States v. Balint, 258 U. S. 250.

I

In those cases, this Court did construe mere omission from a criminal enactment of any mention of criminal intent as dispensing with it. If they be deemed precedents for principles of construction generally applicable to federal penal statutes, they authorize this conviction. Indeed, such adoption of the literal reasoning announced in those cases would do this and more -- it would sweep out of all federal crimes, except when expressly preserved, the ancient requirement of a culpable state of mind. We think a resume of their historical background is convincing that an effect has been ascribed to them more comprehensive than was contemplated and one inconsistent with our philosophy of criminal law.

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will." Common law commentators of the Nineteenth Century early pronounced the same principle, although a few exceptions not relevant to our present problem came to be recognized.

Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle, but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "willfulness," "scienter," to denote guilty knowledge, or "mens rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common law crimes.

However, the Balint and Behrman offenses belong to a category of another character, with very different antecedents and origins. The crimes there involved depend on no mental element, but consist only of forbidden acts or omissions. This, while not expressed by the Court, is made clear from examination of a century-old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.

While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called "public welfare offenses." These cases do not fit neatly into any of such accepted classifications of common law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property, but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does not grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving.

The pilot of the movement in this country appears to be a holding that a tavernkeeper could be convicted for selling liquor to an habitual drunkard even if he did not know the buyer to be such. Barnes v. State, 19 Conn. 398 (1849). Later came Massachusetts holdings that convictions for selling adulterated milk in violation of statutes forbidding such sales require no allegation or proof that defendant knew of the adulteration. Commonwealth v. Farren, 9 Allen 489 (1864); Commonwealth v. Nichols, 10 Allen 199 (1865); Commonwealth v. Waite, 11 Allen 264 (1865). Departures from the common law tradition, mainly of these general classes, were reviewed and their rationale appraised by Chief Justice Cooley, as follows:

"I agree that as a rule there can be no crime without a criminal intent, but this is not by any means a universal rule. . . . Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible."

People v. Roby, 52 Mich. 577, 579, 18 N.W. 365, 366 (1884).

After the turn of the Century, a new use for crimes without intent appeared when New York enacted numerous and novel regulations of tenement houses, sanctioned by money penalties. Landlords contended that a guilty intent was essential to establish a violation. Judge Cardozo wrote the answer:

"The defendant asks us to test the meaning of this statute by standards applicable to statutes that govern infamous crimes. The analogy, however, is deceptive. The element of conscious wrongdoing, the guilty mind accompanying the guilty act, is associated with the concept of crimes that are punished as infamous. . . . Even there, it is not an invariable element. . . . But, in the prosecution of minor offenses, there is a wider range of practice and of power. Prosecutions for petty penalties have always constituted in our law a class by themselves. . . . That is true though the prosecution is criminal in form."

Tenement House Department of City of New York v. McDevitt, 215 N.Y. 160, 168, 109 N.E. 88, 90 (1915).

Soon, employers advanced the same contention as to violations of regulations prescribed by a new labor law. Judge Cardozo, again for the court, pointed out, as a basis for penalizing violations whether intentional or not, that they were punishable only by fine "moderate in amount", but cautiously added that, in sustaining the power so to fine unintended violations "we are not to be understood as sustaining to a like length the power to imprison. We leave that question open." People ex rel. Price v. Sheffield Farms Co., 1918, 225 N.Y. 25, 32-33, 121 N.E. 474, 476, 477.

Thus, for diverse but reconcilable reasons, state courts converged on the same result, discontinuing inquiry into intent in a limited class of offenses against such statutory regulations.

Before long, similar questions growing out of federal legislation reached this Court. Its judgments were in harmony with this consensus of state judicial opinion, the existence of which may have led the Court to overlook the need for full exposition of their rationale in the context of federal law. In overruling a contention that there can be no conviction on an indictment which makes no charge of criminal intent but alleges only making of a sale of a narcotic forbidden by law, Chief Justice Taft, wrote:

"While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not, in terms, include it . . . , there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. . . ."

United States v. Balint, supra, 258 U. S. 251-252.

He referred, however, to

"regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment, rather than the punishment of the crimes, as in cases of mala in se,"

and drew his citation of supporting authority chiefly from state court cases dealing with regulatory offenses. Id. at 258 U. S. 252.

On the same day, the Court determined that an offense under the Narcotic Drug Act does not require intent, saying,

"If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent."

United States v. Behrman, supra, at 258 U. S. 288.

Of course, the purpose of every statute would be "obstructed" by requiring a finding of intent, if we assume that it had a purpose to convict without it. Therefore, the obstruction rationale does not help us to learn the purpose of the omission by Congress. And since no federal crime can exist except by force of statute, the reasoning of the Behrman opinion, if read literally, would work far-reaching changes in the composition of all federal crimes. Had such a result been contemplated, it could hardly have escaped mention by a Court which numbered among its members one especially interested and informed concerning the importance of intent in common law crimes. This might be the more expected since the Behrman holding did call forth his dissent, in which Mr. Justice McReynolds and Mr. Justice Brandeis joined, omitting any such mention.

It was not until recently that the Court took occasion more explicitly to relate abandonment of the ingredient of intent not merely with considerations of expediency in obtaining convictions, nor with the malum prohibitumclassification of the crime, but with the peculiar nature and quality of the offense. We referred to " . . . a now familiar type of legislation whereby penalties serve as effective means of regulation", and continued,

"such legislation dispenses with the conventional requirement for criminal conduct -- awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger."

But we warned: "Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting." United States v. Dotterweich, 320 U. S. 277, 320 U. S. 280-281, 320 U. S. 284. 

Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static. The conclusion reached in the Balint and Behrman cases has our approval and adherence for the circumstances to which it was there applied. A quite different question here is whether we will expand the doctrine of crimes without intent to include those charged here.

Stealing, larceny, and its variants and equivalents were among the earliest offenses known to the law that existed before legislation; they are invasions of rights of property which stir a sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which, says Maitland, is ". . . as bad a word as you can give to man or thing." State courts of last resort, on whom fall the heaviest burden of interpreting criminal law in this country, have consistently retained the requirement of intent in larceny-type offenses. If any state has deviated, the exception has neither been called to our attention nor disclosed by our research.

Congress, therefore, omitted any express prescription of criminal intent from the enactment before us in the light of an unbroken course of judicial decision in all constituent states of the Union holding intent inherent in this class of offense, even when not expressed in a statute. Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whose definition the courts have no guidance except the Act. Because the offenses before this Court in the Balint and Behrmancases were of this latter class, we cannot accept them as authority for eliminating intent from offenses incorporated from the common law. Nor do exhaustive studies of state court cases disclose any well considered decisions applying the doctrine of crime without intent to such enacted common law offenses, although a few deviations are notable as illustrative of the danger inherent in the Government's contentions here.

The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common law crimes on judicial initiative.

The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.

We hold that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced.

II

It is suggested, however, that the history and purposes of § 641 imply something more affirmative as to elimination of intent from at least one of the offenses charged under it in this case. The argument does not contest that criminal intent is retained in the offenses of embezzlement, stealing and purloining, as incorporated into this section. But it is urged that Congress joined with those, as a new, separate and distinct offense, knowingly to convert government property, under circumstances which imply that it is an offense in which the mental element of intent is not necessary.

Congress has been alert to what often is a decisive function of some mental element in crime. It has seen fit to prescribe that an evil state of mind, described variously in one or more such terms as "intentional," "willful," "knowing," "fraudulent" or "malicious," will make criminal an otherwise indifferent act, or increase the degree of the offense or its punishment. Also, it has at times required a specific intent or purpose which will require some specialized knowledge or design for some evil beyond the common law intent to do injury. The law under some circumstances recognizes good faith or blameless intent as a defense, partial defense, or as an element to be considered in mitigation of punishment. And treason -- the one crime deemed grave enough for definition in our Constitution itself -- requires not only the duly witnessed overt act of aid and comfort to the enemy but also the mental element of disloyalty or adherence to the enemy. In view of the care that has been bestowed upon the subject, it is significant that we have not found, nor has our attention been directed to, any instance in which Congress has expressly eliminated the mental element from a crime taken over from the common law.

The section with which we are here concerned was enacted in 1948, as a consolidation of four former sections of Title 18, as adopted in 1940, which, in turn, were derived from two sections of the Revised Statutes. The pertinent legislative and judicial history of these antecedents, as well as of § 641, is footnoted. We find no other purpose in the 1948 reenactment than to collect from scattered sources crimes so kindred as to belong in one category. Not one of these had been interpreted to be a crime without intention, and no purpose to differentiate between them in the matter of intent is disclosed.

No inference that some were and some were not crimes of intention can be drawn from any difference in classification or punishment. Not one fits the congressional classification of the petty offense; each is, at its least, a misdemeanor, and if the amount involved is one hundred or more dollars each is a felony. If one crime without intent has been smuggled into a section whose dominant offenses do require intent, it was put in ill-fitting and compromising company. The Government apparently did not believe that conversion stood so alone when it drew this one-count indictment to charge that Morissette "did unlawfully, wilfully and knowingly steal and convert to his own use."

Congress, by the language of this section, has been at pains to incriminate only "knowing" conversions. But, at common law, there are unwitting acts which constitute conversions. In the civil tort, except for recovery of exemplary damages, the defendant's knowledge, intent, motive, mistake, and good faith are generally irrelevant. If one takes property which turns out to belong to another, his innocent intent will not shield him from making restitution or indemnity, for his well meaning may not be allowed to deprive another of his own.

