sense, intentionally done.18 And the legislature has no power to punish a person for the commission of an act which the utmost care and circumspection on his part would not enable him to avoid.19 Nor can it conclusively impute intent to commit crime to an insane person, nor withhold from a person accused of crime the right to prove in his defense that he was insane at the time of committing the act.20 § 86. Construction of statutes. Whether or not a criminal intent is an essential element of a particular statutory offense depends upon the intent of the legislature, to be arrived at by a construction of the statute in question.21 Of course intent is essential where the legislature has incorporated into the statute a word or words descriptive of the offense which imply the necessity of a mind at fault before there can be a crime.22 And according to some of And so it is where a carrier discriminates in the transportation of passengers or goods, in direct violation of a statute. State v. Southern Ry. Co., 122 N. C. 1052, 30 S. E. 133, 41 L. R. A. 246. 18 State v. Smith, 57 Mont. 563, 190 Pac. 107. So a railroad company is not liable for an act of its lessee in which it does not participate further than by making the lease, where it had no knowledge that it would be committed when the lease was made. Louisville R. Co. v. Com., 130 Ky. 738, 114 S. W. 343, 132 Am. St. Rep. 408. 19 State v. Cox, 91 Ore. 518, 179 Pac. 575; State v. Strasburg, 60 Wash. 106, 110 Pac. 1020, 32 L. R. A. (N. S.) 1216, Ann. Cas. 1912 B 917. 20 State v. Strasburg, 60 Wash. 106, 110 Pac. 1020, 32 L. R. A. (N. S.) 1216, Ann. Cas. 1912 B 917. And see § 96, infra. 21 Arkansas. Wells Fargo & Co. Express v. State, 79 Ark. 349, 96 S. W. 189. California. In re Ahart, 172 Cal. 762, 159 Pac. 160; People v. O'Brien, 96 Cal. 171, 31 Pac. 45. District of Columbia. Masters v. United States, 42 App. Cas. 350. Massachusetts. Com. v. Murphy, 165 Mass. 66, 42 N. E. 504, 30 L. R. A. 734, 52 Am. St. Rep. 496. Michigan. People v. Hatinger, 174 Mich. 333, 140 N. W. 648; People v. Welch, 71 Mich. 548, 39 N. W. 747, 1 L. R. A. 385. Montana. State v. Smith, 57 Mont. 563, 190 Pac. 107. New Jersey. Halsted v. State, 41 N. J. L. 552, 32 Am. Rep. 247. Ohio. State v. Kelly, 54 Ohio St. 166, 43 N. E. 163. Pennsylvania. Com. v. Weiss, 139 Pa. St. 247, 21 Atl. 10, 11 L. R. A. 530, 23 Am. St. Rep. 182. England. Reg. v. Tolson, 23 Q. B. D. 168. The conflicts in the decisions as to the necessity for showing intent in certain classes of offenses are due to differences in the wording of the statutes and in the manner in which they have been construed by the courts. Halsted v. State, 41 N. J. L. 552, 32 Am. Rep. 247; O'Donnel v. Com., 108 Va. 882, 62 S. E. 373. 22 As where a statute making it an the courts, a statute prohibiting and punishing an act as a crime is to be construed in the light of the common law, and hence as requiring the existence of a criminal intent, unless a legislative intent to the contrary clearly appears.23 But others hold that intent is not an ingredient of a statutory offense which is merely malum prohibitum unless the element of wrongful intent or guilty knowledge is incorporated into the legislative definition of the crime, and that when an act not otherwise criminal is forbidden in general terms, a criminal intent need not be shown unless the language of the act shows a purpose to require it.24 The use of the word "wrong offense to sell liquor to minors provides that the selling of liquor to a minor in a place where liquors are sold shall be prima facie evidence of an intent to violate the law. People v. Welch, 71 Mich. 548, 39 N. W. 747, 1 L. R. A. 385. 23 Alabama. Gorden v. State, 52 Ala. 308, 23 Am. Rep. 575. District of Columbia. Masters v. New Mexico. State v. Alva, 18 Duncan V. State, 7 England. Reg. v. Tolson, 23 Q. B. D. 168. 24 United States. Voves v. United States, 249 Fed. 191. Arkansas. Wells Fargo & Co. Express v. State, 79 Ark. 349, 96 S. W. 189; Redmond v. State, 36 Ark. 58. California. People v. O'Brien, 96 Cal. 171, 31 Pac. 45; People v. Wolfram, 15 Cal. App. 732, 115 Pac. 1088. Idaho. State v. Keller, 8 Idaho 699, 70 Pac. 1051. Kansas. Wagstaff v. Schippel, 27 Kan. 450. Massachusetts. Com. v. New York Cent. & H. River R. Co., 202 Mass. 394, 88 N. E. 764, 23 L. R. A. (N. S.) 350, 132 Am. St. Rep. 507, 16 Ann. Cas. 587. Michigan. People v. Hatinger, 174 Mich. 333, 140 N. W. 648; People v. Welch, 71 Mich. 548, 39 N. W. 747, 1 Montana. State v. Smith, 57 Mont. 563, 190 Pac. 107; State v. District Court, Silver Bow Co., 44 Mont. 318, 119 Pac. 1103, Ann. Cas. 1913 B 396. Nevada. State v. Zichfeld, 23 Nev. 304, 