Am. Jur. 2d

CRIMINAL LAW
by

Douglas L. Grundmeyer, M.A., J.D.; W. A. Harrington, L.L.B.; David A.Hunter, J.D.; and Bill Wishard, J.D.

TOPIC SCOPE

This article discusses the general principles of criminal law and covers the nature and elements of criminal offenses, capacity to commit crime or to be tried or punished, participation in crime, criminal responsibility of one person for the acts of another, inchoate crimes of attempt and solicitation, defenses, including insanity, and rights of the accused.  Although, as indicated below, the article does not include comprehensive coverage of criminal procedure, it does discuss jurisdiction and venue in criminal cases, preliminary proceedings, interstate detainers, arraignment, pleas, nolle prosequi, dismissal, and discontinuance, arrest of judgement, and judgement and sentence.  Punishment and disabilities attending conviction are also discussed, as are such matters as the right of crime victims to reparation from state funds, and the liability of principals in a criminal proceeding, including the defendant, for the costs incurred therein.

are such matters as general powers and duties of police officers (see 70Am Jur 2d,  Sheriffs, Police, and Constables ); arrest (see 5 Am Jur 2d, Arrest ); searches (see 68 Am Jur 2d,  Searches and Seizures ); custody or release pending trial or appeal (see 8 Am Jur 2d,  Bail and Recognizance );interstate and international rendition of fugitives from justice (see 31 AmJur 2d,  Extradition ); grand juries (see 38 Am Jur 2d,  Grand Jury );accusatory pleadings (see 41 Am Jur 2d,  Indictments and Informations ;depositions and discovery of material in possession of the prosecution(see 23 Am Jur 2d,  Depositions and Discovery ); evidence generally (see 29,30 Am Jur 2d,  Evidence ); matters connected with trial generally (see 75, 76Am Jur 2d,  Trial ), including right of nondefendants, such as the press, to have criminal trials open to public (see 75 Am Jur 2d,  Trial ); guarantee against ex post facto laws (see 16 Am Jur 2d,  Constitutional Law );post conviction remedies, both direct and collateral (see for example, 4 AmJur 2d,  Appeal and Error ; 18 Am Jur 2d,  Coram Nobis and Allied statutory Remedies ; 39 Am Jur 2d,  Habeas Corpus ; 58 Am Jur 2d,  New Trial ); the imprisonment of convicted persons (see 60 Am Jur 2d,  Penal and Correctional Institutions ); and executive clemency and parole (see 59 Am Jur 2d,  Pardon and Parole ).

Criminal trials in the justice courts (see 47 Am Jur 2d,  Justice of the Peace ) and laws dealing with juvenile offenders (see 47 Am Jur 2d,  Juvenile Courts and Delinquent and Dependent Children) are also dealt within other articles.  Although, as indicated above, the present treatment covers insanity as a defense to a criminal charge and as a bar to trial or punishment, other problems connected with insanity are discussed elsewhere(see 41 Am Jur 2d,  Incompetent Persons ).  This article's treatment of participation in crime does not extend generally to conspiracy (see 16 AmJur 2d,  Conspiracy ) nor to criminal responsibility of corporations (see 19Am Jur 2d,  Corporations ), partnerships (see 60 Am Jur 2d,  Partnership), or unincorporated associations (see 6 Am Jur 2d,  Associations and Clubs ).

Problems characteristics of particular offenses and the application of the general principles discussed herein to specific crimes are discussed in connection with the particular offense. These will usually be found under the common name of the offense (see for example, 1 Am Jur 2d,  Abduction and Kidnapping ; 1 Am Jur 2d,  Abortion ; 2 Am Jur 2d,  Adultery and Fornication ; 5Am Jur 2d,  Arson and Related Offenses ; 6 Am Jur 2d,  Assault and Battery ;etc.).  However, offenses which are closely related to a substantive topic are dealt with under such topic; examples are offenses connected with the operation of motor vehicles (see 7 Am Jur 2d,  Automobiles and Highway Traffic ); narcotics and liquor offenses (see 25 Am Jur 2d,  Drugs, Narcotics, and Poisons ; 45 Am Jur 2d,  Intoxicating Liquors ); offenses connected with the mails (see 62 Am jur 2d  Post Office ); criminal liability for nonsupport of a wife or child (see 23 Am Jur 2d,  Desertion and Nonsupport ); and cruelty to animals (see 4 Am Jur 2d,  Animals §§ 27 etseq.).

Although criminal offenses involving moral turpitude are discussed herein generally, particular applications of the subject are discussed elsewhere, as, for example, moral turpitude in connection of attorneys (see 7 Am Jur2d,  Attorneys at Law ), revocation of medical licenses (see 61 Am Jur 2d, Physicians and Surgeons ); deportation of aliens (see 3 Am Jur 2d,  Aliens and Citizens ); and such questions as whether liquor offenses involve moral turpitude (see 45 Am Jur 2d,  Intoxicating Liquors ).

This article discusses general principles relating to criminal matters found in pertinent provisions of the United States Constitution, and in the several Amendments thereto, in particular, those concerning rights and privileges of an accused relating to speedy and public trial, trial by jury, information as to the nature and cause of the accusation, confrontation of witnesses, assistance of counsel, the right to compulsory process in his behalf, as well as federal constitutional prohibitions and restrictions on self-incrimination, cruel and unusual punishment, double jeopardy, and, in connection with criminal matters, the guarantees of due process of law and equal protection of the laws under the applicable federal constitutional provisions and amendments.

Also discussed are the basis principles governing federal crimes and criminal law generally, as set out in Title 18, United States Code, and the provisions relating to criminal practice and procedure applicable in federal courts, in the areas covered by the article, as contained in Title 28, United States Code and in the Federal Rules of Criminal Procedure.

The article also discusses the provisions relating to development of federal programs to assist state and local law enforcement agencies in crime prevention activities under the Executive Order pertaining thereto.

PART ONE

GENERAL PRINCIPLES

I.  GENERALLY [1-36]

A.  In General [1-5]

A crime is generally defined as an act committed, or omitted, in violation of a public law forbidding, or commanding, it. 1  A crime is said to be an offense against the sovereignty, 2   a wrong which the government deems injurious not only to the victim but to the public at large, and which it punishes through a judicial proceeding in the government's name. 3     

The word "crime" is sometimes used to include misdemeanors, 4  as well as felonies. 5  On the other hand, the term is sometimes used in a more limited sense to embrace only more serious offenses. 6    Thus, as used in a statute, the word "crime" has been held not to include, for example, violations of local ordinances. 7   On the other hand, the term "criminals" has been said to be a word of broad significance, which includes those who may have committed the most trifling infractions of a penal statute as well as those guilty of the most heinous offenses. 8

Conduct which constitutes "violation," although it is neither "misdemeanor" nor "felony," is not "lawful conduct." United States v Johnson (1992, CA2 NY) 968 F2d 208, cert den (US)  121 L Ed 2d 355,  113 S Ct 436.

Defendant was entitled to reversal of conviction and new trial on charges of second-degree weapon possession and second-degree assault where court failed to provide jury with applicable definition of "firearm" but instead charged jury on statutory definition which focused on subjective element of "concealability" rather than specific dimensions of weapon, which undermined key defense argument that hinged existence of reasonable doubt on absence of proof of nature or dimensions of weapon used. People v McGrew (1989, 2d Dept)  150 AD2d 729, 541 NYS2d 597.

A summary offense is a "crime" within the meaning of 18 Pa CS § 106, notwithstanding that summary offenses are not listed under the classes of crimes generally enumerated in the statute since imprisonment is authorized for a summary offense. Commonwealth v Matty (1993, Super Ct) 619 A2d 1383.

Footnote 1. Schick v United States,  195 US 65,  49 L Ed 99,  24 S Ct 826; United States v Eaton,  144 US 677,  36 L Ed 591,  12 S Ct 764; Commonwealth v Smith, 266 Pa 511, 109 A 786; State v Watkins, 259 SC 185, 191 SE2d 135, vacated on other grounds  413 US 905,  37 L Ed 2d 1016,  93 S Ct 3053, conformed to 262 SC 178, 203 SE2d 429, app dismd  418 US 911,  41 L Ed 2d 1157,  94 S Ct 3204.

Footnote 2. State ex rel. Keefe v Schmiege,  251 Wis 79, 28 NW2d 345.

Footnote 3. State v Camp, 71 Wash 2d 620, 430 P2d 187, cert den  390 US 983,  19 L Ed 2d 1282,  88 S Ct 1105; Patterson v Natural Premium Mut. Life Ins. Co.,  100 Wis 118, 75 NW 980.

An act, to be criminal, must involve the violation of a public law or a wrong which, because grossly immoral and vicious, affects the public injuriously.  People ex rel. Perkins v Moss, 187 NY 410, 80 NE 383.

Practice Aids: –Katz, Dangerousness:  A Theoretical Reconstruction of the Criminal Law, 19 Buffalo L Rev 1, 21 Buffalo L Rev 603.

Footnote 4. Bennett v State, 252 Ark 128, 477 SW2d 497; Guetling v State, 199 Ind 630, 158 NE 593.

Footnote 5. Kentucky v Dennison,  65 US 66,  16 L Ed 717; Guetling v State, 199 Ind 630, 158 NE 593.

Footnote 6. Schick v United States,  195 US 65,  49 L Ed 99,  24 S Ct 826 (constitutional provision that trial of "crimes" shall be by jury does not include petty offenses); Callan v Wilson,  127 US 540,  32 L Ed 223,  8 S Ct 1301.

Footnote 7. State ex rel. Streit v Justice Court of Chinook Tp., 45 Mont 375, 123 P 405; People v Du Pont (2d Dept)  28 App Div 2d 1135, 284 NYS2d 661.

As to prosecution for ordinance violation as criminal, quasi-criminal, or civil proceeding, see 56 Am Jur 2d,  Municipal Corporations, Counties and Other Political Subdivisions § 415.

Footnote 8. Creeden v Boston & M. R. Co., 193 Mass 280, 79 NE 344.

The same wrongful act may constitute both a crime and a tort. 9   But the crime is held to constitute an offense against the public pursued by the sovereign, whereas the tort is a private injury to be pursued by the injured party. 10  

Practice Aids: Extending the scope of the duty of care under criminal negligence statutes. People v. Heitzman, 18 Cal App 4th 1400 (1993), 21 Am J Crim L 491 (1994).