Had the statute applied to conversions without qualification, it would have made crimes of all unwitting, inadvertent and unintended conversions. Knowledge, of course, is not identical with intent, and may not have been the most apt words of limitation. But knowing conversion requires more than knowledge that defendant was taking the property into his possession. He must have had knowledge of the facts, though not necessarily the law, that made the taking a conversion. In the case before us, whether the mental element that Congress required be spoken of as knowledge or as intent, would not seem to alter its bearing on guilt, for it is not apparent how Morissette could have knowingly or intentionally converted property that he did not know could be converted, as would be the case if it was, in fact, abandoned, or if he truly believed it to be abandoned and unwanted property.

It is said, and at first blush the claim has plausibility, that, if we construe the statute to require a mental element as part of criminal conversion, it becomes a meaningless duplication of the offense of stealing, and that conversion can be given meaning only by interpreting it to disregard intention. But here again a broader view of the evolution of these crimes throws a different light on the legislation.

It is not surprising if there is considerable overlapping in the embezzlement, stealing, purloining, and knowing conversion grouped in this statute. What has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class, and guilty men have escaped through the breaches. The books contain a surfeit of cases drawing fine distinctions between slightly different circumstances under which one may obtain wrongful advantages from another's property. The codifiers wanted to reach all such instances. Probably every stealing is a conversion, but certainly not every knowing conversion is a stealing. "To steal means to take away from one in lawful possession without right with the intention to keep wrongfully." (Italics added.) Irving Trust Co. v. Leff, 253 N.Y. 359, 364, 171 N.E. 569, 571. Conversion, however, may be consummated without any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one's custody for limited use. Money rightfully taken into one's custody may be converted without any intent to keep or embezzle it merely by commingling it with the custodian's own, if he was under a duty to keep it separate and intact. It is not difficult to think of intentional and knowing abuses and unauthorized uses of government property that might be knowing conversions but which could not be reached as embezzlement, stealing or purloining. Knowing conversion adds significantly to the range of protection of government property without interpreting it to punish unwitting conversions.

The purpose which we here attribute to Congress parallels that of codifiers of common law in England and in the States, and demonstrates that the serious problem in drafting such a statute is to avoid gaps and loopholes between offenses. It is significant that the English and State codifiers have tried to cover the same type of conduct that we are suggesting as the purpose of Congress here, without, however, departing from the common law tradition that these are crimes of intendment.

We find no grounds for inferring any affirmative instruction from Congress to eliminate intent from any offense with which this defendant was charged.

III

As we read the record, this case was tried on the theory that, even if criminal intent were essential, its presence (a) should be decided by the court (b) as a presumption of law, apparently conclusive, (c) predicated upon the isolated act of taking, rather than upon all of the circumstances. In each of these respects we believe the trial court was in error.

Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. State court authorities cited to the effect that intent is relevant in larcenous crimes are equally emphatic and uniform that it is a jury issue. The settled practice and its reason are well stated by Judge Andrews in People v. Flack, 125 N.Y. 324, 334, 26 N.E. 267, 270, 11 L.R.A. 807:

"It is alike the general rule of law and the dictate of natural justice that, to constitute guilt, there must be not only a wrongful act, but a criminal intention. Under our system (unless in exceptional cases), both must be found by the jury to justify a conviction for crime. However clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury. Jurors may be perverse, the ends of justice may be defeated by unrighteous verdicts; but so long as the functions of the judge and jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury. . . ."

It follows that the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a "presumption" a conclusion which a court thinks probable from given facts. The Supreme Court of Florida, for example, in a larceny case, from selected circumstances which are present in this case, has declared a presumption of exactly opposite effect from the one announced by the trial court here:

". . . But where the taking is open and there is no subsequent attempt to conceal the property, and no denial, but an avowal, of the taking, a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a conviction is authorized. . . ."

Kemp v. State, 146 Fla. 101, 104, 200 So. 368, 369.

We think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. Such incriminating presumptions are not to be improvised by the judiciary. Even congressional power to facilitate convictions by substituting presumptions for proof is not without limit. Tot v. United States, 319 U. S. 463.

Moreover, the conclusion supplied by presumption in this instance was one of intent to steal the casings, and it was based on the mere fact that defendant took them. The court thought the only question was, "Did he intend to take the property?" That the removal of them was a conscious and intentional act was admitted. But that isolated fact is not an adequate basis on which the jury should find the criminal intent to steal or knowingly convert, that is, wrongfully to deprive another of possession of property. Whether that intent existed, the jury must determine, nor only from the act of taking, but from that together with defendant's testimony and all of the surrounding circumstances.

Of course, the jury, considering Morissette's awareness that these casings were on government property, his failure to seek any permission for their removal, and his self-interest as a witness, might have disbelieved his profession of innocent intent and concluded that his assertion of a belief that the casings were abandoned was an afterthought. Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges. They might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk, and that lack of any conscious deprivation of property or intentional injury was indicated by Morissette's good character, the openness of the taking, crushing and transporting of the casings, and the candor with which it was all admitted. They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter.

Reversed.

MR. JUSTICE DOUGLAS concurs in the result.

MR. JUSTICE MINTON took no part in the consideration or decision of this case.

[Footnote 1]

341 U.S. 925.

[Footnote]

18 U.S.C. § 641, so far as pertinent, reads:

"Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof;"

"* * * *"

"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both."

[Footnote 3]

Morissette v. United States, 187 F.2d 427, 431.

[Footnote 4]

For a brief history and philosophy of this concept in Biblical, Greek, Roman, Continental and Anglo-American law see Radin, Intent, Criminal, 8 Encyc.Soc.Sci. 126. For more extensive treatment of the development in English Law, see 2 Pollock and Maitland, History of English Law, 448-511.

"Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong."

Pound, Introduction to Sayre, Cases on Criminal Law (1927).

[Footnote 5]

In Williams v. New York, 337 U. S. 241, 337 U. S. 248, we observed that

"Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence."

We also there referred to " . . . a prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime." Id. at 337 U. S. 247. Such ends would seem illusory if there were no mental element in crime.

[Footnote 6]

4 Bl.Comm. 21.

[Footnote 7]

Examples of these texts and their alterations in successive editions in consequence of evolution in the law of "public welfare offenses," as hereinafter recited, are traced in Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 66.

[Footnote 8]

Exceptions came to include sex offenses, such as rape, in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached age of consent. Absence of intent also involves such considerations as lack of understanding because of insanity, subnormal mentality, or infancy, lack of volition due to some actual compulsion, or that inferred from doctrines of coverture. Most extensive inroads upon the requirement of intention, however, are offenses of negligence, such as involuntary manslaughter or criminal negligence and the whole range of crimes arising from omission of duty. Cf. Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944).

[Footnote 9]

Holmes, The Common Law, considers intent in the chapter on The Criminal Law, and earlier makes the pithy observation: "Even a dog distinguishes between being stumbled over and being kicked." P. 3. Radin, Intent, Criminal, 8 Encyc.Soc.Sci. 126, 127, points out that in American law "mens rea is not so readily constituted from any wrongful act" as elsewhere.

[Footnote 10]

In the Balint case, Chief Justice Taft recognized this, but rather overstated it by making no allowance for exceptions such as those mentioned in n 8.

[Footnote 11]

This trend and its causes, advantages and dangers have been considered by Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55; Hall, Prolegomena to a Science of Criminal Law, 89 U. of Pa.L.Rev. 549; Hall, Interrelations of Criminal Law and Torts, 43 Col.L.Rev. 753, 967.

[Footnote 12]

The changes in English law are illustrated by Nineteenth Century English cases. In 1814, it was held that one could not be convicted of selling impure foods unless he was aware of the impurities. Rex v. Dixon, 3 M. & S. 11 (K.B.1814). However, thirty-two years later, in an action to enforce a statutory forfeiture for possession of adulterated tobacco, the respondent was held liable even though he had no knowledge of, or cause to suspect, the adulteration. Countering respondent's arguments, Baron Parke said,

"It is very true that, in particular instances, it may produce mischief, because an innocent man may suffer from his want of care in not examining the tobacco he has received, and not taking a warranty; but the public inconvenience would be much greater if, in every case, the officers were obliged to prove knowledge. They would be very seldom able to do so."

Regina v. Woodrow, 15 M. & W. 404, 417 (Exch. 1846). Convenience of the prosecution thus emerged as a rationale. In 1866, a quarry owner was held liable for the nuisance caused by his workmen dumping refuse into a river, in spite of his plea that he played no active part in the management of the business and knew nothing about the dumping involved. His knowledge or lack of it was deemed irrelevant. Regina v. Stephens, L.R. 1 Q.B. 702 (1866). Bishop, referring to this decision, says,

"The doctrine of this English case may almost be deemed new in the criminal law. . . . And, properly limited, the doctrine is eminently worthy to be followed hereafter."

1 Bishop, New Criminal Law (8th ed. 1892) § 1076. After these decisions, statutes prohibiting the sale of impure or adulterated food were enacted. Adulteration of Food Act (35 & 36 Vict. c. 74, § 2 (1872)); Sale of Food and Drugs Act of 1875 (38 & 39 Vict. c. 63). A conviction under the former was sustained in a holding that no guilty knowledge or intent need be proved in a prosecution for the sale of adulterated butter, Fizpatrick v. Kelly, L.R. 8 Q.B. 337 (1873), and in Betts v. Armstead, L.R. 20 Q.B.D. 771 (1888), involving the latter statute, it was held that there was no need for a showing that the accused had knowledge that his product did not measure up to the statutory specifications.

