1. A criminal intent is an essential element of an offense under
18 U.S.C. § 641, which provides that "whoever embezzles, steals,
purloins, or knowingly converts" property of the United States is
punishable by fine and imprisonment. Pp.
342 U. S.
247-273.
(a) Mere omission from § 641 of any mention of intent is not to
be construed as eliminating that element from the crimes defined.
United States v. Behrman, 258 U.
S. 280, and
United States v. Balint,
258 U. S. 250,
distinguished. Pp.
342 U. S.
250-263.
(b) The history and purposes of § 641 afford no ground for
inferring any affirmative instruction from Congress to eliminate
intent from the offense of "knowingly converting" or stealing
government property. Pp.
342 U. S.
263-273.
2. 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 for determination in the light of all
relevant evidence, and the trial court may not withdraw or prejudge
the issue by instructing the jury that the law raises a presumption
of intent from a single act. Pp.
342 U. S.
273-276.
187 F.2d 427, reversed.
Petitioner was convicted of a violation of 18 U.S.C. § 641. The
Court of Appeals affirmed. 187 F.2d 427. This Court granted
certiorari. 341 U.S. 925.
Reversed, p.
342 U. S.
276.
Page 342 U. S. 247
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.
[
Footnote 1]
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,
Page 342 U. S. 248
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
2] 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. [
Footnote
3]
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
Page 342 U. S. 249
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
Page 342 U. S. 250
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. [
Footnote 4] A relation between some mental
element and punishment for a
Page 342 U. S. 251
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. [
Footnote
5] 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." [
Footnote 6]
Common law commentators of the Nineteenth Century early pronounced
the same principle, [
Footnote
7] although a few exceptions not relevant to our present
problem came to be recognized. [
Footnote 8]
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
Page 342 U. S. 252
and took deep and early root in American soil. [
Footnote 9] As the state 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. [
Footnote
10] 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
Page 342 U. S. 253
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 [
Footnote
11] and in England, [
Footnote 12] to call into existence new duties and crimes
which disregard any ingredient of intent. The industrial
revolution
Page 342 U. S. 254
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, [
Footnote 13]
lawmakers, whether wisely or not, [
Footnote 14]
Page 342 U. S. 255
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
Page 342 U. S. 256
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,
Page 342 U. S. 257
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
Page 342 U. S. 258
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
Page 342 U. S. 259
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. [
Footnote
15] 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 prohibitum classification 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
Page 342 U. S. 260
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.
[
Footnote 16]
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; [
Footnote 17]
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." [
Footnote 18] State courts of last
resort, on whom fall the heaviest burden
Page 342 U. S. 261
of interpreting criminal law in this country, have consistently
retained the requirement of intent in larceny-type offenses.
[
Footnote 19] 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
Page 342 U. S. 262
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
Behrman cases 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, [
Footnote 20] although a few deviations are notable as
illustrative of the danger inherent in the Government's contentions
here. [
Footnote 21]
Page 342 U. S. 263
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 [
Footnote 22] 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
Page 342 U. S. 264
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,
[
Footnote 23] or increase
the degree of the offense or its punishment. [
Footnote 24] Also, it has
Page 342 U. S. 265
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. [
Footnote 25] 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. [
Footnote 26] 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. [
Footnote 27] 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. T he pertinent legislative and judicial
history of these antecedents,
Page 342 U. S. 266
as well as of § 641, is footnoted. [
Footnote 28] We find no other purpose in the 1948
reenactment than to collect from scattered sources crimes so
kindred as to belong in
Page 342 U. S. 267
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.
Page 342 U. S. 268
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
Page 342 U. S. 269
or more dollars each is a felony. [
Footnote 29] 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
Page 342 U. S. 270
drew this one-count indictment to charge that Morissette "did
unlawfully, wilfully and knowingly steal and convert to his own
use." [
Footnote 30]
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. [
Footnote 31] 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
Page 342 U. S. 271
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
Page 342 U. S. 272
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 [
Footnote 32] and in the States, [
Footnote 33] and demonstrates that the serious
problem
Page 342 U. S. 273
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
Page 342 U. S. 274
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
Page 342 U. S. 275
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. [
Footnote 34] 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
Page 342 U. S. 276
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 2]
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.