Footnote 9. Bergman v State, 187 Wash 622, 60 P2d 699,  106 ALR 1007.

Footnote 10. Bergman v State, 187 Wash 622, 60 P2d 699.

As to the distinction between civil and criminal actions generally, see 1 Am Jur 2d,  Actions §§ 43-44.

No act can be considered a crime unless it has been previously made a crime, either by statute or common law. 11  Thus, failure or refusal to perform contractual obligations 12   or bare neglect of a legal duty 13  standing alone, will not warrant conviction of crime.

In some jurisdictions common-law crimes are not recognized; 14    where this is the case, no act, however hurtful or immoral its tendencies, 15  can be treated as a crime unless made so by statute, 16   or by ordinance or regulation adopted pursuant to statutory authority. 17    

Practice Aids: Is there an act requirement in the criminal law? 142 U Pa LR 1529 (1994).

Rule without reason: requiring independent proof of the corpus delicti as a condition of admitting an extrajudicial confession, 27 U SF LR 385 (1993).

Evidence that minor had been sold 30 Xanax tablets, that she consumed 5 of them along with alcohol, and that she subsequently lost consciousness and died, did not warrant finding that her death was result of another person's wanton or reckless conduct (that is, involuntary manslaughter); thus, minor's mother was not entitled to recover from Commonwealth for cost of her funeral under Compensation for Crime Victims Act. Evidence did not warrant finding that she died from drugs that had been sold or given to her in circumstances that could reasonably demonstrate wanton or reckless conduct. Marshall v Commonwealth (1992) 413 Mass 593, 602 NE2d 204.

Footnote 11. Hotch v United States (CA9 Alaska) 212 F2d 280 (disagreed with on other grounds United States v Gavrilovic (CA8 Mo) 551 F2d 1099); Goff v State, 186 Tenn 212, 209 SW2d 13.

Footnote 12. Lane v People, 127 Colo 468, 257 P2d 578.

Refusal to pay a disputed bill does not constitute a crime either at common law or by statute.  Cinquanta v Burdett, 154 Colo 37, 388 P2d 779,  1 ALR3d 840.

Footnote 13. People v Knapp, 206 NY 373, 99 NE 841.

Footnote 14. As to survival of common-law offenses generally, see  §§ 6,  7, infra.

Footnote 15. Smith v State, 12 Ohio St 466.

Footnote 16. Savannah News-Press, Inc. v Harley, 100 Ga App 387, 111 SE2d 259; Higdon v State, 241 Ind 501, 173 NE2d 58; State v Di Paglia, 247 Iowa 79, 71 NW2d 601,  49 ALR2d 1223; Lawton v Hand, 186 Kan 385, 350 P2d 28; State v Truby, 211 La 178, 29 So 2d 578; State v Cantrell, 220 Minn 13, 18 NW2d 681; Lincoln Dairy Co. v Finigan, 170 Neb 777, 104 NW2d 227; People ex rel. Blumke v Foster, 300 NY 431, 91 NE2d 875; State v Cimpritz, 158 Ohio St 490, 49 Ohio Ops 418, 110 NE2d 416; Griffin v State (Okla Crim) 357 P2d 1040.

Although a state has no common-law crimes, a broadly worded statute may cover offenses against public peace, health, and morals, not made punishable elsewhere by legislation and which were known at common law as indictable nuisances.  Multnomah County Fair Ass'n. v Langley, 140 Or 172, 13 P2d 354 (statute punishing any act which grossly injures person or property of another or which grossly disturbs public peace or health, or which openly outrages public decency and is injurious to public morals).

Footnote 17. Viereck v United States,  318 US 236,  87 L Ed 734,  63 S Ct 561; People v Harris (2d Dist) 191 Cal App 2d 754, 12 Cal Rptr 916; State v Amman, 78 Ohio App 10, 33 Ohio Ops 379, 68 NE2d 816.

In order for a state to impose criminal penalties on an individual, it must be shown that he committed some unlawful act or engaged in some prohibited course of conduct, 18  together with a wrongful intent or mens rea. 19   Thus, no person can lawfully be convicted of an offense where, although intending to commit a crime, he did nothing in execution of such intention. 20   Moreover, a lawful act cannot be rendered unlawful merely because the actors intended to follow it by an unlawful act, 21  and one can be punished only for an offense which he has actually committed, not for an offense which he may commit in the future. 22  Nor may an act which is not an offense when committed become an offense by a subsequent independent act of a party with which it has no connection, 23  or by a subsequent independent action of other third persons. 24

It has been stated that, although intent may in some circumstances make criminal an otherwise innocent act, 25     the law does not concern itself with mere guilty intention, unconnected with any overt act or outward manifestation. 26   One's use of language may be sufficient to constitute an offense, however, in some circumstances, 27    subject to constitutional limitations on the punishment of utterances. 28  

The term "legal impossibility," as applied to a choate crime, is merely a catch phrase for saying that, as a matter of law, the statute under which the defendant is charged does not prohibit his conduct. It follows that if the statute only prohibits certain conduct, it is legally impossible to violate it by engaging in different conduct. People v Jerome (1984, 3d Dist) 160 Cal App 3d 1087, 207 Cal Rptr 199.

Footnote 18. Powell v Texas,  392 US 514,  20 L Ed 2d 1254,  88 S Ct 2145; Hall v State, 20 Md App 170, 314 A2d 704.

Footnote 19. As to mental state or intent essential to commission of crime, see  §§ 129 et seq., infra.

Footnote 20. State v McFetridge,  84 Wis 473, 54 NW 1, reh den  84 Wis 530, 54 NW 998.

Footnote 21. People v Werner, 16 Cal 2d 216, 105 P2d 927, (ovrld on other grounds People v Camodeca, 52 Cal 2d 142, 338 P2d 903).

Footnote 22. State v Hall, 251 NC 211, 110 SE2d 868 (conviction for wilful nonsupport cannot rest on proof of nonsupport which occurred before trial, but after date of original warrant on which the trial was had).

Footnote 23. United States v Fox,  95 US 670,  24 L Ed 538.

Footnote 24. Terry v United States (CA8 Mo) 131 F2d 40.

Footnote 25. Badders v United States,  240 US 391,  60 L Ed 706,  36 S Ct 369.

Footnote 26. People v Belcastro, 356 Ill 144, 190 NE 301; Ex parte Smith, 135 Mo 223, 36 SW 628; State v Evans, 216 SC 328, 57 SE2d 756.

Footnote 27. As to when opprobrious words may constitute breach of peace or disorderly conduct, see 12 Am Jur 2d,  Breach of Peace and Disorderly Conduct §§ 10,  37.

Footnote 28. Freedom of speech and press as fundamental right generally, see 16A Am Jur 2d,  Constitutional Law §§ 496 et seq.

To constitute a crime, the act in question must ordinarily be one to which is annexed, upon conviction, a certain specified punishment. 29  And it has been held that a statute declaring an act unlawful, but prescribing no penalty, does not create a crime. 30   On the other hand, prescribing a punishment for an act impliedly forbids it and is sufficient to make it a crime without any explicit declaration that the act is unlawful. 31   In this respect, a provision for a fine is usually sufficient, 32  notwithstanding that the amount may be small. 33

Provision for imprisonment in a statute does not make an act or proceeding criminal in nature when applied, not as punishment, but to compel immediate obedience to the law, as, for example, contempt proceedings. 34

Footnote 29. United States v Futura, Inc. (ND Fla) 339 F Supp 162; State ex rel. Streit v Justice Court of Chinook Tp., 45 Mont 375, 123 P 405 (statutory definition).

Footnote 30. Mossew v United States (CA2 NY) 266 F 18,  11 ALR 1261.

Footnote 31. State v Central Lumber Co. 24 SD 136, 123 NW 504, affd  226 US 157,  57 L Ed 164,  33 S Ct 66.

Footnote 32. United States v Futura, Inc. (ND Fla) 339 F Supp 162; Bopp v Clark, 165 Iowa 697, 147 NW 172.

Footnote 33. State v Ostwalt, 118 NC 1208, 24 SE 660 (provision for a $10 fine held to convert bastardy from civil to criminal proceeding; ovrld on other grounds State v Liles, 134 NC 735, 47 SE 750).

The hiring of a schoolteacher at less than the minimum wage, in violation of a statute which provides that any school officer violating the act shall be fined from $25 to $100, is a crime, within the meaning of a statute defining a "crime" as an act committed in violation of a public law forbidding it.  Bopp v Clark, 165 Iowa 697, 147 NW 172.

Footnote 34. Re Clark, 65 Conn 17, 31 A 522.

B.  Application and Effect of Common Law [6-9]

1.  In General [6, 7]

In some jurisdictions the common law prevails unless changed by statute 35  and an act may be indictable as a common-law offense though the act is not forbidden by statute. 36  This result may occur where there has been blanket legislative adoption, so far as consistent with constitution and statute, of the common law as to crimes, or some part thereof, 37  or of the common law generally. 38   It has been held that any act which directly injures or tends to injure the public to such an extent as to require state interference may be punished as a common-law misdemeanor, even though no exact precedent can be found. 39   And it has been said that, since the common law gives expression to the changing customs and sentiment of the people, its scope extends to those acts which, being highly indecent, are against good morals. 40

In a number of jurisdictions, including the United States, 41  there are no common-law crimes. 42   In several states, it is expressly declared by statute that no act can be a crime unless made so by legislation. 43

There is no federal common law of crimes. Central Bank, N. A. v First Interstate Bank, N. A. (US)  128 L Ed 2d 119,  114 S Ct 1439.

When a statute punishes a crime known at common law without defining its elements, the common law controls. The trial court did not err in instructing the jury that a taking of property from a cash register while it was being operated by a store clerk would be a taking "from the person." State v BuckoM (1991) 328 NC 313, 401 SE2d 362.

Footnote 35. Commonwealth v Donoghue, 250 Ky 343, 63 SW2d 3,  89 ALR 819; State v Bass, 255 NC 42, 120 SE2d 580,  86 ALR2d 259.