[Footnote 13]

The development of strict criminal liability regardless of intent has been roughly paralleled by an evolution of a strict civil liability for consequences regardless of fault in certain relationships, as shown by Workmen's Compensation Acts, and by vicarious liability for fault of others as evidenced by various Motor Vehicle Acts.

[Footnote 14]

Consequences of a general abolition of intent as an ingredient of serious crimes have aroused the concern of responsible and disinterested students of penology. Of course, they would not justify judicial disregard of a clear command to that effect from Congress, but they do admonish us to caution in assuming that Congress, without clear expression, intends in any instance to do so.

Radin, Intent, Criminal, 8 Encyc.Soc.Sci. 126, 130, says,

". . . as long as in popular belief intention and the freedom of the will are taken as axiomatic, no penal system that negates the mental element can find general acceptance. It is vital to retain public support of methods of dealing with crime."

Again,

"The question of criminal intent will probably always have something of an academic taint. Nevertheless, the fact remains that the determination of the boundary between intent and negligence spells freedom or condemnation for thousands of individuals. The watchfulness of the jurist justifies itself at present in its insistence upon the examination of the mind of each individual offender."

Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 56, says:

"To inflict substantial punishment upon one who is morally entirely innocent, who caused injury through reasonable mistake or pure accident, would so outrage the feelings of the community as to nullify its own enforcement."

Hall, Prolegomena to a Science of Criminal Law, 89 U. of Pa.L.Rev. 549, 569, appears somewhat less disturbed by the trend, if properly limited, but, as to so-called public welfare crimes, suggests that

"There is no reason to continue to believe that the present mode of dealing with these offenses is the best solution obtainable, or that we must be content with this sacrifice of established principles. The raising of a presumption of knowledge might be an improvement."

(Italics added.)

In Felton v. United States, 96 U. S. 699, the Court said,

"But the law at the same time is not so unreasonable as to attach culpability, and consequently to impose punishment, where there is no intention to evade its provisions. . . ."

[Footnote 15]

Holmes, The Common Law.

[Footnote 16]

For the place of the mental element in offenses against the revenues, see Spies v. United States, 317 U. S. 492; United States v. Scharton, 285 U. S. 518.

[Footnote 17]

2 Russell on Crime (10th ed., Turner, 1950) 1037.

[Footnote 18]

2 Pollock & Maitland, History of English Law, 465.

[Footnote 19]

Examples of decision in diverse jurisdictions may be culled from any digest. Most nearly in point are Johnson v. State, 36 Tex. 375, holding that to take a horse running at large on the range is not larceny in the absence of an intent to deprive an owner of his property; Jordan v. State, 107 Tex.Cr.R. 414, 296 S.W. 585, that, if at the time of taking parts from an automobile, the accused believed that the car had been abandoned by its owner, he should be acquitted; Fetkenhauer v. State, 112 Wis. 491, 88 N.W. 294, that an honest, although mistaken, belief by defendant that he had permission to take property should be considered by the jury; and Devine v. People, 20 Hun, N.Y., 98, holding that a claim that an act was only a practical joke must be weighed against an admitted taking of property.

Others of like purport are Farzley v. State, 231 Ala. 60, 163 So. 394; Nickerson v. State, 22 Ala.App. 640, 119 So. 243; People v. Williams, 73 Cal. App. 2d 154, 166 P.2d 63; Schiff v. People, 111 Colo. 333, 141 P.2d 892; Kemp v. State, 146 Fla. 101, 200 So. 368; Perdew v. Commonwealth, 260 Ky. 638, 86 S.W.2d 534, holding that appropriation by a finder of lost property cannot constitute larceny in the absence of intent; People v. Shaunding, 268 Mich. 218, 255 N.W. 770; People v. Will, 289 N.Y. 413, 46 N.E.2d 498; Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y. 303, 146 N.E. 432; Thomas v. Kessler, 334 Pa. 7, 5 A.2d 187; Barnes v. State, 145 Tex.Cr.R. 131, 166 S.W.2d 708; Sandel v. State, 131 Tex.Cr.R. 132, 97 S.W.2d 225; Weeks v. State, 114 Tex.Cr.R. 406, 25 S.W.2d 855; Heskew v. State, 18 Tex.App. 275; Page v. Commonwealth, 148 Va. 733, 138 S.E. 510, holding reversible error to exclude evidence having a tendency to throw light on the question of the bona fides of one accused of larceny; Butts v. Commonwealth, 145 Va. 800, 133 S.E. 764; State v. Levy, 113 Vt. 459, 35 A.2d 853, holding that the taking of another's property in good faith by inadvertence or mistake does not constitute larceny.

[Footnote 20]

Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 73, 84, cites and classifies a large number of cases and concludes that they fall roughly into subdivisions of (1) illegal sales of intoxicating liquor, (2) sales of impure or adulterated food or drugs, (3) sales of misbranded articles, (4) violations of anti-narcotic Acts, (5) criminal nuisances, (6) violations of traffic regulations, (7) violations of motor vehicle laws, and (8) violations of general police regulations, passed for the safety, health or wellbeing of the community.

[Footnote 21]

Sayre points out that, in criminal syndicalism or sedition cases, where the pressure to convict is strong, it has been accomplished by dispensing with the element of intent, in some instances by analogy with the public welfare offense. Examples are State v. Hennessy, 114 Wash. 351, 195 P. 211; People v. Ruthenberg, 229 Mich. 315, 201 N.W. 358; State v. Kahn, 56 Mont. 108, 182 P. 107; State v. Smith, 57 Mont. 563, 190 P. 107. Compare People v. McClennegen, 195 Cal. 445, 234 P. 91. This although intent is of the very essence of offenses based on disloyalty. Cf. Cramer v. United States, 325 U. S. 1; Haupt v. United States, 330 U. S. 631, where innocence of intention will defeat a charge even of treason.

[Footnote 22]

United States v. Hudson and Goodwin, 7 Cranch 32; United States v. Gooding, 12 Wheat. 460.

[Footnote 23]

18 U.S.C. § 81, Arson: " . . . willfully and maliciously . . . "; 18 U.S.C. § 113, Assault: "(a) . . . with intent to commit murder or rape. . . . (b) . . . with intent to commit any felony, except murder or rape . . . "; 18 U.S.C. § 152, Bankruptcy -- concealment of assets, false oaths and claims, bribery: " . . . knowingly and fraudulently . . . "; 18 U.S.C. § 201, Bribery and Graft: " . . . with intent to influence . . . "; 18 U.S.C. § 471, Counterfeiting and Forgery: " . . . with intent to defraud . . . "; 18 U.S.C. § 594, Intimidation of voters: " . . . for the purpose of . . . "; 18 U.S.C. § 1072, Concealing escaped prisoner: " . . . willfully . . . "; 61 Stat. 151, 29 U.S.C. § 162, Interference with a member of the National Labor Relations Board or an agent of the Board in his performance of his duties: " . . . willfully . . . "; 52 Stat. 1069, 29 U.S.C. § 216(a), Violations of provisions of Fair Labor Standards Act: " . . . willfully . . . "; 37 Stat. 251, 21 U.S.C. § 23, Packing or selling misbranded barrels of apples: " . . . knowingly. . . ."

[Footnote 24]

18 U.S.C. § 1112, Manslaughter, " . . . the unlawful killing of a human being without malice", if voluntary, carries a maximum penalty of imprisonment not to exceed ten years. If the killing is "with malice aforethought", the crime is murder, 18 U.S.C. § 1111, and, if of the first degree, punishable by death or life imprisonment, or, if of the second degree, punishable by imprisonment for any term of years or life.

[Footnote 25]

18 U.S.C. § 242; Screws v. United States, 325 U. S. 91.

[Footnote 26]

I.R.C. §§ 145(a), 145(b), 53 Stat. 62, as amended, 26 U.S.C. §§ 145(a), 145(b), as construed in Spies v. United States,317 U. S. 492; 52 Stat. 1069, 29 U.S.C. § 216(a), stating the criminal sanctions for violations of the Fair Labor Standards Act, provides that:

"No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection."

N.Y. Penal Law § 1306 provides that,

"Upon an indictment for larceny, it is a sufficient defense that the property was appropriated openly and avowedly, under a claim of title preferred in good faith, even though such claim is untenable."

[Footnote 27]

U.S.Const. Art. III, § 3, cl. 1.

This provision was to prevent incrimination of mere mental operations such as "compassing" the death of the King. See Cramer v. United States, 325 U. S. 1. To hold that a mental element is necessary to a crime is, of course, not to say that it is all that is necessary.

[Footnote 28]

The Reviser's Note to 18 U.S.C. § 641 states that it is derived from 18 U.S.C. (1940 ed.) §§ 82, 87, 100, and 101 which, in turn, are from Rev.Stat. §§ 5438 and 5439. We shall consider only the 1940 code sections and their interpretations.

18 U.S.C. (1940 ed.) § 82 reads:

"Whoever shall take and carry away or take for his use, or for the use of another, with intent to steal or purloin . . . any property of the United States . . . shall be punished as follows. . . ."

In United States v. Anderson, 45 F. Supp. 943, a prosecution for conspiracy to violate that section, District Judge Yankwich said:

"It has been before the courts in very few cases. But such courts as have had cases under it, including our own Ninth Circuit Court of Appeals, have held that the object of the section is to introduce the crime of larceny into the Federal Criminal Code."

