U.S. Supreme Court MORISSETTE v. UNITED STATES, 342 U.S. 246 (1952)
341 U.S. 925
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."
Morissette v. United States, 187 F.2d 427
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).
In Williams v. New York, 337 U.S. 241, 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 247. Such ends would seem illusory if there were no mental element in crime.
4 Bl. Comm. 21
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.
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).
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.
In the Balint case, Chief Justice Taft recognized this but rather overstated it by making no allowance for exceptions such as those mentioned in footnote 8.
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.
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 [342 U.S. 246, 254] proved in a prosecution for the sale of adulterated butter, Fitzpatrick 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.
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.
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 [342 U.S. 246, 255] 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."
In Felton v. United States, 96 U.S. 699, 703 , 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. . ."
Holmes, The Common Law.
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.
2 Russell on Crime (10th ed., Turner, 1950) 1037.
2 Pollock and Maitland, History of English Law, 465.