The Development of Crimes Requiring No Criminal Intent

Transcript

1 M a tt e L a w R e v ie w r que Volume 26 Article 6 F br u a r y 1942 Issue 2 e n t of C r imes R equir in g N o The D evelopme imin r n t e n t C al I i li a m J . S lo a n W l s and additional works at: http://s cholarship.law.marquette.edu/m ulr Follow thi Law Common Part of the s Reposit ory Citation . L. R arq , 26 M t en t n l I a n i m i . 92 (1942). William J. Sloan, Th e D ev e lo pm en t of C r i m e s R e q u i r i n g N o C r ev ulr/v cholarship.law.marquette.edu/m ss2/6 Available at: http://s ol26/i ournals at Marquette Law Scholarly C This Article is brought to you for f ree and ope en accepted for inclusion in s. It has be ommon n access by the J ommon arquette Law Scholarly C strator of M ized admini Marquette Law Review by an author lease contact mation, p e infor s. For mor arquette.edu [email protected] .

2 26 [Vol. REVIEW LAW MARQUETTE THE REQUIRING OF CRIMES DEVELOPMENT THE INTENT CRIMINAL NO in- criminal development, later its during law, common the Under guilty or "Scienter," every crime." of element a necessary was tent a conviction before case criminal in every proved be to had knowledge, criminal English century, the twelfth to But prior secured. be could intent criminal considered courts the that reveal .not do records law 2 1188, in compiled Primi, Henrici the Leges In to a crime. necessary often is rule law, the existing the to state attempt an early which is it for pay must unknowingly evil commits who that "he repeated 3 was and be, could penalty the death show that Records knowingly.' of death the caused negligently who persons from exacted sometimes, law early the Though practice. general the not was this But another. of criminality, element a necessary as intent forth criminal set not did be would that it show will crimes law the common of examination an or Robbery intent. an evil without them of most commit to impossible be woufd it and design; an evil without committed be not rape could burn to intent The housebreaking. in engage unknowingly to difficult 4 arson. common-law to essential always was increased law Roman in interest the as century, the twelfth After of principles grew, Chancellors of the as the power and in England, Criminal the common-law. into engrafted were law and canon Roman the under law, and Roman the under to crime necessary was intent requirement. important the act, was the not and intent, law the canon as essen- recognized to be intent came of evil necessity the Gradually, his wrote Blackstone that when so crime, the common-law to tial coznizable crime, complete a "To make state, to able was he treatise vicious a As ... act and an will a both be must there laws, human by an other hand, the so, on crime, civil is no act vicious a without will So all. at crime no is will a vicious without act unwarrantable a first, be, must there laws human against crime a constitute to that such upon consequent act unlawful an secondly, and, will, vicious 5 element necessary a remained has intent Criminal will."' vicious day.' present the until crime common-law the of of because But intent. criminal require also crimes statutory Most states the of the legislatures society, of modem nature complicated the (1940). 302 196 So. 504, Fla. 142 v. State, Russa 'La REV. 977. L. HARV. 45 Rea, Mens 2Sayre, 1923) 99. (2d. LAW OF ENGLISH HISTORY AND MAITLAND, POLLOCK 32, 4 Sayre, Mens Rea, op. cit. 21. COMMENTARIES 54 BLACKSTONE'S State, 8 Olson v. Wis. 413, 143 127 N.W. 975 Welch (1910); Wis. 145 State, v. (1940); 628 (2d) N.Y.S. 24 Boxer, v. People (1911); 656 N.W. 129 86, Borderland (1937); 556 (2d) S.W. 574, 106 Tenn. 171 State, v. McKnight (1937). 207 (2d) 523, P. 68 Ariz. 49 State, Co. v. Const.