"In Frach v. Mass, 9 Cir., 1939, 106 F.2d 820, 821, we find these words: 'Larceny of property of the United States is made a crime by 18 U.S.C. § 82.'"

"This means of course, that, in interpreting the statute, we may apply the principles governing the common law crime of larceny, as interpreted by the courts of various states."

45 F. Supp. at 945.

United States v. Trinder, 1 F. Supp. 659, was a prosecution of a group of boys, under § 82, for "stealing" a government automobile. They had taken it for a joy ride without permission, fully intending to return it when they were through. Their plans went awry when the auto came to grief against a telephone pole. In dismissing the complaint, the District Judge said:

"Upon principle and authority, there was no stealing, but merely trespass; secret borrowing. At common law and likewise by the federal statute (18 U.S.C. § 82) adopting common law terms, stealing in general imports larceny; that is, felonious taking and intent to permanently deprive the owner of his property."

1 F. Supp. at 660.

18 U.S.C. (1940 ed.) § 87, entitled "Embezzling arms and stores", provides:

"Whoever shall steal, embezzle, or knowingly apply to his own use, or unlawfully sell, convey, or dispose of, any ordnance, arms, ammunition, clothing, subsistence, stores, money, or other property of the United States, furnished or to be used for the military or naval service, shall be punished as prescribed in sections 80 and 82 to 86 of this title."

No cases appear to have been decided relating to the element of intent in the acts proscribed in that section.

18 U.S.C. (1940 ed.) § 100, "Embezzling public moneys or other property", states that:

"Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be fined not more than $5,000, or imprisoned not more than five years, or both."

The only noted case of consequence is Crabb v. Zerbst, 99 F.2d 562, to which the dissent below referred at some length. The appellant there was convicted of feloniously taking and carrying away certain personal property of the United States in violation of § 46 of the Criminal Code, 18 U.S.C. (1940 ed.) § 99, and had been sentenced to seven years' imprisonment. He argued that the five-year limitation of sentence in 18 U.S.C. (1940 ed.) § 100 for stealing property of the United States reduced the ten-year limitation in § 99 for feloniously taking and carrying away property of the United States to five years also.

The Court of Appeals rejected his argument, holding that the crime of "stealing" in § 100 was separate and distinct from the offense specified in § 99, on the ground that § 100 was a broadening of the common law crime of larceny to foreclose any avenue by which one might, in the process of pleading, escape conviction for one offense by proving that he had committed another only a hair's breadth different.

In the course of its opinion, it advanced the following pertinent observations:

"That felonious taking and carrying away of property which may be the subject of the offense constitutes the common law offense of larceny cannot be disputed. . . . However, it is doubtful if at common law any fixed definition or formula (as to the meaning of 'larceny') was not strained in its application to some of the cases clearly constituting the offense. Modern criminal codes treat the offense in various ways. Some define the offense by following the old cases, and are merely declaratory of the common law, while others have broadened the offense to include offenses previously known as embezzlement, false pretenses, and even felonious breaches of trust."

"As pointed out above, the modern tendency is to broaden the offense of larceny, by whatever name it may be called, to include such related offenses as would tend to complicate prosecutions under strict pleading and practice. In some of these statutes, the offense is denominated 'theft' or 'stealing.' No statute offers a clearer example of compromise between the common law and the modern code than the two sections here involved. Section 46 [18 U.S.C. § 99 (1940 ed.)] deals with robbery and larceny, the description of the latter being taken from the common law. Section 47 [18 U.S.C. § 100 (1940 ed.)] denounces the related offenses which might be included with those described in section 46 under a code practice seeking to avoid the pitfalls of technical pleading. In it, the offense of embezzlement is included by name, without definition. Then, to cover such cases as may shade into larceny, as well as any new situation which may arise under changing modern conditions and not envisioned under the common law, it adds the words steal or purloin. . . . Stealing, having no common law definition to restrict its meaning as an offense, is commonly used to denote any dishonest transaction whereby one person obtains that which rightfully belongs to another and deprives the owner of the rights and benefits of ownership, but may or may not involve the element of stealth usually attributed to the word purloin. . . . Thus, in any case involving larceny as defined by the common law, section 46 [18 U.S.C. § 99 (1940 ed.)] would apply. Where the offense is embezzlement, or its nature so doubtful as to fall between larceny and embezzlement, it may be prosecuted under section 47 [18 U.S.C. § 100 (1940 ed.)]."

99 F.2d at 564-565.

The reference in Crabb v. Zerbst to 18 U.S.C. (1940 ed.) § 99, the robbery and larceny statute then operative, suggests examination of its successor in today's code. For purpose of clarification, that section states that:

"Whoever shall rob another of any kind or description of personal property belonging to the United States, or shall feloniously take and carry away the same, shall be fined not more than $5,000, or imprisoned not more than ten years, or both."

The Reviser's Note to 18 U.S.C. § 641, makes no mention of it as a successor to that section. The present robbery statute is 18 U.S.C. § 2112, "Personal property of United States", providing that:

"Whoever robs another of any kind or description of personal property belonging to the United States, shall be imprisoned not more than fifteen years."

The Reviser's Note to that section recites that it is derived from § 99 of the 1940 Code, and "That portion of said section 99 relating to felonious taking was omitted as covered by section 641 of this title", which makes it clear that, notwithstanding the absence of any reference to 18 U.S.C. (1940 ed.) § 99 in the Note to 18 U.S.C. § 641, the crime of larceny by a felonious taking and carrying away has been transported directly from the former into the latter.

18 U.S.C. (1940 ed.) § 101 is the forerunner of that part of present § 641 dealing with receiving stolen property, and has no application to the problem at hand.

The history of § 641 demonstrates that it was to apply to acts which constituted larceny or embezzlement at common law and also acts which shade into those crimes but which, most strictly considered, might not be found to fit their fixed definitions. It is also pertinent to note that it renders one subject to its penalty who "knowingly converts to his use" property of the United States. The word "converts" does not appear in any of its predecessors. 18 U.S.C. (1940 ed.) § 82 is applicable to

"Whoever shall take and carry away or take for his use, or for the use of another, with intent to steal or purloin . . . any property of the United States . . . shall be punished as follows. . . ."

18 U.S.C. (1940 ed.) § 87 uses the words "knowingly apply to his own use". Neither 18 U.S.C. (1940 ed.) §§ 99, 100, nor 101 has any words resembling "knowingly converts to his own use." The 1948 Revision was not intended to create new crimes, but to recodify those then in existence. We find no suggestion that a guilty intent was not a part of each crime now embodied in § 641.

[Footnote 29]

18 U.S.C. §§ 1, 641.

[Footnote 30]

Had the indictment been limited to a charge in the words of the statute, it would have been defective if, in the light of the common law, the statute itself failed to set forth expressly, fully, and clearly all elements necessary to constitute the offense. United States v. Carll, 105 U. S. 611.

[Footnote 31]

Harker v. Dement, 9 Gill (Md.), 7, 52 Am.Dec. 670 (1850); Railroad Co. v. O'Donnell, 49 Ohio St. 489, 32 N.E. 476 (1892). The rationale underlying such cases is that, when one clearly assumes the rights of ownership over property of another, no proof of intent to convert is necessary. It has even been held that one may be held liable in conversion even though he reasonably supposed that he had a legal right to the property in question. Row v. Home Sav. Bank, 306 Mass. 522, 29 N.E.2d 552 (1940). For other cases in the same vein, see those collected in 53 Am.Jur. 852-854. These authorities leave no doubt that Morissette could be held liable for a civil conversion for his taking of the property here involved, and the instructions to the jury might have been appropriate in such a civil action. This assumes, of course, that actual abandonment was not proven, a matter which petitioner should be allowed to prove if he can.

[Footnote 32]

The Larceny Act of 1916, 6 & 7 Geo. V, c. 50, an Act "to consolidate and simplify the Law relating to Larceny triable on Indictment and Kindred Offences," provides:

"1. For the purposes of this Act -- "

"(1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:"

"Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner. . . ."

For the growth and development of the crime of larceny in England, see 2 Russell on Crime (10th ed., Turner, 1950), 1037-1222, from which the material above was taken.

[Footnote 33]

N.Y.Penal Code, § 1290, defines larceny as follows:

"A person who, with the intent to deprive or defraud another of the use and benefit of property or to appropriate the same to the use of the taker, or of any other person other than the true owner, wrongfully takes, obtains or withholds, by any means whatever, from the possession of the true owner or of any other person any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind, steals such property, and is guilty of larceny."

The same section provides further that it shall be no defense to a prosecution that:

"2. The accused in the first instance obtained possession of, or title to, such property lawfully, provided he subsequently wrongfully withheld or appropriated such property to his own use or the use of any person not entitled to the use and benefit of such property. . . ."

The Historical Note to that section discloses that it represents an attempt to abolish the distinctions between kinds of larcenies. Laws 1942, c. 732, § 1, provided:

"It is hereby declared as the public policy of the state that the best interests of the people of the state will be served, and confusion and injustice avoided, by eliminating and abolishing the distinctions which have hitherto differentiated one sort of theft from another, each of which, under section twelve hundred and ninety of the penal law, was denominated a larceny, to-wit: common law larceny by asportation, common law larceny by trick and device, obtaining property by false pretenses, and embezzlement."

[Footnote 34]

Cf. Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47 Harv.L.Rev. 59; Morgan, Some Observations Concerning Presumption, 44 Harv.L.Rev. 906.