A statute providing that the common law of England in relation to crimes shall be in full force and effect in the state where there is no existing provision by statute on the subject is not void for vagueness.

But statute adopting common law within state cannot be used to impose common law crime of nonfeasance against public officials who exercise their powers of office in ways displeasing to certain segments of the public, unless such conduct directly conflicts with written laws prescribing obligations of offices which they hold. State v Egan (Fla) 287 So 2d 1.

Footnote 36. La Tour v Stone, 139 Fla 681, 190 So 704; Commonwealth v Wiman, 308 Ky 565, 215 SW2d 283; State v Bradbury, 136 Me 347, 9 A2d 657; Reddick v State, 219 Md 95, 148 A2d 384, cert den  360 US 930,  3 L Ed 2d 1544,  79 S Ct 1448; State ex rel. Maples v Quinn, 217 Miss 567, 64 So 2d 711; State v Ivanhoe, 238 Mo App 200, 177 SW2d 657; State v Dawson, 272 NC 535, 159 SE2d 1; Commonwealth v Slome, 147 Pa Super 449, 24 A2d 88; Willard v State, 174 Tenn 642, 130 SW2d 99.

While the court has no right to invent new crimes, it has the right to ascertain and declare what were crimes at common law. State v Schleifer, 99 Conn 432, 121 A 805.

Attempted suicide may be an indictable misdemeanor in North Carolina, by virtue of the common law.  State v Willis, 255 NC 473, 121 SE2d 854.

Solicitation to commit a crime is indictable as a common-law offense, there being no statute abrogating it.  Gervin v State, 212 Tenn 653, 371 SW2d 449.

Footnote 37. La Tour v Stone, 139 Fla 681, 190 So 704 (except as to modes and degrees of punishment); State ex rel. Maples v Quinn, 217 Miss 567, 64 So 2d 711 (every offense not provided for by statute shall be indictable as heretofore at common law).

Footnote 38. State v Ivanhoe, 238 Mo App 200, 177 SW2d 657; State v Willis, 255 NC 473, 121 SE2d 854.

Footnote 39. Commonwealth v Mochan, 177 Pa Super 454, 110 A2d 788 (upholding conviction for obscene anonymous phone calls).

All such crimes as especially affect public society are indictable at common law; the test is not whether precedents can be found, but whether they injuriously affect "the public police and economy."  Commonwealth v McHale, 97 Pa 397; Commonwealth ex rel. Swisher v Ashe, 145 Pa Super 454, 21 A2d 479.

Footnote 40. State v Bradbury, 136 Me 347, 9 A2d 657 (upholding conviction for disposing of human body by burning in household furnace).

Footnote 41. Jerome v United States,  318 US 101,  87 L Ed 640,  63 S Ct 483; Donnelley v United States,  276 US 505,  72 L Ed 676,  48 S Ct 400; Dickey v United States (CA5 Fla) 404 F2d 882.

See Kendall v United States,  37 US 524,  9 L Ed 1181, Where it was stated that the principle that there are no common-law offenses against the United States did not extend to the District of Columbia, the court pointing out that the common law was in effect in Maryland when the District of Columbia was created, and by act of Congress accepting the cession and assuming jurisdiction over it, it was specifically provided that "the laws of the state of Maryland, as they now exist, shall be and continue in force."

Footnote 42. State v Bowling, 5 Ariz App 436, 427 P2d 928; Re Brown, 9 Cal 3d 612, 108 Cal Rptr 465, 510 P2d 1017, cert den  416 US 950,  40 L Ed 2d 300,  94 S Ct 1959; State v Lopez, 156 Ind App 379, 296 NE2d 918; State v Heymann, 256 La 18, 235 So 2d 78.

Footnote 43. Sopher v State, 169 Ind 177, 81 NE 913; Ex parte Lingenfelter, 64 Tex Crim 30, 142 SW 555.

In jurisdictions where common-law offenses remain in force, a statute does not abrogate a common-law offense in the absence of an express or implied provision to that effect. 44   In such circumstances, the statute may be considered merely cumulative to the common-law offense. 45   Thus, when the statutory offense does not cover the same ground as the common-law offense, the latter offense remains in effect. 46   And where the legislature adopts an offense from the common law, making it statutory, there is no implied repeal of the common law with respect to other offenses of the same general character. 47   On the other hand, a statute which deals with an entire subject matter is generally construed as abrogating the common law as to that subject. 48  Thus, where the common law as to crime is in force, except as abrogated or modified by statute, it has been held that, on adoption of a state penal code, all common-law offenses are abolished. 49

A state legislature, in defining a crime, is free to change or modify the common law, 50   and where this is done the statutory definition of an offense is held to prevail over the common-law definition. 51  Accordingly, where an offense is both created and described by statute, the common law as to that offense is abrogated 52  and there can be no resort to the common law to add to or detract from the effect of the statutory language. 53    Under this view, where an offense is well-defined by the statute, any common-law requirement which the statute does not mention is abolished. 54   And common-law, custom, or so-called unwritten law can supply no excuse or justification for the act which the statute forbids. 55   Some jurisdictions, however, take the view that it is presumed that the legislature did not intend to alter the common law, unless the intent to do so is clearly expressed, 56  and that where no statute contravenes a common-law rule, the legislature's silence indicates intent that the common-law rule should prevail. 57  Some courts make a distinction in this respect between crimes which existed at common law and crimes which did not.  In the latter category, the court is limited to the statutory definition; in the former, the court may supply any defect in the statutory definition by applying the common-law elements of the particular crime. 58    However, common-law rules and incidents, such as punishing one who assists a crime as well as one who commits it, may be applied even to a statutory offense not punishable at common law. 59  

Where a statute creates a new offense and prescribes the penalty, no other penalty can be imposed. 60  And there is authority to the effect that where the legislature adopts a common-law offense as a statutory one and prescribes a different penalty, this amounts to a repeal, by necessary implication, of the common-law provision as to the penalty. 61   In other jurisdictions, however, a statute which merely authorizes a particular mode of procedure and punishment is presumed to intend only a cumulative remedy, in which case the common-law liability remains. 62  

If an act is an offense against both common law and statute, the prosecutor may, in some jurisdictions, proceed under either 63  or both 64  sanctions.  It is sometimes provided by statute that a defendant may not be indicted at common law if there is a statute covering the same offense; 65  but even under such a statute, it is held that there is no conflict when the common-law offense is broader than the statutory offense. 66    

Footnote 44. State v Peterson (Fla App D2) 192 So 2d 293; Commonwealth v Wiman, 308 Ky 565, 215 SW2d 283, upholding prosecution for common-law offense of maintaining nuisance, though based on acts denounced in specific statutes.

Footnote 45. State v Peterson (Fla App D2) 192 So 2d 293.

Footnote 46. Lutz v State, 167 Md 12, 172 A 354; State v Wilson, 43 NH 415.

Even where a statute has been enacted covering forgery, the common-law offense is still applicable where the statute was not intended to cover the whole field or to repeal the common law. Reddick v State, 219 Md 95, 148 A2d 384, cert den  360 US 930,  3 L Ed 2d 1544,  79 S Ct 1448.

A statute making it a felony for two or more persons to band themselves together for certain specified purposes or to do any felonious act does not repeal the common-law offense of conspiracy except as to the acts covered. Commonwealth v Donoghue, 250 Ky 343, 63 SW2d 3.

Footnote 47. State v One Ford Auto., 151 Ark 29, 235 SW 378.

Footnote 48. Lutz v State, 167 Md 12, 172 A 354.

If a statute revises the whole subject of an offense, and, for example, makes that a qualified offense which was before absolute, or changes the time or mode of prosecution or the degree of punishment, the common law may be abrogated.  State v Wilson, 43 NH 415.

Though the statute fails to provide for a particular case, where it is clear that the legislature intended to cover the subject there is no room for the operation of the common law.  State v Collins, 28 NM 230, 210 P 569.

Footnote 49. State v Cantrell, 220 Minn 13, 18 NW2d 681; State v Nussbaum, 261 Or 87, 491 P2d 1013.

Footnote 50. Gilbert v United States,  370 US 650,  8 L Ed 2d 750,  82 S Ct 1399; Gendron v United States (CA8 Mo) 295 F2d 897; Commonwealth v Jackson, 369 Mass 904, 344 NE2d 166; Slusser v State, 155 Tex Crim 160, 232 SW2d 727 (superseded by statute as stated in Komurke v State (Tex Crim) 562 SW2d 230).

Footnote 51. Traxler v State, 96 Okla Crim 231, 251 P2d 815.

Only where the legislature has not properly defined the term is it necessary to look to its common-law meaning.  People v Pociask, 14 Cal 2d 679, 96 P2d 788.

Where the statute defines the terms "principal" and "accessory" substantially as they were understood at common law, these are nevertheless to be treated as statutory definitions.  Chambers v State, 194 Ga 773, 22 SE2d 487, ans conformed to 68 Ga App 338, 23 SE2d 545.

The courts resort to common-law definitions only where general terms are used to designate crime.  State v Coomes, 170 Neb 298, 102 NW2d 454.

Footnote 52. Bentley v Commonwealth (Ky) 269 SW2d 253.

Footnote 53. State v Di Paglia, 247 Iowa 79, 71 NW2d 601,  49 ALR2d 1223.

Footnote 54. McAdams v State, 226 Ind 403, 81 NE2d 671.

The elements necessary to constitute the crime must be gathered wholly from the statute, and the crime must be described within the terms of the statute.  State v Cimpritz, 158 Ohio St 490, 49 Ohio Ops 418, 110 NE2d 416.

The fact that intent was a requirement of the common-law offense does not necessarily establish that it is an element of a similar statutory offense, the definition of which does not mention intent. Gendron v United States (CA8 Mo) 295 F2d 897.

Footnote 55. People v Harris (2d Dist) 191 Cal App 2d 754, 12 Cal Rptr 916; State v Dabbs, 228 La 960, 84 So 2d 601.

Footnote 56. Bloomfield v Brown, 67 RI 452, 25 A2d 354.

Footnote 57. State v Dailey, 191 Ind 678, 134 NE 481 (common-law rule that victim must die within a year and a day after wound is inflicted in order to make killing either murder or manslaughter).

Footnote 58. State v Bigelow, 76 Ariz 13, 258 P2d 409,  39 ALR2d 979.