3 NOTES 1942] it necessary, in order to protect the public safety have found wel- and laws which make the mere performance of certain pro- to fare, pass the acts, perform other commanded acts, unlawful, hibited failure or to intention. the variously defined as of regardless These actor's laws, "public welfare justified as a offenses," are "police offenses" and as 7 with They are concerned proper such exercise of the police power. the law general safety regulation, pure food things as the road, of narcotics and gam- regulation, nuisances, criminal laws, employment employment bling and other suppression, licensing, and regulation, of fields are usually not major offen- offenses.Violations in any these the are be numerous. Because of to nature violations ses, but apt the would be almost of these offenses, it if secure impossible to conviction persons to the the intent of prove who required were state criminal And yet, in order to protect violated public health and the law." the is that violations of these regulations be kept at a safety, it necessary states, So exercise of their police power, minimum. in the the have 9 the actor's interest. of things regarless unlawful declared certain public welfare offenses are usually not The in acts defined as malum wrong because they are prohibited merely statute. "The are but se, by wrongful act and a wrongful intent must rule to consti- that a concur crime not deny to the state the power to create and define tute a does the for doing of an act which but crime the statute would as a mere 0 offense."' not be an a criminal is not element of intent particular crime or Whether an 1 of statutory matter is a construction. ordinarily con- Statutes ' are the courts in the light of the common law, and -strued by unless an intention is expressed, criminal intent ordinarily is to contrary the 1 2 to dispense with intent in required. Legislature's The intention 3 non- "The appearance or clearly be statutory crime must expressed.' 'knowingly' appearance of the word a statute is not or its equivalent in whether question statute requires criminal the on conclusive the intent offense, but that to is to be determined by con- establish the question subject-matter the statute, the language, the evil sought sidering the of CIMINAL COLUMBIA 44; Sayre, Public Welfare Offenses, 33 WHARTON 7 1 LAW 311, State 56; Conlin v. Wausaw, 137 Wis. ex 118 N.W. 810 (1908). REv. L. rel v. Hartfiel, 24 Wis. 60 (1869); Clemens v. State, 176 Wis. 289, 185 s State 21 Wis. 1490 (1921); Ludke v. Burek, 160 209. 440, 152 N.W. N.W. A.L.R. ; Pinoza 190 (1915) (1913) Co., 473, 140 N.W. 84 Wis. ; v. 152 Northern Chair 171 Wis. 487, 177 N.W. 615 (1920); Skeen v. Craig, 31 Utah Scott v. State, 487 20, 86 Pac. (1906). ; United 299 Fed. 75, v. 6th (1924) States, State ex rel Ornstein Landen 9 C.C.A. 126 Wis. 135, 105 N.W. 792 (1905). v. Cary, v. Express State Co., 200 Ala. 31, 75 So. 343 (1917) 10 Southern Ky. v. F. Supp. 234, D.C. of 28 (1939); Brown v. States "1United Schultz, Wis. 543, 119 N.W. 338 (1909). State, 137 2 Knecht Kenyon, 179 Wis. 523, 192 N.W. 82 (1923). 1 v. 111 v. Atlantic State Pacific Tea Co of America, Great W.Va. 148, 161 S.E. Is & (1931). 5