Notes & Questions

1.    When interpreting statutes, the Supreme Court sometimes brings to bear certain presumptions that reflect broader judicial concerns or policy goals. Here, the Court notes that "where Congress borrows terms of art...[from common law], it presumably knows and adopts the [general meanings surrounding those borrowed words]." And, "absent contrary direction," Congress adopts them without departing from such "widely accepted definitions." Is this a fair presumption? What would a clear "contrary direction" look like? Was this case an example of bad statutory drafting? How would the court in Nations speak to this? 

2.    The Court also gestures at the aims of punishment in this case, when it says that requiring a mens rea component to a crime enables "deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution." A crime without a mens rea element, the Court continues in a footnote, would make the ends of reformation and rehabilitation "seem illusory." What do you make of this rationale (that rehabilitation is the dominant objective of public prosecution)? By the same token, do you think strict liability crimes are mainly retributive? And would simply adding a mens rea element curb the overall retributive impulse of punishing for a crime? 

3.    The facts in Morissette revolve around a criminal conviction, but the court gestures toward a common form of strict liability in the civil context, "public welfare offenses." As the court describes: 

These cases do not fit neatly into any of such accepted classifications of common law offenses, such as those against the state, the person, property, or public morals....Many [public welfare] violations...result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted.

The case also cites a seminal 1933 article by Harvard Law professor Francis Sayre, listing some categories of public welfare offenses:

(1) illegal sales of intoxicating liquor, (2) sales of impure or adulterated food or drugs, (3) sales of misbranded articles, (4) violations of antinarcotic Acts, (5) criminal nuisances, (6) violations of traffic regulations, (7) violations of motor-vehicle laws, and (8) violations of general police regulations, passed for the safety, health or well-being of the community." 

Id. at n. 20 (citing Francis B. Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 73, 84 (1933)). 

What are some good examples of crimes that could be classified as "public welfare offenses"? Do you think these should be crimes that call for a mental element, or not? 

4.    Recall the State's burden in Nations of having to prove "actual" knowledge or how Conley overcomes the difficulty of proving an "intentional" state of mind by allowing an inference based on the surrounding circumstances. Strict liability would avoid those problems since there would be no need to prove intent. Consider this elided portion from the case, discussing how strict criminal liability in nineteenth-century English law was premised on lowering the burden of proof: 

In 1814,...one could not be convicted of selling impure foods unless he was aware of the impurities. Rex v. Dixon, 3 M. & S. 11 (K. B. 1814). However, thirty-two years later, in an action to enforce a statutory forfeiture for possession of adulterated tobacco, the respondent was held liable even though he had no knowledge of, or cause to suspect, the adulteration....[The court justified its holding under the rationale that] the public inconvenience would be much greater, if in every case, the officers were obliged to prove knowledge. They would be very seldom able to do so.” Regina v. Woodrow, 15 M. & W. 404, 417 (Exch. 1846)....In 1866, a quarry owner was held liable for the nuisance caused by his workmen dumping refuse into a river, in spite of his plea that he played no active part in the management of the business and knew nothing about the dumping involved. His knowledge or lack of it was deemed irrelevant. Regina v. Stephens, L. R. 1 Q. B. 702 (1866)....After these decisions, statutes prohibiting the sale of impure or adulterated food were enacted [that reinforced these holdings that no knowledge/intent was required]. 

Morissette, 342 U.S. at 253 n.12. 

How important is it for some crimes to entail a lighter prosectorial burden? What would be some benefits and costs for doing so? 

5.    The court in Morissette tells us there is a strong presumption disfavoring strict liability in criminal law. At the same time, recall that the Miles court effectively eliminates the need to show the defendant knew he was possessing the exact drug he is charged with possessing. How do you reconcile the Miles holding with the general statement in Morissette about courts disfavoring strict liability unless clearly specified? Is Morrisette still a correct description of the law, especially since the sentences for drug offenses are often longer than those for theft?

Problems on strict liability 

Problem 1: Donna parks her car and inserts enough money in the meter for one hour before going to her meeting. She checks her watch regularly and promptly leaves at the one-hour mark to feed the meter again. Unfortunately, her watch was running slow and she received a ticket. The offense is punishable by a $50 fine. If she was found guilty of this offense, what type of statute governed this offense? 

Problem 2: D runs a gas station convenience store, where D sells some groceries, including eggs. Last week, an officer purchased rotten eggs. Later D was fined $100 after being charged with the federal crime of selling adulterated eggs in interstate commerce. 

21 U.S.C. 1037: (1) No person shall buy, sell, or transport, … in any business in commerce any restricted eggs capable of use as human food, except as authorized by regulations … to assure that only eggs it for human food are used for such purpose.

Which of the following might work as a defense?

1. I did not know the eggs were rotten
2. I did not know the law prohibited selling rotten eggs
3. I gave the customer notice by displaying the expiration date
4. D does not have a defense

Problem 3: D was pulled over for speeding in California, after an officer clocked D driving 85mph in a 55mph zone. D explained that they were driving their feverish grandmother, who was laying down in the back seat, to the emergency room. The offense is punishable by a $1000 ticket. 

Is D guilty? Should D be prosecuted? This type of issue is covered under the "choice of evils" doctrine, which will cover in the Defenses chapter. 

We have seen that in the case of individuals and small businesses, courts are reluctant to impose crimnal liability without proof of a culpable mental state. Courts have demonstrated a tendency to construe a statute to create strict liability where the legislative intent to do so is clear. As you study these cases, imagine what factors might make a court more or less likely to find that a statute has created strict criminal liability.

CHIEF JUSTICE TAFT delivered the opinion of the court.

This is a writ of error to the District Court under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246.  Defendants in error were indicted for a violation of the Narcotic Act of December 17, 1914, c. 1, 38 Stat. 785.  The indictment charged them with unlawfully selling to another a certain amount of a derivative of opium and a certain amount of a derivative of coca leaves, not in pursuance of any written order on a form issued in blank for that purpose by the Commissioner of Internal Revenue, contrary to the provisions of § 2 of the act.  The defendants demurred to the indictment on the ground that it failed to charge that they had sold the inhibited drugs knowing them to be such.  The statute does not make such knowledge an element of the offense.  The District Court sustained the demurrer and quashed the indictment. The correctness of this ruling is the question before us.

While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it (Reg. v. Sleep, 8 Cox C.C. 472), there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement.  It is a question of legislative intent to be construed by the court.  It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled in Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 69, 70, in which it was held that in the prohibition or punishment of particular acts, the State may in the maintenance of a public policy provide "that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance." Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se. [string citation omitted] So, too, in the collection of taxes, the importance to the public of their collection leads the legislature to impose on the taxpayer the burden of finding out the facts upon which his liability to pay depends and meeting it at the peril of punishment.  Regina v. Woodrow, 15 M. & W. 404; Bruhn v. Rex, [1909] A.C. 317.  Again where one deals with others and his mere negligence may be dangerous to them, as in selling diseased food or poison, the policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells.  Hobbs v. Winchester Corporation, [1910] 2 K.B. 471, 483.

The question before us, therefore, is one of the construction of the statute and of inference of the intent of Congress.  The Narcotic Act has been held by this court to be a taxing act with the incidental purpose of minimizing the spread of addiction to the use of poisonous and demoralizing drugs.  United States v. Doremus, 249 U.S. 86, 94; United States v. Jin Fuey Moy, 241 U.S. 394, 402.

Section 2 of the Narcotic Act, 38 Stat. 786, we give in part in the margin. ¹ It is very  evident from a reading of  it that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic.  Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him.  Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided.  Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof of knowledge contributed to this conclusion.  We think the demurrer to the indictment should have been overruled.

Judgment reversed.

1. JUSTICE CLARKE took no part in this decision.

End of Document

¹ Part of § 2 of an act entitled An Act To provide for the registration of, with collectors of internal revenue, and to impose a special tax upon all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations, and for other purposes, approved December 17, 1914, 38 Stat. 785, 786:

Sec. 2.  That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue.  Every person who shall accept any such order, and in pursuance thereof shall sell, barter, exchange, or give away any of the aforesaid drugs, shall preserve such order for a period of two years in such a way as to be readily accessible to inspection by any officer, agent, or employee of the Treasury Department duly authorized for that purpose, and the State, Territorial, District, municipal, and insular officials named in section five of this Act.  Every person who shall give an order as herein provided to any other person for any of the aforesaid drugs shall, at or before the time of giving such order, make or cause to be made a duplicate thereof on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue, and in case of the acceptance of such order, shall preserve such duplicate for said period of two years in such a way as to be readily accessible to inspection by the officers, agents, employees, and officials hereinbefore mentioned.

JUSTICE FRANKFURTER delivered the opinion of the Court.

This was a prosecution begun by two informations, consolidated for trial, charging Buffalo Pharmacal Company, Inc., and Dotterweich, its president and general manager, with violations of the Act of Congress of June 25, 1938, c. 675, 52 Stat. 1040, 21 U. S. C. §§ 301-392, known as the Federal Food, Drug, and Cosmetic Act. The Company, a jobber in drugs, purchased them from their manufacturers and shipped them, repacked under its own label, in interstate commerce. (No question is raised in this case regarding the implications that may properly arise when, although the manufacturer gives the jobber a guaranty, the latter through his own label makes representations.) The informations were based on § 301 of that Act (21 U. S. C. § 331), paragraph (a) of which prohibits "The introduction or delivery for introduction into interstate commerce of any . . . drug . . . that is adulterated or misbranded." "Any person" violating this provision is, by paragraph (a) of § 303 (21 U. S. C. § 333), made "guilty of a misdemeanor." Three counts went to the jury -- two, for shipping misbranded drugs in interstate commerce, and a third, for so shipping an adulterated drug.  The jury disagreed as to the corporation and found Dotterweich guilty on all three counts.  We start with the finding of the Circuit Court of Appeals that the evidence was adequate to support the verdict of adulteration and misbranding.  131 F.2d 500, 502.