Footnote 59. Adkins v Commonwealth, 175 Va 590, 9 SE2d 349,  131 ALR 1312 (competent party to bigamous marriage punishable as aider and abettor, though bigamy not common-law offense and statute provided only for punishment of twice-married party).

Footnote 60. State v Southern R. Co., 145 NC 495, 59 SE 570.

Footnote 61. State v One Ford Auto., 151 Ark 29, 235 SW 378; Bentley v Commonwealth (Ky) 269 SW2d 253.

Footnote 62. State v Mockus, 120 Me 84, 113 A 39; State ex rel. Atty. Gen. v Hildreth, 82 Vt 382, 74 A 71.

Footnote 63. People v Amore, 369 Ill 245, 16 NE2d 720.

Footnote 64. People v Curran, 286 Ill 302, 121 NE 637.

Footnote 65. Commonwealth v Clark, 123 Pa Super 277, 187 A 237.

Footnote 66. Commonwealth v Ackerman, 176 Pa Super 80, 106 A2d 886, cert den  348 US 951,  99 L Ed 743,  75 S Ct 438.

2.  Principles of Common Law as Applied to Particular Matters [8, 9]

In some jurisdictions, there is no common law of criminal procedure, the subject being regulated entirely by statute. 67  In others, notwithstanding there may be no common-law offenses, the common law of criminal procedure prevails, unless a statute or rule provides otherwise. 68  It is in some instances provided by statute that this shall be the case. 69    And elements of common-law civil procedure may be resorted to in criminal cases. 70  However, a common-law rule, though not changed by statute, need not be followed where changing conditions have made it obsolete. 71        

Footnote 67. State v Thompson, 241 Iowa 16, 39 NW2d 637; State v Healy, 156 Ohio St 229, 46 Ohio Ops 110, 102 NE2d 233.

Footnote 68. Ex parte United States (CA7 Wis) 101 F2d 870, affd  308 US 519,  84 L Ed 441,  60 S Ct 177; Ex parte Lamar (CA2d) 274 F 160, affd  260 US 711,  67 L Ed 476,  43 S Ct 251 (method or form of judgment); Tucker v United States (CA7 Ill) 196 F 260 (definition of nolo contendere plea); State v Hataway, 144 La 138, 80 So 227; State v Anderson, 119 Tex 110, 26 SW2d 174.

Footnote 69. People v Spann, 20 Ill 2d, 338, 169 NE2d 781,  96 ALR2d 764; Bland v State, 18 Okla Crim 514, 196 P 732.

A statute adopting the common law necessarily adopts that part of it applicable to the trial of criminal cases.  Kolkman v People, 89 Colo 8, 300 P 575.

Footnote 70. Ex parte United States (CA7 Wis) 101 F2d 870, affd  308 US 519,  84 L Ed 441,  60 S Ct 177; Commonwealth v Lehigh V. R. Co., 165 Pa 162, 30 A 836.

Footnote 71. Durham v United States, 94 App DC 228, 214 F2d 862,  45 ALR2d 1430 (ovrld on other grounds United States v Brawner 153 App DC 1, 471 F2d 969) and (disagreed with on other grounds United States v Hendrix (CA2 NY) 542 F2d 879, cert den  430 US 959,  51 L Ed 2d 810,  97 S Ct 1609) and (disagreed with on other grounds Government of Virgin Islands v Fredericks (CA3 VI) 578 F2d 927); Ex parte United States (CA7 Wis) 101 F2d 870, affd  308 US 519,  84 L Ed 441,  60 S Ct 177.

Where a statute creating or describing a criminal offense uses a general term that is not defined, the general practice is to give the term its common-law meaning. 72  It must appear that the meaning sought to be given was accepted and recognized as such at common law 73  and that is was in existence at the time the statute in question was enacted. 74    

The common-law definition of an offense will be applied where a statute creating an offense refers to it by its common-law name, without further definition, 75   or where the statute merely prescribes the penalty. 76  The common law must be resorted to for the distinction between two crimes where the statutes do not define either but merely prescribe the penalties. 77   And where a statute defining an offense does so merely in generic common-law terms, the court must look to the common law to ascertain the particular act or acts which may constitute the crime. 78   This rule applies even though the jurisdiction is one which has no offenses in force by reason of the common law. 79

Practice Aids: Validity, construction, and application of federal "crack-house statute" criminalizing maintaining place for purpose of making, distributing, or using controlled drugs (21 USCS §  856)  116 ALR Fed 345.

Rule 14 of the Federal Rules of Criminal Procedure, which permits a Federal District Court to grant a severance of defendants if it appears that a defendant or the prosecution is prejudiced by a joinder, does not require severance as a matter of law where codefendants present mutually antagonistic defenses, given that (1) such defenses are not prejudicial per se, and (2) Rule 14 does not require severance even if prejudice is shown, but Rule 14 leaves the determination of risk of prejudice and the tailoring of the relief to be granted, if any, to the District Court's sound discretion. Zafiro v United States (1993, US)  122 L Ed 2d 317,  113 S Ct 933, 93 CDOS 535, 93 Daily Journal DAR 1049.

Footnote 72. United States v Brandenburg (CA3 NJ) 144 F2d 656; Jones v State, 101 Ga App 851, 115 SE2d 576; State v Gallegos, 193 Neb 651, 228 NW2d 615.

Where a statute making it an offense to keep and maintain a house of ill fame does not define a house of ill fame, it is necessary to resort to the common law for such definition.  State v Pyles, 86 W Va 636, 104 SE 100.

Footnote 73. United States v Turley,  352 US 407,  1 L Ed 2d 430,  77 S Ct 397,  56 ALR2d 1300 (terms "stolen" and "stealing" held to have no recognized common-law meaning).

Footnote 74. Gilbert v United States,  370 US 650,  8 L Ed 2d 750,  82 S Ct 1399.

Footnote 75. State v Di Paglia, 247 Iowa 79, 71 NW2d 601,  49 ALR2d 1223; State v Thayer (Me) 281 A2d 315.

Footnote 76. State v Bell, 153 Conn 540, 219 A2d 218; White v Commonwealth, 242 Ky 43, 45 SW2d 491.

Footnote 77. Montgomery v Commonwealth (Ky) 346 SW2d 479.

Footnote 78. McAdams v State, 226 Ind 403, 81 NE2d 671; State v Pratt, 151 Me 236, 116 A2d 924; State v Ayers, 49 Or 61, 88 P 653.

Where the statute defines an offense, but does not set forth its constituent elements, the latter are as they were at common law. State v Johnson (Mo) 293 SW2d 907.

Footnote 79. Piercy v State, 92 Ga App 599, 89 SE2d 554 (ovrld on other grounds Rushing v State 133 Ga App 434, 211 SE2d 389) as stated in White v State 138 Ga App 470, 226 SE2d 296; Multnomah County Fair Ass'n v Langley, 140 Or 172, 13 P2d 354.

C.  Declaration and Punishment of Offenses as Legislative Function [10-36]

1.  In General [10-13]

In jurisdictions in which common-law crimes no longer exist as such, every charge of crime must have a clear legislative basis; 80  it has been held that defendants are not to be convicted merely because their conduct thwarts a general purpose of specific commands which they have not disobeyed; nor are persons to be held guilty of offenses which the statutes have omitted, though by inadvertence, to define and condemn. 81  To sustain a charge of crime, moreover, the statute alleged to have been violated must have been duly enacted by the legislature 82  and must have been prior in time to commission of the act charged. 83

Practice Aids: What constitutes playing "mitigating role" in offense allowing decrease in offense level under United States Sentencing Guideline § 381.2, 18 USCS Appendix.  100 ALR Fed 156.

Congress' delegation of authority to the United States Sentencing Commission in the Sentencing Reform Act of 1984 (SRA) (18 USCS §§  3551 et seq., 18 USCS Appx Ch 1-7, 28 USCS §§  991-998) to formulate guidelines for the determinate sentencing of persons convicted of federal crimes does not violate the requirement of the Federal Constitution that all legislative power shall be vested in the Congress (Art I, § 1), but is sufficiently detailed and specific to meet constitutional standards, because Congress, though granting the Commission substantial discretion in formulating guidelines, has legislated a full hierarchy of punishment, stipulated the most important offense and offender characteristics, outlined the policies which prompted establishment of the Commission, explained what the Commission should do and how to do it, and set out specific directiVes to govern particular situations, where the SRA directs the Commission (1) to pursue three general goals; (2) to pursue four specified purposes of sentencing; (3) to develop a system of sentencing ranges for each category of offense involving each category of defendant, which ranges must be consistent with pertinent provisions of Title 18 of the United States Code and must allow no more than a specified degree of divergence between maximum and minimum sentences of imprisonment; (4) to use current average sentences as a starting point for structuring of sentencing ranges; (5) to consider seven specified factors m formulating categories of offenses; (6) to consider 11 specified factors in formulating categories of defendants; (7) to avoid considering an offender's race, sex, national origin, creed, and socioeconomic status, or other factors which might serve as proxies for those forbidden factors; (8) to provide terms of confinement 'at or near statutory maxima for certain violent or drug-related crimes, especially by recidivists; (9) to assure substantial prison terms for certain other types of offenses; (10) to insure that the guidelines reflect the appropriateness of imprisonment for violent crimes resulting in serious bodily injury and the inappropriateness of imprisonment for first offenders convicted of lesser crimes; and (11) to reflect certain specified aggravating and mitigating circumstances. Mistretta v United States (1989, US)  102 L Ed 2d 714,  109 S Ct 647.

The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute; judicial determination of the mental state required for commission of a federal crime requires construction of the statute and inference of the intent of Congress. Staples v United States (US)  128 L Ed 2d 608,  114 S Ct 1793.

Sentence of former director of halfway house who pleaded guilty to violating 18 USCS §  201(b)(2) by accepting bribe should not be enhanced by guideline § 2C1.1(c)(3), where director provided passes and drugs to halfway house inmate in exchange for sadomasochistic sex, because threat of physical injury in guideline only refers to harm to person or to be incurred by refusal to comply with demand, not prospect of harm unconnected with refusal to cooperate. United States v Alter (1992, SD NY) 788 F Supp 756.