4 THE MARQUETTE LAW REVIEW [Vol. 26 to be eradicated or prevented, and the consequences of the several constructions which to the statute may susceptible; be and if clearly it appears it was Legislature's the intention make to the act crime a regardless of intent, the courts give will effect to that intention.""4 Since statutes the under which prosecutions for a criminal offense may irrespective arise of the intent of defendant the are police regula- tions designed improve to social and moral conditions and to protect the public health and safety, and since it easy is secure to convictions under statutes of this their type, number rapidly has increased during 5 the past fifty years.' If Legislature the prohibits under penalty the doing a of specific act, the doing of prohibited the act constitutes a crime, and the fact to determined be whether is not or defendant the 6 did the act.' has It contended been that laws which make person a who does prohibited a guilty act of crime a regardless of his intent, are unconstitutional, because they violate the fifth and fourteenth amend- ments to United the States Constitution which provide that person no shall be deprived of life, liberty, or property without due process of law, since the criminal intent essential an is element of crime. the But courts have held these that laws constitute a proper exercise of the police power, and they that violate no constitutional provision. "The Constitution does require not scienter that a is necessary element of any law where offense any is malum prohibitum, and one may violate 7 the law without intent an to do so."' In view of the fact a that state legislature has power under the Constitution to pass laws which make acts criminal regardless of whether. actor the has criminal intent or not, whether or is he even conscious of the existence of the law, the Wisconsin Supreme Court has raised interesting an question. Under a statute which prohibits the willful doing an of act, could one be convicted who no had opportunity to avoid the act ?"" The Oregon court has held a that which law would punish man a the for commission of an which act the utmost care on his part would not enable him avoid to probably would be not valid." In holding unconstitutional a which law deprived defendants the of defense of insanity, the Washington Supreme Court said, "The police power the of state, even broad if enough to authorize Legislature the to eliminate the element of intent in defining crime, is not without limitations; and penal a law would not be valid where makes it act an criminal which the utmost care and circumspection would not enable 0 2 avoid.1 to one 4State v: Laundy, 103 Ore. 443, 206 P. 290 (1922). 25 Commonwealth v. Unkirch, 142 Pa. Super. 591, 16 A. (2d) 737 (1941). Boyd 16 v. State, 217 Wis. 149, N.W. 258 330 (1935). "7People v. Johnson, 288 Ill. 422, 123 N.E. 543 (1919). State is Welch, v. Wis. 145 86, 129 N.W. 656 (1911). State 29 v. Laundy, supra. 29 State v. Strasburg, Wash. 60 106, Pac. 110 1020 (1910).

5 NOTES 1942] of the criminal law during the past fifty years is summed The trend what he is con- Bishop intends to do by says, "If a man when up he conclusively presumed to know, is which the scious law, everyone ' 21 Wisconsip intent. need How extensively evil of forbids, there is no trend of law is indicated by the modern succeeding has this followed all of require criminal intent, and statutes, none of which of list their for prison sentences as penalties which provides for jail or violation. REQUIRING CRIMINAL UNDER NOT WISCONSIN STATUTES OFFENSES INTENT or jail (Prison provided) penalty NUISANCES: 1. CRIMINAL it for sale by parking high- on Displaying 85.19 vehicle a (5) way. at vehicles or placing circulars in Throwing 85.29 missles them. without muffler. automobile 85.36 Operating with cut-out. 85.37 Operating automobile from truck into highway. loads 85.38 Spilling tires. truck wtihout pneumatic a Operating 85.57 vehicle with cleats or lugs on wheels on Operating 85.59 highway. (3) work of state inspectors testing Interfering with 95.25 tuberculosis. cattle for or into lake or stream Throwing animal of carcass 95.50 depositing it on highway. or emblem of organization advocating Displaying flag 348.485 States government. United overthrow of to solicit business. employing (1) Dentist "streeters" 152.08 GAMBLING LAWS OF VIOLATIONS 2. Promoting a lottery. 348.01 Keeping gaming devices. 348.07 upon games. Betting 348.08 Engaging pool selling. in 348.172 sold. pools are Frequenting place where 348.174 OF ANTI-NARCOTICS VIOLATIONS LAWS 3. license. drugs Possessing 161.02 without marijuana. using and Possessing 161.275 OF WEIGHTS AND REGULATIONS MEASURES 4. VIOLATIONS to state 98.16 containers not conforming (10) Selling berries in specifications. duck or or offering for sale cotton 98.20 Manufacturing by ounces marking weight the without canvas thereon per yard. LAw 300. 211 BrsHoP, CImINAL