***** Equally baseless is the claim of Dotterweich that, having failed to find the corporation guilty, the jury could not find him guilty.  Whether the jury's verdict was the result of carelessness or compromise or a belief that the responsible individual should suffer the penalty instead of merely increasing, as it were, the cost of running the business of the corporation, is immaterial.  Juries may indulge in precisely such motives or vagaries.  Dunn v. United States, 284 U.S. 390.

And so we are brought to our real problem.  The Circuit Court of Appeals, one judge dissenting, reversed the conviction on the ground that only the corporation was the "person" subject to prosecution unless, perchance, Buffalo Pharmacal was a counterfeit corporation serving as a screen for Dotterweich.  On that issue, after rehearing, it remanded the cause for a new trial.  We then brought the case here, on the Government's petition for certiorari, 318 U.S. 753, because this construction raised questions of importance in the enforcement of the Federal Food, Drug, and Cosmetic Act.

The court below drew its conclusion not from the provisions defining the offenses on which this prosecution was based (§§ 301 (a) and 303 (a)), but from the terms of § 303 (c).  That section affords immunity from prosecution if certain conditions are satisfied.  The condition relevant to this case is a guaranty from the seller of the innocence of his product.  So far as here relevant, the provision for an immunizing guaranty is as follows:

"No person shall be subject to the penalties of subsection (a) of this section . . . (2) for having violated section 301 (a) or (d), if he establishes a guaranty or undertaking signed by, and containing the name and address of, the person residing in the United States from whom he received in good faith the article, to the effect, in case of an alleged violation of section 301 (a), that such article is not adulterated or misbranded, within the meaning of this Act, designating this Act . . ."

The Circuit Court of Appeals found it "difficult to believe that Congress expected anyone except the principal to get such a guaranty, or to make the guilt of an agent depend upon whether his employer had gotten one." 131 F.2d 500, 503. And so it cut down the scope of the penalizing provisions of the Act to the restrictive view, as a matter of language and policy, it took of the relieving effect of a guaranty.

The guaranty clause cannot be read in isolation.  The Food and Drugs Act of 1906 was an exertion by Congress of its power to keep impure and adulterated food and drugs out of the channels of commerce.  By the Act of 1938, Congress extended the range of its control over illicit and noxious articles and stiffened the penalties for disobedience.  The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection.  Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words.  See Hipolite Egg Co. v. United States, 220 U.S. 45, 57, and McDermott v. Wisconsin, 228 U.S. 115, 128. The prosecution to which Dotterweich was subjected is based on a now familiar type of legislation whereby penalties serve as effective means of regulation.  Such legislation dispenses with the conventional requirement for criminal conduct -- awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.  United States v. Balint, 258 U.S. 250. And so it is clear that shipments like those now in issue are "punished by the statute if the article is misbranded [or adulterated], and that the article may be misbranded [or adulterated] without  any conscious fraud at all.  It was natural enough to throw this risk on shippers with regard to the identity of their wares . . ." United States v. Johnson, 221 U.S. 488, 497-98.

****

The offense is committed, unless the enterprise which they are serving enjoys the immunity of a guaranty, by all who do have such a responsible share in the furtherance of the transaction which the statute outlaws, namely, to put into the stream of interstate commerce adulterated or misbranded drugs.  Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting.  Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless.

It would be too treacherous to define or even to indicate by way of illustration the class of employees which stands in such a responsible relation.  To attempt a formula embracing the variety of conduct whereby persons may responsibly contribute in furthering a transaction forbidden by an Act of Congress, to wit, to send illicit goods across state lines, would be mischievous futility.  In such matters the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries must be trusted.  Our system of criminal justice necessarily depends on "conscience and circumspection in prosecuting officers," Nash v. United States, 229 U.S. 373, 378, even when the consequences are far more drastic than they are under the provision of law before us.  See United States v. Balint, supra (involving a maximum sentence of five years).  For present purpose it suffices to say that in what the defense characterized as "a very fair charge" the District Court properly left the question of the responsibility of Dotterweich for the shipment to the jury, and there was sufficient evidence to support its verdict.

Reversed. 

CHIEF JUSTICE BURGER delivered the opinion of the Court.

 We granted certiorari to consider whether the jury instructions in the prosecution of a corporate officer under § 301 (k) of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1042, as amended, 21 U.S.C.  § 331 (k), were appropriate under United States  v. Dotterweich,  320 U.S. 277 (1943).

Acme Markets, Inc., is a national retail food chain with approximately 36,000 employees, 874 retail outlets, 12 general warehouses, and four special warehouses. Its headquarters, including the office of the president, respondent Park, who is chief executive officer of the corporation, are located in Philadelphia, Pa. In a five-count information filed in the United States District Court for the District of Maryland, the Government charged Acme and respondent with violations of the Federal Food, Drug, and Cosmetic Act. Each count of the information alleged that the defendants had received food that had been shipped in interstate commerce and that, while the food was being held for sale in Acme's Baltimore warehouse following shipment in interstate commerce, they caused it to be held in a building accessible to rodents and to be exposed to contamination by rodents. These acts were alleged to have resulted in the food's being adulterated within the meaning of 21 U.S.C.  §§ 342 (a)(3) and (4), ¹ in violation of 21 U.S.C.  § 331 (k). ²

Acme pleaded guilty to each count of the information. Respondent pleaded not guilty. The evidence at trial ³ demonstrated that in April 1970 the Food and Drug Administration (FDA) advised respondent by letter of insanitary conditions in Acme's Philadelphia warehouse. In 1971 the FDA found that similar conditions existed in the firm's Baltimore warehouse. An FDA consumer safety officer testified concerning evidence of rodent infestation and other insanitary conditions discovered during a 12-day inspection of the Baltimore warehouse in November and December 1971. ⁴ He also related that a second inspection of the warehouse had been conducted in March 1972. ⁵ On that occasion the inspectors found that there had been improvement in the sanitary conditions, but that "there was still evidence of rodent activity in the building and in the warehouses and we found some rodent-contaminated lots of food items." App. 23.

The Government also presented testimony by the Chief of Compliance of the FDA's Baltimore office, who informed respondent by letter of the conditions at the Baltimore warehouse after the first inspection. ⁶ There was testimony by Acme's Baltimore division vice president, who had responded to the letter on behalf of Acme and respondent and who described the steps taken to remedy the insanitary conditions discovered by both inspections. The Government's final witness, Acme's vice president for legal affairs and assistant secretary, identified respondent as the president and chief executive officer of the company and read a bylaw prescribing the duties of the chief executive officer. ⁷ He testified that respondent functioned by delegating "normal operating duties," including sanitation, but that he retained "certain things, which are the big, broad, principles of the operation of the company," and had "the responsibility of seeing that they all work together." Id.,  at 41.

At the close of the Government's case in chief, respondent moved for a judgment of acquittal on the ground that "the evidence in chief has shown that Mr. Park is not personally concerned in this Food and Drug violation." The trial judge denied the motion, stating that United States  v. Dotterweich,  320 U.S. 277 (1943), was controlling.

Respondent was the only defense witness. He testified that, although all of Acme's employees were in a sense under his general direction, the company had an "organizational structure for responsibilities for certain functions" according to which different phases of its operation were "assigned to individuals who, in turn, have staff and departments under them." He identified those individuals responsible for sanitation, and related that upon receipt of the January 1972 FDA letter, he had conferred with the vice president for legal affairs, who informed him that the Baltimore division vice president "was investigating the situation immediately and would be taking corrective action and would be preparing a summary of the corrective action to reply to the letter." Respondent stated that he did not "believe there was anything [he] could have done more constructively than what [he] found was being done." App. 43-47.

On cross-examination, respondent conceded that providing sanitary conditions for food offered for sale to the public was something that he was "responsible for in the entire operation of the company," and he stated that it was one of many phases of the company that he assigned to "dependable subordinates." Respondent was asked about and, over the objections of his counsel, admitted receiving, the April 1970 letter addressed to him from the FDA regarding insanitary conditions at Acme's Philadelphia warehouse. ⁸ He acknowledged that, with the exception of the division vice president, the same individuals had responsibility for sanitation in both Baltimore and Philadelphia. Finally, in response to questions concerning the Philadelphia and Baltimore incidents, respondent admitted that the Baltimore problem indicated the system for handling sanitation "wasn't working perfectly" and that as Acme's chief executive officer he was responsible for "any result which occurs in our company." Id.,  at 48-55.