Defendant's conviction of illegally discharging pollutants into wetlands in violation of Clean Water Act did not violate due process, even though conviction was based on testimony based on subsequently adopted federal manual defining wetlands where defendant knew that areas were wetlands and had fair warning that his conduct was subject to criminal penalties. United States v Ellen (1992, CA4 Md) 961 F2d 462, amd (CA4 Md) slip op.

Footnote 80. Viereck v United States,  318 US 236,  87 L Ed 734,  63 S Ct 561.

Footnote 81. Viereck v United States,  318 US 236,  87 L Ed 734,  63 S Ct 561.

Footnote 82. Hotch v United States (CA9 Alaska) 212 F2d 280 (disagreed with on other grounds United States v Gavrilovic (CA8 Mo) 551 F2d 1099); State v Amman, 78 Ohio App 10, 33 Ohio Ops 379, 68 NE2d 816.

Footnote 83. People v Harris (2d Dist) 191 Cal App 2d 754, 12 Cal Rptr 916.

The power to declare what acts shall constitute crimes, and what acts shall not, and to prescribe punishment for acts prohibited belongs to the legislative branch of government. 84  For example, the legislature has power to provide that an act done by an infant is not a crime 85  or that an offense denominated as a "family offense" is not be prosecuted as a crime until the judge of a designated court so determines. 86  

The power to declare certain acts or conduct to be crimes is said to be inherent in the state legislature; 87   it is also comprehended in the general grant of legislative power contained in the state constitution. 88   Moreover, the power to declare acts criminal is exclusive in the legislature; it is not shared by the courts. 89   Nor have courts the power to refuse to apply a duly enacted criminal statute. 90

The wisdom and expediency of a criminal statute is a matter within the sole province of the legislature. 91  And, so long as constitutional provisions are not infringed, 92   the will of the legislature with respect to declaration and punishment of crime is said to be virtually absolute, 93    though the exercise of the power is made subject to certain limitations. 94  

Practice Aids: Allen, The Erosion of Legality In American Criminal Justice: Some latterday adventures of the nulla poena principle. 29 Ariz LR 385, 1987.

Due process traditionally requires that criminal laws provide prior notice both of the conduct to be prohibited and of the sanction to be imposed. International Union, United Mine Workers v Bagwell (1994, US)  129 L Ed 2d 642,  114 S Ct 2552, 94 CDOS 5027, 94 Daily Journal DAR 9264, 146 BNA LRRM 2641, 8 FLW Fed S 399.

City could not enact an ordinance imposing criminal penalties, where accused was arrested while riding a bicycle for violation of a city ordinance requiring that bicycles be equipped with a bell or gong, and argued that the ordinance was preempted by state statutes, because the state has determined that traffic violations, including those related to bicycles, should be punished by civil penalties, and a city may not impose criminal penalties for conduct essentially identical to that which the state has decriminalized. Thomas v State (1993, Fla) 614 So 2d 468, 18 FLW S 46.

The power of a society or association for the prevention of cruelty to animals to initiate criminal proceedings is not an unconstitutional delegation of legislative or executive power since such the statute creating such power, 18 Pa CS § 5511(i), does not create vigilante groups that are unconstrained by external standards; the actions of such societies and associations are regulated by the Rules of Criminal Procedure, by the probable cause requirements for search warrants and by the added constraints of case law. Commonwealth v Barnes (1993, Super Ct) 629 A2d 123.

The power of a society or association for the prevention of cruelty to animals to initiate criminal proceedings is not an improper usurpation of the rule-making authority given to the judicial branch under Art V, § 10(c) of the Pennsylvania Constitution. Commonwealth v Barnes (1993, Super Ct) 629 A2d 123.

Footnote 84. Ex parte United States,  242 US 27,  61 L Ed 2d 129,  37 S Ct 72; State v Bolin, 200 Kan 369, 436 P2d 978; Ex parte Berger, 193 Mo 16, 90 SW 759; Ex parte Bates, 20 NM 542, 151 P 698; Lawton v Steele, 119 NY 226, 23 NE 878, reh den (NY) 23 NE 1151 and affd  152 US 133,  38 L Ed 385,  14 S Ct 499.

As to delegation to administrative agencies of right to make regulations involving penalty or crime, see 1 Am Jur 2d,  Administrative Law § 127.

Footnote 85. People v Lewis, 260 NY 171, 183 NE 353,  86 ALR 1001, cert den and app dismd  289 US 709,  77 L Ed 1464,  53 S Ct 786.

Footnote 86. People v Johnson,  20 NY2d 220, 282 NYS2d 481, 229 NE2d 180.

Footnote 87. State v Brewer, 258 NC 533, 129 SE2d 262,  1 ALR3d 1323, app dismd  375 US 9,  11 L Ed 2d 40,  84 S Ct 72; State v Feilen, 70 Wash 65, 126 P 75.

Footnote 88. Lawton v Steele, 119 NY 226, 23 NE 878, reh den (NY) 23 NE 1151 and affd  152 US 133,  38 L Ed 385,  14 S Ct 499; Dendy v Wilson, 142 Tex 460, 179 SW2d 269.

Footnote 89. Bradley v State, 79 Fla 651, 84 So 677; State v Moilen, 140 Minn 112, 167 NW 345; Youngstown v De Loreto, 19 Ohio App 2d 267, 48 Ohio Ops 2d 393, 251 NE2d 491; Stewart v State, 4 Okla Crim 564, 109 P 243.

Footnote 90. The court has no power to refuse to apply a criminal statute on the ground that the violation is merely technical.  People v Hupp, 53 Colo 80, 123 P 651.

Footnote 91. State v McCormick, 142 La 580, 77 So 288; Commonwealth v Murphy, 165 Mass 66, 42 NE 504; State v Moilen, 140 Minn 112, 167 NW 345; State v Brewer, 258 NC 533, 129 SE2d 262,  1 ALR3d 1323, app dismd  375 US 9,  11 L Ed 2d 40,  84 S Ct 72; State v Woodward, 68 W Va 66, 69 SE 385.

Footnote 92. As to limitations on legislative power contained in state or federal constitutions, see  § 12, infra.

Footnote 93. Central Lumber Co. v South Dakota,  226 US 157,  57 L Ed 164,  33 S Ct 66; Coffey v County of Harlan,  204 US 659,  51 L Ed 666,  27 S Ct 305; State v Stuart, 194 Mo 345, 92 SW 878; State v Heldenbrand, 62 Neb 136, 87 NW 25; Park v State, 42 Nev 386, 178 P 389; People v West, 106 NY 293, 12 NE 610; State v Woodward, 68 W Va 66, 69 SE 385.

Legislative power to define crimes and fix punishments is virtually unlimited.  State v Feilen, 70 Wash 65, 126 P 75.

Footnote 94.  § 12, infra.

The power of the legislative branch of government to define crimes is subject to all limitations contained in state and federal constitutions. 95

And though the wisdom or expediency of a statute is a matter solely for the legislature, 96 a statute, to be upheld, must have some substantial relation to the ends sought to be accomplished. 97      

It is recognized that the legislature may not declare that to be a crime which in its nature is and must, under all circumstances, be innocent. 98   And it has been held that the legislature has no power to pronounce the performance of an innocent act criminal where the public health, safety, comfort, or welfare is not interfered with. 99   The legislature may nevertheless forbid and penalize acts formerly considered innocent and lawful. 1   And it may do so regardless of whether moral turpitude is involved 2  and without respect to the intrinsic quality of the act involved. 3

Practice Aids: Validity of law criminalizing wearing dress of opposite sex. (See also 16A Am Jur 2d, Constitutional Law § 566.)  12 ALR4th 1249.

Footnote 95. Lawton v Steele, 119 NY 226, 23 NE 878, reh den (NY) 23 NE 1151 and affd  152 US 133,  38 L Ed 385,  14 S Ct 499.

The bare exercise of a constitutional right cannot be made a crime. Gillespie v People, 188 Ill 176, 58 NE 1007; Re Flukes, 157 Mo 125, 57 SW 545.

Footnote 96.  § 11, supra.

Footnote 97. People v Belcastro, 356 Ill 144, 190 NE 301; State v Brewer, 258 NC 533, 129 SE2d 262,  1 ALR3d 1323, app dismd  375 US 9,  11 L Ed 2d 40,  84 S Ct 72.

Statute which creates a crime is valid exercise of police power of state so long as there is reasonable relationship between public welfare and act proscribed.  People v Judiz,  38 NY2d 529, 381 NYS2d 467, 344 NE2d 399.

Footnote 98. Commonwealth v O'Harrah (Ky) 262 SW2d 385; Lawton v Steele, 119 NY 226, 23 NE 878, reh den (NY) 23 NE 1151 and affd  152 US 133,  38 L Ed 385,  14 S Ct 499.

Footnote 99. Horwich v Walker-Gordon Laboratory Co., 205 Ill 497, 68 NE 938; Coffeyville Vitrified Brick & Tile Co. v Perry, 69 Kan 297, 76 P 848.

Footnote 1. Des Moines v Manhattan Oil Co., 193 Iowa 1096, 184 NW 823,  23 ALR 1322, supp op, reh overr 193 Iowa 1117, 188 NW 921; Park v State, 42 Nev 386, 178 P 389; Rhodes v Sperry & Hutchinson Co., 193 NY 223, 85 NE 1097, affd  220 US 502,  55 L Ed 561,  31 S Ct 490; State v Thompson, 47 Or 492, 84 P 476.

Footnote 2. State v Heldenbrand, 62 Neb 136, 87 NW 25; Odenthal v State, 106 Tex Crim 1, 290 SW 743.

Footnote 3. Under many statutes, the criminality of an act consists wholly in the fact that it is prohibited and not at all in its intrinsic quality.  People v West, 106 NY 293, 12 NE 610.