46 Pac. 802, 34 L. R. A. 784, 62 Am. St. Rep. 800. New Jersey. Halsted v. State, 41 N. J. L. 552, 32 Am. Rep. 247. New York. People v. Corrigan, 195 N. Y. 1, rev'g 129 App. Div. 62, 113 N. Y. Supp. 504, and aff 'g 129 App. Div. 75, 113 N. Y. Supp. 513; People v. Kimmel, 88 Misc. 38, 150 N. Y. Supp. 311. North Carolina. State v. Southern Ry. Co., 122 N. C. 1052, 30 S. E. 133, 41 L. R. A. 246. Oregon. State v. Brown, 73 Ore. 325, 144 Pac. 444. South Carolina. State v. Assmann, 46 S. C. 554, 24 S. E. 673; State v. Reeder, 36 S. C. 497, 15 S. E. 544. Vermont. State v. Gilmore, 80 Vt. 514, 68 Atl. 658, 16 L. R. A. (N. S.) 786, 13 Ann. Cas. 321. Washington. State v. Nicolls, 61 Wash. 142, 112 Pac. 269, Ann. Cas. 1912 B 1088. Wisconsin. Welch V. State, 145 Wis. 86, 129 N. W. 656, 32 L. R. A. (N. S.) 746. Whenever an act is denounced as unlawful by statute, the doing of that ful" 25 or maliciously 26 in defining a crime has been held to make proof of a criminal intent essential. But the use of the word "carelessly" has been held not to do so.27 Some of the courts have held that intent must be shown where the statute requires the prohibited acts to have been done knowingly,28 but there is also authority to the contrary.29 And there is also a conflict of authority as to the effect in this regard of the use of the word wilfully.30 The question frequently arises in cases in which ignorance or mistake of fact is set up as a defense, and reference should be had to the sections dealing with that subject.31 The necessity for showing intent in prosecutions for particular offenses is considered in the chapters dealing specifically with the various crimes.32 § 87. Specific intent. In some crimes a specific intent is an essential ingredient, and no other intent will suffice. On a prosecution for such an offense, the state must affirmatively prove this particular intent, or facts from which it may be inferred.33 This is act constitutes the offense, and the intent with which it is done is immaterial. State v. Southern Ry. Co., 122 N. C. 1052, 30 S. E. 133, 41 L. R. A. 246. "In prosecutions for misdemeanors created by statute under the exercise of the police power, proof of a guilty mind or corrupt purpose is not essential to a conviction." Com. v. Closson, 229 Mass. 329, 118 N. E. 653, L. R. A. 1918 C 939. 25"Wrongfully convert to his own use in a statute defining embezzlement. Masters v. United States, 42 App. Cas. (D. C.) 350. 26 See § 99, infra. 27 For an officer to "carelessly" permit a criminal to escape. Garver v. Territory, 5 Okla. 342, 49 Pac. 470. 28 See Voves v. United States, 249 Fed. 191; Com. v. New York Cent. & H. River R. Co., 202 Mass. 394, 88 N. E. 764, 23 L. R. A. (N. S.) 350, 132 Am. St. Rep. 507, 16 Ann. Cas. 587; State v. Nicolls, 61 Wash. 142, 112 Pac. 269, Ann. Cas. 1912 B 1088. 29 It was held not to do so in a statute punishing the making of a false statement that intoxicating liquor was for the personal use of the consignee. Goodman v. Com., 169 Ky. 542, 184 S. W. 876. 30 See § 97, infra. 32 See chaps. 9-47, infra. 33 United States. United States v. Buzzo, 18 Wall. 125, 85 L. Ed. 812. Alabama. Ogletree v. State, 28 Ala. 693; Williams v. State, 13 Ala. App. 133, 69 So. 376. Arkansas. Chrisman v. State, 54 Ark. 283, 15 S. W. 889, 26 Am. St. Rep. 44. Illinois. People v. Connors, 253 Ill. 266, 97 N. E. 643, 39 L. R. A. (N. S.) 143, Ann. Cas. 1913 A 196. Louisiana. State v. Thomas, 127 La. 576, 53 So. 868, 37 L. R. A. (N. S.) 172, Ann. Cas. 1912 A 1059. Massachusetts. Com. v. Hersey, 2 Allen 173. Michigan. Roberts v. People, 19 Mich. 401; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781. Mississippi. Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392. true in burglary, for example, where the breaking and entering must be shown to have been with the specific intent to commit a felony,34 in larceny 35 and robbery 36 where there must be a specific intent to permanently deprive the owner of the goods of his property therein, in forgery or the uttering of a forged instrument, where an intent to defraud is an essential element of the crime,87 in arson, where there must be an intention to burn,38 and in malicious mischief, where the injury to the property must be intentional.39 And it is also true in the case of attempts to commit crime,40 or of an assault with intent to commit a particular crime,41 where it must be shown that the accused intended to commit that particular crime. The specific intent necessary in such cases need not be shown by direct and positive evidence, however, but it may be inferred from the circumstances as a matter of fact. And if the specific intent