At the close of the evidence, respondent's renewed motion for a judgment of acquittal was denied. The relevant portion of the trial judge's instructions to the jury challenged by respondent is set out in the margin. ⁹ Respondent's counsel objected to the instructions on the ground that they failed fairly to reflect our decision in United States  v. Dotterweich, supra., and to define "'responsible relationship.'" The trial judge overruled the objection. The jury found respondent guilty on all counts of the information, and he was subsequently sentenced to pay a fine of $50 on each count. ¹⁰

 The Court of Appeals reversed the conviction and remanded for a new trial. That court viewed the Government as arguing "that the conviction may be predicated solely upon a showing that… [respondent] was the President of the offending corporation," and it stated that as "a general proposition, some act of commission or omission is an essential element of every crime." 499 F. 2d 839, 841 (CA4 1974). It reasoned that, although our decision in United States  v. Dotterweich, supra, at 281, had construed the statutory provisions under which respondent was tried to dispense with the traditional element of "'awareness of some wrongdoing,'" the Court had not construed them as dispensing with the element of "wrongful action." The Court of Appeals concluded that the trial judge's instructions "might well have left the jury with the erroneous impression that Park could be found guilty in the absence of 'wrongful action' on his part," 499 F.2d, at 841-842, and that proof of this element was required by due process. It held, with one dissent, that the instructions did not "correctly state the law of the case," id., at 840, and directed that on retrial the jury be instructed as to "wrongful action," which might be "gross negligence and inattention in discharging… corporate duties and obligations or any of a host of other acts of commission or omission which would 'cause' the contamination of food." Id.,  at 842. (Footnotes omitted.)

****

We granted certiorari because of an apparent conflict among the Courts of Appeals with respect to the standard of liability of corporate officers under the Federal Food, Drug, and Cosmetic Act as construed in United States  v. Dotterweich, supra, and because of the importance of the question to the Government's enforcement program. We reverse.

I

The question presented by the Government's petition for certiorari in United States  v. Dotterweich, supra, and the focus of this Court's opinion, was whether "the manager of a corporation, as well as the corporation itself, may be prosecuted under the Federal Food, Drug, and Cosmetic Act of 1938 for the introduction of misbranded and adulterated articles into interstate commerce." Pet. for Cert., No. 5, O.T. 1943, p. 2. In Dotterweich, a jury had disagreed as to the corporation, a jobber purchasing drugs from manufacturers and shipping them in interstate commerce under its own label, but had convicted Dotterweich, the corporation's president and general manager. The Court of Appeals reversed the conviction on the ground that only the drug dealer, whether corporation or individual, was subject to the criminal provisions of the Act, and that where the dealer was a corporation, an individual connected therewith might be held personally only if he was operating the corporation "as his 'alter ego.'" United States  v. Buffalo Pharmacal Co.,  131 F. 2d 500, 503 (CA2 1942). ¹¹

In reversing the judgment of the Court of Appeals and reinstating Dotterweich's conviction, this Court looked to the purposes of the Act and noted that they "touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection." 320 U.S., at 280. It observed that the Act is of "a now familiar type" which "dispenses with the conventional requirement for criminal conduct - awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger." Id.,  at 280-281.

Central to the Court's conclusion that individuals other than proprietors are subject to the criminal provisions of the Act was the reality that "the only way in which a corporation can act is through the individuals who act on its behalf." Id., at 281. The Court also noted that corporate officers had been subject to criminal liability under the Federal Food and Drugs Act of 1906, ¹² and it observed that a contrary result under the 1938 legislation would be incompatible with the expressed intent of Congress to "enlarge and stiffen the penal net" and to discourage a view of the Act's criminal penalties as a "'license fee for the conduct of an illegitimate business.'" 320 U.S., at 282-283. (Footnote omitted.)

At the same time, however, the Court was aware of the concern which was the motivating factor in the Court of Appeals' decision, that literal enforcement "might operate too harshly by sweeping within its condemnation any person however remotely entangled in the proscribed shipment." Id.,  at 284. A limiting in the proscribed shipment." Id.,  at 284. A limiting principle, in the form of "settled doctrines of criminal law" defining those who "are responsible for the commission of a misdemeanor," was available. In this context, the Court concluded, those doctrines dictated that the offense was committed "by all who… have… a responsible share in the furtherance of the transaction which the statute outlaws." Ibid.

 The Court recognized that, because the Act dispenses with the need to prove "consciousness of wrongdoing," it may result in hardship even as applied to those who share "responsibility in the business process resulting in" a violation. It regarded as "too treacherous" an attempt "to define or even to indicate by way of illustration the class of employees which stands in such a responsible relation." The question of responsibility, the Court said, depends "on the evidence produced at the trial and its submission - assuming the evidence warrants it - to the jury under appropriate guidance." The Court added: "In such matters the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries must be trusted." Id.,  at 284-285. ¹³ See 21 U.S.C.  § 336. Cf.  United States  v. Sullivan,  332 U.S. 689, 694-695 (1948).

II

The rule that corporate employees who have "a responsible share in the furtherance of the transaction which the statute outlaws" are subject to the criminal provisions of the Act was not formulated in a vacuum. Cf.  Morissette  v. United States,  342 U.S. 246, 258 (1952). Cases under the Federal Food and Drugs Act of 1906 reflected the view both that knowledge or intent were not required to be proved in prosecutions under its criminal provisions, and that responsible corporate agents could be subjected to the liability thereby imposed. See, e.g., United States  v. Mayfield,  177 F. 765 (ND Ala. 1910). Moreover, the principle had been recognized that a corporate agent, through whose act, default, or omission the corporation committed a crime, was himself guilty individually of that crime. The principle had been applied whether or not the crime required "consciousness of wrongdoing," and it had been applied not only to those corporate agents who themselves committed the criminal act, but also to those who by virtue of their managerial positions or other similar relation to the actor could be deemed responsible for its commission.

In the latter class of cases, the liability of managerial officers did not depend on their knowledge of, or personal participation in, the act made criminal by the statute. Rather, where the statute under which they were prosecuted dispensed with "consciousness of wrongdoing," an omission or failure to act was deemed a sufficient basis for a responsible corporate agent's liability. It was enough in such cases that, by virtue of the relationship he bore to the corporation, the agent had the power to prevent the act complained of. [string citations omitted].

 The rationale of the interpretation given the Act in Dotterweich,  as holding criminally accountable the persons whose failure to exercise the authority and supervisory responsibility reposed in them by the business organization resulted in the violation complained of, has been confirmed in our subsequent cases. Thus, the Court has reaffirmed the proposition that "the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors." Smith  v. California,  361 U.S. 147, 152 (1959). In order to make "distributors of food the strictest censors of their merchandise," ibid.,  the Act punishes "neglect where the law requires care, or inaction where it imposes a duty." Morissette  v. United States,  342 supra, at 255. "The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities." Id., at 256. Cf. Hughes, Criminal Omissions, 67 Yale L.J. 590 (1958). Similarly, in cases decided after Dotterweich,  the  Courts of Appeals have recognized that those corporate agents vested with the responsibility, and power commensurate with that responsibility, to devise whatever measures are necessary to ensure compliance with the Act bear a "responsible relationship" to, or have a "responsible share" in, violations. ¹⁴

Thus Dotterweich  and the cases which have followed reveal that in providing sanctions which reach and touch the individuals who execute the corporate mission - and this is by no means necessarily confined to a single corporate agent or employee - the Act imposes not only a positive duty to seek out and remedy violations when they occur but also, and primarily, a duty to implement measures that will insure that violations will not occur. The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and well-being of the public that supports them. Cf. Wasserstrom, Strict Liability in the Criminal Law, 12 Stan. L. Rev. 731, 741-745 (1960).¹⁵

The Act does not, as we observed in Dotterweich, make criminal liability turn on "awareness of some wrongdoing" or "conscious fraud." The duty imposed by Congress on responsible corporate agents is, we emphasize, one that requires the highest standard of foresight and vigilance, but the Act, in its criminal aspect, does not require that which is objectively impossible. The theory upon which responsible corporate agents are held criminally accountable for "causing" violations of the Act permits a claim that a defendant was "powerless" to prevent or correct the violation to "be raised defensively at a trial on the merits." United States  v. Wiesenfeld Warehouse Co.,  376 U.S. 86, 91 (1964). If such a claim is made, the defendant has the burden of coming forward with evidence, but this does not alter the Government's ultimate burden of proving beyond a reasonable doubt the defendant's guilt, including his power, in light of the duty imposed by the Act, to prevent or correct the prohibited condition. Congress has seen fit to enforce the accountability of responsible corporate agents dealing with products which may affect the health of consumers by penal sanctions cast in rigorous terms, and the obligation of the courts is to give them effect so long as they do not violate the Constitution.

III

 We cannot agree with the Court of Appeals that it was incumbent upon the District Court to instruct the jury that the Government had the burden of establishing "wrongful action" in the sense in which the Court of Appeals used  that phrase. The concept of a "responsible relationship" to, or a "responsible share" in, a violation of the Act indeed imports some measure of blameworthiness; but it is equally clear that the Government establishes a prima facie case when it introduces evidence sufficient to warrant a finding by the trier of the facts that the defendant had, by reason of his position in the  corporation, responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and that he failed to do so. The failure thus to fulfill the duty imposed by the interaction of the corporate agent's authority and the statute furnishes a sufficient causal link. The considerations which prompted the imposition of this duty, and the scope of the duty, provide the measure of culpability.

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IV

…We are satisfied that the Act imposes the highest standard of care and permits conviction of responsible corporate officials who, in light of this standard of care, have the power to prevent or correct violations of its provisions. Implicit in the Court's admonition that "the ultimate judgment of juries must be trusted," United States  v. Dotterweich,  320 U.S., at 285, however, is the realization that they may demand more than corporate bylaws to find culpability.