The administration of criminal justice is predominantly committed to the states. 4   Unlike the several state legislatures, Congress has no general power of defining offenses and punishing offenders. 5   However, Congress does have power to define offenses and provide for punishment of offenders as an appropriate means of carrying into execution its limited grant of legislative powers. 6  And where properly enacted within the limits of Congressional power, a federal criminal statute may be neither enlarged nor diminished by a state statute. 7  

It is competent for Congress to enforce by suitable penalties all legislation necessary or proper to the execution of any power with which the federal government is entrusted.  Any act committed with a view of evading such legislation or fraudulently securing its benefits may be made an offense against the United States. 8   And Congress, it is recognized, may create crimes in order to protect the general effectiveness of the federal government in all its operations. 9    

In view of what is recognized as the citizen's dual allegiance, 10     the same wrongful act may constitute an offense against both state and federal governments and be punishable by either or both. 11  Moreover, the fact that the state has a more serious problem in the area involved may justify imposition by the state of a penalty more severe than that under the federal statute. 12       

An executive order issued by the President of the United States in 1968 designates the Attorney General as the official to facilitate and coordinate criminal law enforcement activities and crime prevention programs of all federal departments and agencies and the activities of such entities relating to the development and implementation of federal programs designed to assist state and local law enforcement agencies and crime prevention activities. The order directs each federal department and agency to cooperate with the Attorney General in performance of the designated functions and, to the extent permitted by law and within the limits of available funds, to furnish him such reports or assistance as he may request.  It is further provided that the designated officer may promulgate such rules and regulations and take such actions as he deems necessary or appropriate to carry out his functions under the order. 13  

Questions as to whether an "aggravating circumstance" provision of a state's capital sentencing statute is properly applied to a particular capital defendant's case are primarily questions of state law; a state court's application of a valid aggravating circumstance violates the Federal Constitution only if no reasonable sentencer could find the circumstance to exist. Arave v Creech (1993, US)  123 L Ed 2d 188,  113 S Ct 1534, 93 CDOS 2320, 93 Daily Journal DAR 3980, 7 FLW Fed S 125.

Footnote 4. Rochin v California,  342 US 165,  96 L Ed 183,  72 S Ct 205,  25 ALR2d 1396.

Footnote 5. Moore v Illinois,  55 US 13,  14 L Ed 306.

Footnote 6. Rochin v California,  342 US 165,  96 L Ed 183,  72 S Ct 205,  25 ALR2d 1396.

An act committed within a state, whether for a good or bad purpose, or whether with an honest or a criminal intent, cannot be made an offense against the United States unless it has some relation to the execution of a power of Congress or to some matter within the jurisdiction of the United States.  United States v Fox,  95 US 670,  24 L Ed 538.

Footnote 7. United States v Patmore (CA10 Kan) 475 F2d 752.

Footnote 8. United States v Hall,  98 US 343,  25 L Ed 180.

Footnote 9. United States v Barnow,  239 US 74,  60 L Ed 155,  36 S Ct 19.

Footnote 10. United States v Lanza,  260 US 377,  67 L Ed 314,  43 S Ct 141.

Footnote 11. People v Broady,  5 NY2d 500, 186 NYS2d 230, 158 NE2d 817,  74 ALR2d 841, remittitur amd  6 NY2d 814, 188 NYS2d 200, 159 NE2d 689, cert den and app dismd  361 US 8,  4 L Ed 2d 49,  80 S Ct 57; Re Squires, 114 Vt 285, 44 A2d 133.

As to double jeopardy claim where state and federal governments punish same act, see  §§ 282,  283, infra.

Footnote 12. California v Zook,  336 US 725,  93 L Ed 1005,  69 S Ct 841, reh den  337 US 921,  93 L Ed 1729,  69 S Ct 1152.

Footnote 13. Executive Order No. 11396, Feb. 7, 1968, 33 Fed Reg. 2689; See note at 18 USCS §  1.

2.  Form and Content of Statutes [14-18]

Courts have recognized that the legislature creates a criminal offense whenever it prescribes that a certain act be punishable either by fine or imprisonment or forbids it generally, and, by implication, empowers the imposition of either a fine or imprisonment. 14   To this end, a state legislature may describe the act or acts which constitute the offense or may define it as any act which produces, or is reasonably calculated to produce, a certain result. 15

Where a statute provides that an act must be punishable in a certain way, this impliedly forbids such act, and it is not necessary that the act should be expressly prohibited. 16   Nor is it required that a statute declare, in express terms, that its violation constitutes a misdemeanor or a felony. 17  On the other hand, a criminal statute is of no force or effect if no penalty whatever is provided for its violation, 18    though a penalty provided by a separate statute may be sufficient for this purpose. 19

A criminal defendant was charged under the wrong statute where he was charged under the general provision RC § 2913.31(A)(3) and where he should have been charged under the specific provisions of RC § 3599.14; RC § 1.51 applies because the two offenses are allied offenses of similar import and additionally do not constitute crimes committed separately or with a separate animus for each crime; where it is clear that a special provision prevails over a general provision or the Criminal Code is silent or ambiguous as to which provision prevails, under RC § 1.51, a prosecutor may charge only on the special provision. There is no manifest legislative intent that the general provision, RC § 2913.31, is to prevail over the special election provision RC § 3599.14, as the Criminal Code is silent in this regard. State v King (1991 Lorain Co) 81 Ohio App 3d 210, 610 NE2d 1028.

Footnote 14. People v Graf, 93 Ill App 2d 43, 235 NE2d 886; State v Ostwalt, 118 NC 1208, 24 SE 660 (ovrld on other grounds State v Liles 134 NC 735, 47 SE 750).

Footnote 15. Miles v State, 30 Okla Crim 302, 236 P 57.

Footnote 16. State v Allen, 129 La 733, 56 So 655; State v Parker, 109 NH 491, 256 A2d 159; State v Central Lumber Co. 24 SD 136, 123 NW 504, affd  226 US 157,  57 L Ed 164,  33 S Ct 66.

Footnote 17. Bopp v Clark, 165 Iowa 697, 147 NW 172.

Footnote 18. Mossew v United States (CA2 NY) 266 F 18,  11 ALR 1261; State v Hanna (Iowa), 179 NW2d 503; State v Fair Lawn Service Center, Inc., 20 NJ 468, 120 A2d 233.

As to necessity for provision as to punishment in a criminal statute generally, see  § 5, supra.

Footnote 19. State v York, 131 Iowa 635, 109 NW 122; State v Knecht, 21 Ohio Misc 91, 50 Ohio Ops 2d 153, 253 NE2d 324.

If the legislative body enacts a law that may be criminal in nature and directs the statutory compilation thereof, it must order that the penalty be included in the chapter of the statutes which contains the proscribed conduct, or, if in another chapter, appropriate references must be made, in order to give proper notice that the proscribed act is a criminal offense. Commonwealth v Jones (Ky) 514 SW2d 690 (indictment properly dismissed under act that plainly imposed penalty, but ordered arrangement of statutes which destroyed clarity).

The requirement that crimes be described with appropriate definiteness, 20  which has been referred to as a fundamental common-law concept, 21  is generally held to be an essential element of constitutional due process of law. 22     

Indefiniteness in federal criminal statutes is regarded as constitutionally objectionable, on the grounds that it deprives the defendant of the right to be informed of the nature and cause of the accusation, and that it in effect delegates to judges and juries legislative power to determine what acts shall be criminal. 23  And a similar defect in a state criminal statute has been found incompatible with a state constitutional provision requiring that all general laws be of uniform operation. 24

Practice Aids: Freemen and McSlarrow, RICO and the due process "void for vagueness" test. 45 Bus L 1003.

Validity, construction, and application of federal "crack-house statute" criminalizing maintaining place for purpose of making, distributing, or using controlled drugs (21 USCS §  856)  116 ALR Fed 345.

A criminal statute is not ambiguous for purposes of application of the rule of lenity merely because there is a division of judicial authority over its proper construction; the rule of lenity applies only if, after seizing everything from which aid can be derived, the United States Supreme Court can make no more than a guess as to what Congress intended. Reno v Koray (1995, US)  132 L Ed 2d 46,  115 S Ct 2021, 95 CDOS 4157, 95 Daily Journal DAR 7126, 9 FLW Fed S 85.

Aggravating circumstance that capital offense was "especially heinous, atrocious or cruel" was unconstitutionally vague. WilCher v Hargett (1992, CA5 Miss) 978 F2d 872, reh, en banc, den (CA5 Miss) 981 F2d 1254 and petition for certiorari filed (Mar 22, 1993).

"Lottery statute," 18 USCS §  1302, was not unconstitutionally vague as applied to defendant who did in fact conduct "lottery," which has been defined as "scheme for distribution of prizes or things of value by lot or chance among persons who have paid or agreed to pay valuable consideration for chance to obtain prize," since statute was designed specifically to prohibit his conduct. United States v Tansley (1993, CA5 Tex) 986 F2d 880.

18 USCS §  1956(a)(2)(B) was not unconstitutionally vague as applied to drug trafficker, since 18 USCS §  1956(c)(1) defines proceeds of some form of unlawful activity as proceeds from commission of acts constituting any state or federal felony, which obviously includes drug trafficking; incorporation of state or federal laws into money laundering statute is not impermissibly vague; requirement of knowledge that proceeds stemmed from felonious activity assures fairness' and notice. United States v Awan (1992, CAll Fla) 966 F2d 1415.

A vague statute is one which is constitutionally infirm because its language is so unclear or ambiguous that persons of reasonable intelligence must guess at what conduct is proscribed. A statute is overbroad if it is so allencompassing in its reach that it ensnares both protected and nonprotected Conduct. State v Ferrari (1981, Fla) 398 So 2d 804.

Individuals are entitled to fair notice of the criminal consequences of felonious activities, but they are not necessarily entitled to letter-perfect notice. People v Hickman (1994) 163 Ill 2d 250, 206 Ill Dec 94, 644 NE2d 1147.

See State v Sullivan (1980, Iowa) 298 NW2d 267, § 17.

The term "adequate support" in RC § 2919.21 was not so indefinite and uncertain as to render statute unconstitutionally vague, since person of ordinary common intelligence should be able to comprehend the meaning of "adequate support" to determine compliance with the statute, by weighing the needs of a dependent against the ability to pay of the person charged with support of the dependent. State v Messer (1992) 62 Ohio Misc 2d 232, 597 NE2d 568.