6 THE LAW REVIEW MARQUETTE [Vol. 26 for 98.21 sale Offering of bread statu- of other loaves than weights. tory more 98.23 than Selling weigh- without cheese of pounds 50 according each weight. it ing selling and package to 5. VIOLATIONS OF LICENSE LAWS 95.01 Using stallion. unlicensed Practicing 95.61 vetinary medicine without license. without license. Distributing dairy 97.04 products without 97.42 Selling oleomargarine license. commission as 100.01 (2) (a)Acting without license. merchant without license. 100.13 Operating public warehouse Piloting 114.16 aircraft license. without 125.09 Practicing watchmaking without certificate. 145.12 Acting as plumber without license. 150.01 midwifery Practicing certificate. without 152.02 Practicing license. dentistry without optometry Practicing 153.07 certificate. without 154.06 Practicing certificate. without chiropody 158.15 Practicing barbering without license. 159.15 without cosmetic Practicing art license. 162.06 well-driller license. as Acting without 175.07 detective private license. Acting as without 176.04 without Selling license. liquor 176.051 permit felony). without liquor Manufacturing (A 189.03 license. Selling securities without club 201.73 without Offering motor services license. in business 217.01 Engaging money of transmitting without from certificate state. banking 224.03 charter. business Conducting without PURE VIOLATIONS 6. FOOD OF LAWS-UNWHOLESOME FOOD Handling 97.17 by a person manner, in food unclean or filthy wearing person afflicted clothes, a or by a with disease loathsome have be- ingredients using that or confectionary. or contaminated, in any come bakery 97.31 Feeding food or keeping dairy unwholesome cows stables, using unclean milking unclean them or in utinsils. food. 97.25 Selling adulterated 97.26 Selling prepared under unsanitary conditions. food unhealthful preservatives. Selling food 97.27 containing Selling 97.37 adulterated or cream. milk insanitary or adulterated of 97.53 Sale meats. other than "cold storage products" in 99.09 Keeping food cold storage than more days. 40 food cold storage Returning 99.10 to has once been after it released the upon market. OF VIOLATIONS 7. GENERAL REGULATIONS FOOD 95.29 Imitating state indicate milk products mark used to cows. tested tuberculin are from with intent 97.43 Possess sell imitation cheese or to any

7 NOTES 1942] or by licensed dealers) oleomargarine butter (except has a foreign substance which to or butter cheese any added. been with- patron a restaurant to oleomargarine Offering 97.44 it is. him what of notifying out which to bread rye or wheat than bread other Selling 97.62 kinds the without is sold which or added, is coloring the wrapper. on printed of ingredients amounts and not of cream or ices imitation ice for sale Offering 97.025 standard. statutory not ingredients where jellies or preserves Selling 97.29 label. on printed not do noodles which and spagetti marcaroni, Selling 97.305 standard. statutory meet or the "creamery," "butter," "cream," Using words 97.46 in advertising of cattle of brand any or picture name substitute. butter a moisture statutory more than with cheese Selling 97.49 content. is not that cheese label on cheese" "Wisconsin Using 97.52 requirements. statutory to up according prepared meat not meat, Kosher as Selling 97.56 ritual. to Jewish in using standards with statutory comply to Failing 98.13 of content butter-fat determining for Babcock test milk. do not comply pipettes that Babcock selling or Using 98.14 standards. statutory with LAWS TRAFFIC OF 8. VIOLATIONS glass. safety with equipped not automobile Operating 85.063 the of high- users other rights to equal Not according 85.11 way. officer. traffic of direction comply to with Failure (2) 85.12 signal. traffic to obey Failure (3) an accident. after stop Failing to 85.141 pass- when except of highway on wrong side Driving (1) 85.15 ing. dis- ahead for safe clear not highway when Passing (2) tance. horn. sounding Passing without (1) 85.16 re- without lane to another one traffic from (2) Driving rear. from approaching vehicles gard to it. passing while vehicle a (3) Crowding pass. to attempting a vehicle to give to way Refusing (4) on curves. Passing (5) inter- and highway crossings grade railroad at Passing (6) sections. highway. on two-way side left on cars Passing street (7) passengers. unloading car street for stop Failing to (9) permit to intersection at stopped vehicle (10) Passing to cross. pedestrian