necessary to constitute the crime exists, it is immaterial that another intent also exists, nor is it material which is the principal and which the subordinate one.48 § 88. Concurrence of act and intent-In general. When a particular intent is essential to constitute a crime, the act and the intent must concur in point of time, that is, the intent must exist New York. Coleman v. People, 58 N. Y. 555; People v. Hegeman, 57 Misc. 295, 107 N. Y. Supp. 261. And see People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193. North Carolina. State v. King, 86 N. C. 603. Texas. Everett v. State, 82 Tex. Cr. 407, 199 S. W. 631; Regan v. State, 28 Tex. App. 227, 12 S. W. 601, 19 Am. St. Rep. 833. Washington. State v. Clark, 98 Wash. 81, 167 Pac. 84; State v. Dolan, 17 Wash. 499, 50 Pac. 472. West Virginia. State v. Meadows, 18 W. Va. 658. England. Dobb's Case, 2 East, P. C. 513; Rex v. Williams, 1 Leach, C. C. 529; Rex v. Duffin, Russ. & R. 365. See also § 90 et seq., infra, and the sections referred to in the following notes. An indictment for killing sheep with intent to steal the carcass is supported by proof of an intent to steal any portion of the carcass. Rex v. Williams, 1 Moody C. C. (Eng.) 107. 34 See § 477, infra. 38 See § 388, infra. 39 See § 838, infra. 40 See § 154, infra. 43 State v. Clark, 69 Iowa 196, 28 N. W. 537; People v. Carmichael, 5 Mich. 10, 71 Am. Dec. 769; State v. Mitchell, 27 N. C. (5 Ired.) 350; Rex v. Shadbolt, 5 Car. & P. (Eng.) 504; Rex v. Williams, 1 Leach C. C. (Eng.) 529; Rex v. Gillow, 1 Moody C. C. (Eng.) 85. 44 when the act complained of is done, and if it does not, it cannot be imputed to a party from a subsequent independent transaction.45 $ 89. Ratification of another's act. A person does not become criminally responsible for the act of another, committed without his knowledge or authority, by subsequently ratifying the same. He must be liable, if at all, at the time the act is done.46 So, if an unlawful act is done by a person's agent or servant without his authority, subsequent ratification of the act will not render him responsible.47 Nor will the owner of property become criminally re 44 United States. United States v. Fox, 95 U. S. 670, 24 L. Ed. 538. Florida. Milton v. State, 40 Fla. 251, 24 So. 60. Massachusetts. Com. v. Tobin, 108 Mass. 426, 11 Am. Rep. 375. New Hampshire. State v. Moore, 12 N. H. 42. Oklahoma. Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771. In murder the evil intention must coexist with the deed and prompt it. Clements v. State, 50 Ala. 117. In assault with intent to rape the assault and the specific intent must concur in point of time. Head v. State, 43 Neb. 30, 61 N. W. 494. To constitute larceny the intent to steal must exist when the property comes into the defendant's possession. If he acquires possession lawfully he is not guilty of larceny although he subsequently appropriates the goods. to his own use with felonious intent. See § 788, infra. And to constitute burglary the intent to commit a felony or other crime must exist at the time of the breaking and entry. It is not burglary to break and enter a dwelling house without any felonious intent, and afterwards form and carry out such an intent. See § 478, infra. Likewise where a police officer went into a house in good faith to prevent a violation of law and arrest the offender, and after entry violated the law himself, his subsequent conduct did not relate back so as to make his original entry a trespass. Milton v. State, 40 Fla. 251, 24 So. 60. A criminal act as well as a criminal intent is necessary. See § 5, supra. 45 So Congress cannot legally provide that every person respecting whom proceedings in bankruptcy are commenced, and who within three months before their commencement shall have obtained goods on credit by false pretenses shall be guilty of an offense. United States v. Fcx, 95 U. S. 670, 24 L. Ed. 538. 46 Cook v. Com., 141 Ky. 439, 132 S. W. 1032; Walker v. State, 29 Tex. App. 621, 16 S. W. 548. "In the law of contracts, a posterior recognition, in many cases, is equivalent to a precedent command; but it is not so in respect of crimes. The defendant is responsible for his own acts, and for the acts of others done by his express or implied command, but to crimes the maxim, 'Omnis ratihabitio retrotrahitur et mandato equiparatur,' is inapplicable.' Morse v. State, 6 Conn. 9. 47 Morse v. State, 6 Conn. 9. But see Reg. v. Woodward, 9 Cox, C. C. (Eng.) 95, where a husband was convicted of receiving stolen property first left with his wife on the theory that the receipt was not complete until he had bargained with the thief as to the price. |