Footnote 20. United States v Cardiff,  344 US 174,  97 L Ed 200,  73 S Ct 189; United States ex rel. Clark v Anderson (CA3 Del) 502 F2d 1080; State v Smith, 103 Ariz 490, 446 P2d 4; Neal v State, 259 Ark 27, 531 SW2d 17, vacated, in part on other grounds  429 US 808,  50 L Ed 2d 69,  97 S Ct 44,  97 S Ct 45, reh den  429 US 966,  50 L Ed 2d 335,  97 S Ct 397 and conformed to 261 Ark 195, 548 SW2d 106, cert den  434 US 878,  54 L Ed 2d 158,  98 S Ct 231, reh den  434 US 977,  54 L Ed 2d 471,  98 S Ct 540 and on remand 261 Ark 336, 548 SW2d 135, cert den  434 US 878,  54 L Ed 2d 158,  98 S Ct 231, reh den  434 US 961,  54 L Ed 2d 322,  98 S Ct 495 and later app (Ark) 605 SW2d 421; State v Barquet (Fla) 262 So 2d 431; State v Martin, 7 NC App 532, 173 SE2d 47.

Annotation:  16 L Ed 2d 1231.

Footnote 21. Pierce v United States,  314 US 306,  86 L Ed 226,  62 S Ct 237.

Footnote 22. Connally v General Constr. Co.,  269 US 385,  70 L Ed 322,  46 S Ct 126; Chester v Elam, 408 Pa 350, 184 A2d 257.

On the general question of the indefiniteness of statutes as affecting their constitutionality, see 16A Am Jur 2d,  Constitutional Law § 818.

Footnote 23. United States v L. Cohen Grocery Co.,  255 US 81,  65 L Ed 516,  41 S Ct 298.

Footnote 24. Re Newbern, 53 Cal 2d 786, 3 Cal Rptr 364, 350 P2d 116, holding that a provision requiring uniform operation will not tolerate a criminal law so lacking in definition that each defendant is left to the vagaries of individual judges and juries.

An underlying principle of criminal law is that all are entitled to be informed as to what the state commands or forbids and no one should be required, at peril of life, liberty, or property, to speculate as to the meaning of penal statutes. 25      Fundamental fairness requires that no person be held criminally responsible for conduct which he could not reasonably understand to be proscribed. 26                

Crimes are not to be created by inference nor may they be constructed nunc pro tunc. 27  Words that are vague and fluid, it is said, may be a trap for the innocent 28  and no obedience may be exacted to a rule or standard that is so vague and indefinite as to be in effect no rule or standard at all. 29       

Practice Aids: Validity, construction, and application of federal "crack-house statute" criminalizing maintaining place for purpose of making, distributing, or using controlled drugs (21 USCS §  856)  116 ALR Fed 345.

A penal statute must be written in langugage sufficiently definite, when measured by common understanding and practice, to apprise ordinary persons of common intelligence of that conduct which constitutes a violation of the statute. Gluesenkamp v State (1980, Fla) 391 So 2d 192.

Where defendant was found alone in accomplice's apartment asleep on couch under which some of stolen property was hidden, and defendant later confided to accomplice that remainder of property was in basement, accomplice testified that all stolen property had been on porch of apartment building prior to accomplice's arrest, instruction on exclusive possession in defendant's trial was proper. State v White (1990, Me) 570 A2d 823.

"Legitimate purpose," as used in stalking statutes, ORS §§ 163.730 et seq., was unconstitutionally vague in that it did not tell person of ordinary intelligence what was encompassed within term, and therefore gave no warning as to what conduct had to be avoided. State v Norris-Romine (1995) 134 Or App 204, 894 P2d 1221, review den 321 Or 512, 900 P2d 509.

Footnote 25. Lanzetta v New Jersey,  306 US 451,  83 L Ed 888,  59 S Ct 618.

Footnote 26. United States v Laub,  385 US 475,  17 L Ed 2d 526,  87 S Ct 574; Scull v Virginia,  359 US 344,  3 L Ed 2d 865,  79 S Ct 838; United States v Harriss,  347 US 612,  98 L Ed 989,  74 S Ct 808; State v Vallery, 212 La 1095, 34 So 2d 329.

A state may not issue commands to its citizens, under criminal sanctions, in language so vague and undefined as to afford no fair warning of what conduct might transgress them.  Raley v Ohio,  360 US 423,  3 L Ed 2d 1344,  79 S Ct 1257.

A conviction under a criminal enactment which does not give adequate notice that the conduct charged is prohibited is violative of due process. Wright v Georgia,  373 US 284,  10 L Ed 2d 349,  83 S Ct 1240, conformed to 219 Ga 125, 131 SE2d 851 (state convictions of blacks for violating breach of peace statute by refusing to comply with police officer's order to leave public park in which they were peacefully playing basketball).

Footnote 27. United States v Laub,  385 US 475,  17 L Ed 2d 526,  87 S Ct 574.

Footnote 28. United States v Cardiff,  344 US 174,  97 L Ed 200,  73 S Ct 189.

Footnote 29. Champlin Refining Co. v Corporation Com. of Oklahoma,  286 US 210,  76 L Ed 1062,  52 S Ct 559.

A criminal statute which proscribes no comprehensible course of conduct may not constitutionally be applied to any set of facts; an example of such a vague statute is one which prohibits any person from wilfully making any unjust or unreasonable rate or charge in dealing in or with any necessaries, since it forbids no specific or definite act and leaves open the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against.  United States v Powell,  423 US 87,  46 L Ed 2d 228,  96 S Ct 316, on remand (CA9 Wash) 537 F2d 371.

A criminal statute may be challenged as indefinite where the uncertainty has to do with what persons are within the scope of the act, 30   what acts are prohibited, 31  or what acts are excepted from the prohibition. 32   Similarly, uncertainty as regards the penalty may make a criminal statute unenforceable. 33    

If, on its face, a statute is repugnant to the due process clause on account of vagueness, specifications of the details of the offense intended to be charged will not serve to validate it, since it is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. 34    

The standard of certainty required is higher in statutes punishing for offenses than in the case of those depending primarily upon civil sanctions for enforcement. 35    And it is especially high where the offense lies in an area affecting freedom of expression. 36   If the act involved is merely malum prohibitum, this may also underline the definiteness requirement. 37   On the other hand, the standard may be somewhat less strict if the offense is one difficult to define, 38     especially if it would be difficult, if not impossible, to lay down a rule of conduct in more exact terms which would at the same time cover varying conditions. 39   A statute is also more readily upheld against a charge of vagueness if it applies only to a knowing violation, 40  or if the offense is one which requires a specific intent. 41        

Crimes are not to be created by inference and may not be constructed nunc pro tunc; 42   a penal statute must set up ascertainable standards. 43   A statute which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law. 44   However, no more than a reasonable degree of certainty can be demanded. 45    The constitutional requirement in this respect does not require impossible standards 46  and it is not necessary that the statute furnish detailed plans and specifications of the acts or conduct prohibited. 47   Moreover, the fact that a higher standard of precision or certainty may be possible has been held insufficient of itself to invalidate a statute for indefiniteness. 48  All that is required is that the language, when measured by common understanding and practices, give adequate warning of the conduct proscribed and mark boundaries sufficiently distinct for judges and juries fairly to administer the law. 49    In determining whether adequate warning is given, the court should view the statute from the standpoint of the reasonable man who might be subject to its terms. 50

The requirement as to definiteness of criminal statutes is violated where a provision fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. 51 Such a requirement is also violated by a statute so vague as to make criminal an innocent act, 52   or to prohibit expressions protected by First Amendment guaranties of freedom of speech and press. 53   And criminal sanctions are judicially denied to statutes containing in explicably contradictory commands. 54       

A criminal statute is not rendered unconstitutional by the fact that its application may be uncertain in exceptional cases, 55   nor by the fact that the definition of the crime contains an element of degree as to which estimates might differ, 56  or as to which a jury's estimate might differ from that of the defendant, 57  so long as the general area of conduct against which the statute is directed is made plain. 58   It is not violative of due process of law for a legislature in framing its criminal law to cast upon the public the duty of care and even of caution, provided there is sufficient warning to one bent on obedience that he comes near the proscribed area. 59   Nor is it unfair to require that one who goes perilously close to an area of proscribed conduct take the risk that he may cross the line. 60     

The requisite certainty may be supplie in some circumstances by materials outside the statutory definition of the offense.  Thus, in the case of a statute that deals with offenses difficult to define, the entire text of the statute or the subject dealt with may furnish an adequate standard of definiteness. 61   Words or phrases which might be indefinite in one of their possible senses will not invalidate the statute where they have a well settled common-law 62   or technical 63  meaning that can be employed. Where a statutory offense corresponds to a common-law offense, it is sufficiently certain without any definition, since the common-law definition may be employed even in a jurisdiction which has no common-law offenses as such. 64   And the definiteness requirement is sometimes stated in such a way as to suggest that it is applicable only where the statute creates an offense which was not a crime at common law. 65  

Practice Aids: Validity of law criminalizing wearing dress of opposite sex. (See also 16A Am Jur 2d (Rev), Constitutional Law  566.)  12 ALR4th 1249.

Validity, construction, and application of federal "crack-house statute" criminalizing maintaining place for purpose of making, distributing, or using controlled drugs (21 USCS §  856)  116 ALR Fed 345.

Objections to the vagueness of statutes under the due process clause of the Federal Constitution rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk; vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand, and the statute is judged on an as-applied basis. Claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment, and are not subject to a due process analysis which allows such claims to be overcome in any specific case where reasonable persons would know that their conduct is at risk. Maynard v Cartwright (1988, US)  100 L Ed 2d 372,  108 S Ct 1853.

An accused's overbreadth challenge to the statute under which he has been indicted cannot be rendered moot by amending the statute, after the conduct for which the accused has been indicted occurred, to eliminate the basis for the overbreadth challenge; a state cannot salvage a criminal conviction under a statute found to be overbroad by curing the statute's infirmity prior to review of the conviction by the highest reviewing court. Massachusetts v Oakes (1989, US )  105 L Ed 2d 493,  109 S Ct 2633.