8 26 [Vol. LAW REVIEW THE MARQUETTE to (11) passing or meeting frightened ani- stop Failing on mals. Turning center lane of highway. 85.17 right (1) from outside left the highway. lane Turning (2) from of intersection having traffic (4) Making 'U' at turn officer traffic or signal. in business district or on a (5) Turning in mid-block street. through traffic on to through-traffic yield right-of-way to Failing 85.18 (4) arterial highway. left without giving approach- intersection Turning at (5) to pass. opportunity traffic ing an a funeral procession. (6) Cutting through yield to to authorized emergency (7) Failing right-of-way sounding vehicle siren. right-of-way emerging from driveway (8) Failing yield to or alley. to to vehicles Failing (10) yield on highway traveling parking leaving when space. 85.19 (1) Parking on highway. wrong (2) Parking on street. side of the hill (3) or Stopping on curve or in a crosswalk. a fire plug (4) Parking near of driveway or front in or theater or church entrance. or stopping (9) left side of highway. Parking on Failing stop for authorized emergency vehicle 85.20 to sounding horn. emergency vehicle. Following 85.21 an a Driving safety 85.22 over zone. sidewalk. a along Driving 85.23 Racing on the highway. 85.24 in front of streetcar. Driving on 85.28 track busy intersection for purpose of making 85.31 Backing into turn. another closely. 85.32. Following car truck displaying red signal. a without 85.33 Towing without due regard 85.40 traffic, Operating automobile to of highway, and other conditions. width surface, on a bridge or 85.41 Speeding viaduct. Failing yield right-of-way to pedestrian in cross- 85.44 to walk. Operating over-weight vehicle on high- over-size 85.45 or way. 85.55 Operating on streets restricted to automobile trucks traffic. to stop at an artery or through traffic. 85.69 Failing OF GENERAL SAFETY REGULATIONS 9. VIOLATIONS of 85.13 vehicle Operation addict, by drug epileptic, or habitual drunkard. of vehicle 85.135 Operation subject by judgment for one to of motor vehicle. negligent operation

9 NOTES 1942] 85.14 removing or traffic Defacing signal. 85.26 coasting highway. on Skating or the 85.27 vehicles. Clinging to moving 85.30 tires highway. Placing on to injurious materials 85.34 (1) interferes with driving. vehicle so that Overloading it (3) Driving with one arm. 85.35 (1) on windshield and windows. car signs Operating with equipped with windshield car Operating (2) not wipers. 85.39 outside of vehicle. (2) Riding on from Leading motor (3) animals a vehicle. 85.56 unsafe trailer Using hitch. 85.61 highway fenders. on without Operating tractor 97.69 or Selling sub- medicine containing drug poisonous it. labeling without stance 97.70 on drug or giving Depositing deleterious doorstep it child. a to 95.19 animal afflicted with Failing to report communicable disease. VIOLATIONS OF 10. EMPLOYMENT LAWS 103.65 Employing women minors dangerous or un- or in healthful employment. under 14. Employing 103.67 minors GENERAL VIOLATIONS 11. TRADE OF REGULATIONS having value. stamps cash trading Issuing 100.15 the 100.16 of a prize. Selling merchandise with pretense between 100.22 or com- Unfairly discriminating persons purchasing products. munities in dairy rate (over interest usurous 10%). 115.07 of Charging grain. stored 119.97 Mortgaging liquor without attached revenue 139.03 Selling stamps. Selling watch 125.15 used tag without "Secondhand" attached. Distributor 218.01 inducing (7) automobile dealer to transfer retail finance company. installment sales to name "bank" Using 221.49 without state au- in business thority. Using 223.08 in without state author- name business "trust" ity. 348.36 Telegraph operator to unauthor- divulging message persons. ized WILLIAM J. SLOAN.

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