 Respondent testified in his defense that he had employed a system in which he relied upon his subordinates, and that he was ultimately responsible for this system. He testified further that he had found these subordinates to be "dependable" and had "great confidence" in them. By this and other testimony respondent evidently sought to persuade the jury that, as the president of a large corporation, he had no choice but to delegate duties to those in whom he reposed confidence, that he had no reason to suspect his subordinates were failing to insure compliance with the Act, and that, once violations were unearthed, acting through those subordinates he did everything possible to correct them. ¹⁸

Although we need not decide whether this testimony would have entitled respondent to an instruction as to his lack of power, see supra, at 676, had he requested it, ¹⁹ the testimony clearly created the "need" for rebuttal evidence. That evidence was not offered to show that respondent had a propensity to commit criminal acts, cf.  Michelson  v. United States,  335 U.S. 469, 475-476 (1948), or, as in United States  v. Woods, 484 F. 2d 127, that the crime charged had been committed; its purpose  was to demonstrate that respondent was on notice that he could not rely on his system of delegation to subordinates to prevent or correct insanitary conditions at Acme's warehouses, and that he must have been aware of the deficiencies of this system before the Baltimore violations were discovered. The evidence was therefore relevant since it served to rebut respondent's defense that he had justifiably relied upon subordinates to handle sanitation matters. Cf.  United States  v. Ross,  321 F. 2d 61, 67 (CA2), cert. denied, 375 U.S. 894 (1963); E. Cleary, McCormick on Evidence § 190, pp. 450-452 (2d ed. 1972). And, particularly in light of the difficult task of juries in prosecutions under the Act, we conclude that its relevance and persuasiveness outweighed any prejudicial effect. Cf.  Research Laboratories, Inc.  v. United States,  167 F. 2d 410, 420-421 (CA9), cert. denied, 335 U.S. 843 (1948).

Reversed.   

¹  Section 402 of the Act, 21 U.S.C.  § 342, provides in pertinent part:

"A food shall be deemed to be adulterated -

"(a)… (3) if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; or (4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health…."

²  Section 301 of the Act, 21 U.S.C.  § 331, provides in pertinent part:

"The following acts and the causing thereof are prohibited:

.  .  .  .  .

"(k) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale (whether or not the first sale) after shipment in interstate commerce and results in such article being adulterated or misbranded."

³ The parties stipulated in effect that the items of food described in the information had been shipped in interstate commerce and were being held for sale in Acme's Baltimore warehouse.

⁴ [detailed findings of inspectors are omitted]

⁵ The first four counts of the information alleged violations corresponding to the observations of the inspectors during the November and December 1971 inspection. The fifth count alleged violations corresponding to observations during the March 1972 inspection.

⁶ The letter, dated January 27, 1972, included the following:

"We note with much concern that the old and new warehouse areas used for food storage were actively and extensively inhabited by live rodents. Of even more concern was the observation that such reprehensible conditions obviously existed for a prolonged period of time without any detection, or were completely ignored.

.  .  .  .  .

"We trust this letter will serve to direct your attention to the seriousness of the problem and formally advise you of the urgent need to initiate whatever measures are necessary to prevent recurrence and ensure compliance with the law." Id.,  at 64-65.

⁷ The bylaw provided in pertinent part:

"The Chairman of the board of directors or the president shall be the chief executive officer of the company as the board of directors may from time to time determine. He shall, subject to the board of directors, have general and active supervision of the affairs, business, offices and employees of the company….

"He shall, from time to time, in his discretion or at the order of the board, report the operations and affairs of the company. He shall also perform such other duties and have such other powers as may be assigned to him from time to time by the board of directors." Id.,  at 40.

⁸ The April 1970 letter informed respondent of the following "objectionable conditions" in Acme's Philadelphia warehouse:

"1. Potential rodent entry ways were noted via ill fitting doors and door in repair at Southwest corner of warehouse; at dock at old salvage room and at receiving and shipping doors which were observed to be open most of the time.

"2. Rodent nesting, rodent excreta pellets, rodent stained bale bagging and rodent gnawed holes were noted among bales of flour stored in warehouse.

"3. Potential rodent harborage was noted in discarded paper, rope, sawdust and other debris piled in corner of shipping and receiving dock near bakery and warehouse doors. Rodent excreta pellets were observed among bags of sawdust (or wood shavings)." Id.,  at 70.

⁹  "In order to find the Defendant guilty on any count of the Information, you must find beyond a reasonable doubt on each count.

.  .  .  ..

"Thirdly, that John R. Park held a position of authority in the operation of the business of Acme Markets, Incorporated.

"However, you need not concern yourselves with the first two elements of the case. The main issue for your determination is only with the third element, whether the Defendant held a position of authority and responsibility in the business of Acme Markets.

.  .  .  .  .

"The statute makes individuals, as well as corporations, liable for violations. An individual is liable if it is clear, beyond a reasonable doubt, that the elements of the adulteration of the food as to travel in interstate commerce are present. As I have instructed you in this case, they are, and that the individual had a responsible relation to the situation, even though he may not have participated personally.

"The individual is or could be liable under the statute, even if he did not consciously do wrong. However, the fact that the Defendant is [president] and is a chief executive officer of the Acme Markets does not require a finding of guilt. Though, he need not have personally participated in the situation, he must have had a responsible relationship to the issue. The issue is, in this case, whether the Defendant, John R. Park, by virtue of his position in the company, had a position of authority and responsibility in the situation out of which these charges arose." Id., at 61-62.

¹⁰ Sections 303 (a) and (b) of the Act, 21 U.S.C.  §§ 333 (a) and (b), provide:

"(a) Any person who violates a provision of section 331 of this title shall be imprisoned for not more than one year or fined not more than $1,000, or both.

"(b) Notwithstanding the provisions of subsection (a) of this section, if any person commits such a violation after a conviction of him under this section has become final, or commits such a violation with the intent to defraud or mislead, such person shall be imprisoned for not more than three years or fined not more than $10,000, or both."

Respondent's renewed motion for a judgment of acquittal or in the alternative for a new trial, one of the grounds of which was the alleged abuse of discretion in the initiation of the prosecution against him, had previously been denied after argument.

¹¹ The Court of Appeals relied upon § 303 (c) of the Act, 21 U.S.C.  § 333 (c), which extended immunity from the penalties provided by § 303 (a) to a person who could establish a guaranty "signed by, and containing the name and address of, the person residing in the United States from whom he received  in good faith the article…." (Emphasis added.) The court reasoned that where the drug dealer was a corporation, the protection of § 303 (c) would extend only to such dealer and not to its employees.

¹² Act of June 30, 1906, c 3915, 34 Stat 768.

¹³ In reinstating Dotterweich's conviction, the Court stated: "For present purpose it suffices to say that in what the defense characterized as 'a very fair charge' the District Court properly left the question of the responsibility of Dotterweich for the shipment to the jury, and there was sufficient evidence to support its verdict." 320 U.S. at, 285.

¹⁴ S[citations omitted]

¹⁵ We note that in 1948 the Senate passed an amendment to § 303 (a) of the Act to impose criminal liability only for violations committed "willfully or as a result of gross negligence." 94 Cong. Rec. 6760-6761 (1948). However, the amendment was subsequently stricken in conference. Id., at 8551, 8838.

¹⁸ In his summation to the jury, counsel for respondent argued:

"Now, you are Mr. Park. You have his responsibility for a thousand stores - I think eight hundred and some stores - lots of stores, many divisions, many warehouses. What are you going to do, except hire people in whom you have confidence to whom you delegate the work?

.  .  .  .  .

"… What I am saying to you is that Mr. Park, through his subordinates, when this was found out, did everything in the world they [sic]  could." 3 Record 201, 207.

¹⁹ Assuming, arguendo,  that it would be objectively impossible for a senior corporate agent to control fully day-to-day conditions in 874 retail outlets, it does not follow that such a corporate agent could not prevent or remedy promptly violations of elementary sanitary conditions in 16 regional warehouses.

As we see in the above cases, courts tend to disfavor strict liability. Punishing an act that is not accompanied by a culpable mens rea risks punishing innocent persons. On the other hand, court will impose strict liability if the statutory intent to do so is clear. It will help to view strict liability cases in the context of statutory construction.  The omission of a culpable mens rea from a statute may not be sufficient to cause a court to interpret the statute to dispense with a mens rea requirement.  Most states have enacted statutory provisions similar to MPC § 2.02(3), "When the culpability sufficient to establish a material element of an offiense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto." But what would be the effect of a ruling in Dotterweich that the defendant had to act recklessly before he could be convicted of distributing mislabeled drugs?  Factors to consider in weighing this question:

• Does the proscribed conduct protect public health and safety?
• Does imposing the obligation to prove a culpable mens rea threaten to frustrate the statute's objectives?
• What is the risk that dispensing with a culpable mens rea requirement  will punish the innocent?
• What is the gravity of the punishment imposed? 

The interplay of these criteria can predict how a court might interpret ambiguous statutory language. Bar examiners have asked a question similar to this:

Which of the following is most likely to be found to be a strict liability offense?

1. A city ordinance providing a fine of not more than $200 for passing a bad check.
2. A federal statute making it a felony to transport a person across state lines for immoral purposes.
3. A state statute making it a felony to fail to register a firearm.
4. A federal statute authorizing a ten year sentence for polluting a river.
5. A state statute imposing a fine for selling tobacco to a minor.

 No statutory language is provided. How will you answer this question based on the criteria we have discussed in this unit?