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U.S. Supreme Court
MORISSETTE v. UNITED STATES, 342 U.S. 246 (1952)

  1. 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. Ct. 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.
  2. 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 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.
  3. 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.
  4. United States v. Hudson and Goodwin, 7 Cranch 32; United States v. Gooding, 12 Wheat. 460.
  5. 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 . . . ."
  6. 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.
  7. 18 U.S.C. 242; Screws v. United States, 325 U.S. 91.
  8. 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."
  9. 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.
  10. 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.
    1. 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 . . . ."
    2. 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.
    3. "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.A. 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.
    4. 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 USCA 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.
    5. 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 [342 U.S. 246, 267] service, shall be punished as prescribed in sections 80 and 82-86 of this title." No cases appear to have been decided relating to the element of intent in the acts proscribed in that section.
    6. 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 (C. A. 5th Cir.), 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 [342 U.S. 246, 268] 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. (1940 ed.) 99] deals with robbery and larceny, the description of the latter being taken from the common law. Section 47 [18 U.S.C. (1940 ed.) 100] 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. (1940 ed.) 99] 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. (1940 ed.) 100]." 99 F.2d at 564-565.
    7. 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 [342 U.S. 246, 269] 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."
    8. 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.
    9. 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 own 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 one who "take[s] for his [own] use . . . with intent to steal or purloin . . . ." 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.
  11. 18 U.S.C. 1, 641
  12. 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.
  13. 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.
  14. 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 -
      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.
  15. N. Y. Penal Law, 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 [342 U.S. 246, 273] 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."
  16. 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. [342 U.S. 246, 277]