A state statute is not overbroad, so as to violate the Federal Constitution's First Amendment–regardless of whether the statute as written is substantially overbroad–where (1) the statute, on its face, forbids a person to possess photographs that show a minor who is not the person's child or ward in a state of nudity, but (a) the term "nudity" has been construed by the state's highest court as constituting a lewd exhibition or involving a graphic focus on the genitals, (b) the context of the court's opinion indicates that the court believed that the term refers to a lewd exhibition of the genitals, and (c) the statute, as construed, would thus not penalize persons for viewing or possessing innocuous photographs of naked children; and (2) the statute, on its face, lacks a mens rea requirement, but the state's highest court has concluded–based on the state's default statute specifying that recklessness applies when another statutory provision lacks an intent specification–that the state must establish scienter in order to prove a violation of the possession statute. Osborne v Ohio (1990, US )  109 L Ed 2d 98,  110 S Ct 1691, reh den (US)  110 L Ed 2d 285,  110 S Ct 2605 and on remand 52 Ohio St 3d 705.

In a determining whether a particular aggravating Circumstance meets the requirements of the Federal Constitution's Eighth and Fourteenth Amendments for capital sentencing procedures, a federal court must first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer; if so, then the federal court must attempt to determine whether the state courts have further defined the vague terms, and, if they have done so, whether those definitions are constitutionally sufficient, that is, whether they provide some guidance to the sentencer; when the sentencer is a judge rather than a jury, the federal court must presume that the judge knew and applied any existing narrowing construction. Arave v Creech (1993, US)  123 L Ed 2d 188,  113 S Ct 1534, 93 CDOS 2320, 93 Daily Journal DAR 3980, 7 FLW Fed S 125.

Bank vice-president failed to show that 18 USCS §  215 was unconstitutionally vague as applied to him, since promising to give loan from his bank in order to secure loan from another cannot be reasonably understood to be anything other than conduct prohibited by § 215. United States v O'Campo (1992, CA1) 973 F2d 1015.

Law against structuring transactions in order to avoid bank requirement of filing currency transaction report was not unconstitutionally vague as applied to defendants liable under 18 USCS §  2 as accomplices, where bank employee acted knowingly. United States v Patrick (1992, CA6 Ky) 965 F2d 1390, reh, en banc, den (CA6) 1992 US App LEXIS 15350 and reh den (CA6) 1992 US App LEXIS 20936.

18 USCS  1956 was not void for vagueness, even as applied to individual not engaged in money-laundering or drug dealing before initiation of sting operation, since 18 USCS  1956(a)(l)(B) requires that specific intent be proved and that representations by law enforcement officers relate to specific unlawful conduct; provision is clear and applies to anyone who has requisite intent to engage in conduct as defined in statute. United States v Loehr (1992, CA6 Mich) 966 F2d 201, reh, en banc, den (CA6) 1992 US App LEXIS 16894.

Petitioner was not entitled to relief on grounds Ohio statute prohibiting unauthorized transfers of building and loan association funds was constitutionally vague; although statute does not say anything about culpable mental state, and may not indicate purpose to impose strict liability, neither does it specify that there can be no offense without proof of intent to injure or defraud. Warner v Zent (1993, CA6 Ohio) 997 F2d 116, reh, en banc, den (CA6) 1993 US App LEXIS 19695.

Due process requires that penal laws provide notice to ordinary person of what is prohibited and that they provide standards to law enforcement officials to prevent arbitrary and discriminatory enforcement. Geiger v Eagan (1980, CA8 Minn) 618 F2d 26.

Constitutionality of vague statutory standard is closely related to whether standard incorporates requirement of mens rea; requirement of particular standard of intent alleviates many vagueness problems. United States v Mussry (1984, CA9 Cal) 726 F2d 1448.

Although statute may be challenged for vagueness either "on its face" or "as applied" a "facial" vagueness analysis is mutually exclusive from an "as applied" analysis; threshold question in any vagueness challenge is whether to scrutinize statute for intolerable vagueness on its face or whether to do so only as statute is applied in particular case; vagueness doctrine does not permit court to conclude that statute is facially vague and therefore void, yet not void because sufficiently definite as applied. Schwartzmiller v Gardner (1984, CA9 Idaho) 752 F2d 1341.

Consideration of "utter disregard for human life" as aggravating factor in capital cases violates due process as being unconstitutionally vague. Beam v Paskett (1992, CA9 Idaho) 966 F2d 1563, 92 CDOS 5534, 92 Daily Journal DAR 8810.

In two first-degree murder prosecutions, the trial court properly struck special circumstance allegations that the murders were especially heinous, atrocious, and cruel, manifesting exceptional depravity as described in Pen. Code, § 190.2, subd. (a)(14). The statutory language is unconstitutionally vague and violative of the due process clauses of U.S. Const., 14th Amend. and Cal. Const., art. I, §§ 7, subd. (a), and 15. The terms "heinous," "atrocious," "cruel," and "depravity" stimulate feelings of repugnance, but they have no directive content, and the adverb "especially" adds nothing except greater uncertainty. The statute's own definition of the terms used as meaning "a conscienceless or pitiless crime which is unnecessarily torturous to the victim" is not helpful. Vague statutory language is not rendered more precise by defining it in terms of synonyms of equal or greater uncertainty. (Disapproving Allen v. Superior Court (1980) 113 Cal.App.3d 42 [169 Cal. Rptr. 608], to the extent it conflicts with the decision.) People v Superior Court (Engert) (1982) 31 Cal 3d 797, 183 Cad Rptr 800, 647 P2d 76.

Pen. Code, § 288.5, prohibiting the continuous sexual abuse of a child, is not unconstitutional for failing to require notice to an accused of specific acts of molestation, or for permitting a conviction without a unanimous finding on such acts. In adopting § 288.5, the Legislature exercised its prerogative to proscribe a course of conduct, rather than specific acts. Statutory safeguards assure a balancing of the state's interest in prosecuting the resident child molester with the protection of the defendant's rights, including requirements that the defendant be charged with only one count per victim, that the jury agree on at least three acts of sexual abuse, and that the defendant have had at least three months' continuous access to the victim. The occurrence of three acts of molestation is an essential element of the crime, but unanimity on which acts occurred is not. That the jurors may select different acts to meet the numerical threshold does not render the statute unconstitutional; the jury must agree that there was a course of conduct, and may not return a conviction based on a single act or a series of acts on which it does not agree. People v Higgins (1992, 3rd Dist) 9 Cal App 4th 294, 11 Cal Rptr 2d 694, 92 CDOS 7614, 92 Daily Journal DAR 12284.

A state supreme court rejected a claim that the criminal drug conspiracy statute is unconstitutionally vague by virtue of the fact that it fails to provide for a minimum sentence, since the provision is plain and unambiguous in notifying a person of common intelligence that the minimum penalty is zero, since the provision can be fairly administered because it provides sufficiently definite standards for the trial courts, and since the language does not create multiple, conflicting penalties. People v Hickman (1994) 163 Ill 2d 250, 206 Ill Dec 94, 644 NE2d 1147.

Although specificity which due process requires of penal statute need not be apparent from face of statute but may be ascertained by reference to prior judicial decisions, similar statutes, dictionary or common usage, statute which prohibits sex act with person who lacks mental capacity to know right and wrong of conduct in sexual matters is unconstituionally vague because no matter how carefully circumscribed, use of terms "right and wrong" will result in convictions based not on jury's view of facts, but on its view of morality of certain sexual conduct. State v Sullivan (1980, Iowa) 298 NW2d 267.

The trial court properly held that FS § 918.14(3)(a)(1), prohibiting any person's causing a witness to be placed in fear by force or threat of force, was not unconstitutionally vague since the statute conveyed a definite warning as to the conduct proscribed, measured by common understanding and practice. Lee v State (1981, Fla) 397 So 2d 684.

Constitutional requirement of definiteness is satisfied when language of criminal enactment has generally accepted meaning such that person of ordinary intelligence would be given fair notice of what conduct is forbidden, or when crucial words or phrases in criminal statute have fixed and definite meaning for person of ordinary intelligence. State v Dousay (1979, La) 378 So 2d 414.

State criminal statute prohibiting manufacture, distribution, or possession of narcotic substance is unconstitutionally void for vagueness in its penalty provisions where one sentence of statute provides for mandatory minimum one year term of imprisonment while another sentence provides for imprisonment for not less than one year and not more 10 years, or by fine, or both. Commonwealth v Gagnon (1982) 387 Mass 567, 441 NE2d 753, on reh 387 Mass 768, 443 NE2d 407, cert den and app dismd  461 US 921,  77 L Ed 2d 292,  103 S Ct 2077 and cert den (US)  78 L Ed 2d 84,  104 S Ct 70.

Drug paraphernelia law defining drug paraphernelia as materials which are used "or intended for use" in drug production, distribution, and consumption, and prohibiting person from possessing drug paraphernelia with intent to sell where he knows, or reasonably should know that object will be used in illegal drug activity, and, in connection with definition of drug paraphernelia providing that "court or other authority" shall consider specific factors in determining whether object is drug paraphernelia, was not void for vagueness under due process clause. Commonwealth v Jasmin (1986) 396 Mass 653, 487 NE2d 1383.

Criminal statute satisfies due process if it gives sufficient warning that persons may conduct themselves so as to avoid that which is forbidden. State v Mattan (1981, Neb) 300 NW2d 810.

Mere fact that law or regulation does not specifically point out or prohibit various different means by which theft is prohibited does not make such law or regulation impermissibly vague. State v Moore (1979, ND) 286 NW2d 274.

Defendant was properly convicted on 5 counts of knowingly attempting to cause physical harm to another by means of a deadly weapon, a firearm, in violation of RC § 2903.11(A)(2), where defendant participated in drive-by shooting, yelling threats and discharging many shots at random at several different buildings and groups of persons, because the indictment followed the form used in the statute and therefore was not unconstitutionally vague, the use of the word "knowingly" in the statute applied to the activity of the defendant when he pointed the gun and fired, whether or not he knew the identity of the victim is not a vital element, and the act of pointing a deadly weapon at another coupled with a threat is sufficient to convict under RC § 2903.11(A)(2). State v Phillips (1991, Montgomery Co) 77 Ohio App 3d 663, 603 NE2d 282.

An abortion protestor had standing to challenge the constitutionality of PC § 42.03, under which he was convicted of obstructing an entrance to a place of business to which the public had access, on vagueness grounds only as it applied to his conduct, as that statute purports to regulate conduct and not speech; since the conduct with which the protestor was charged and of which he was convicted, which was "standing in a position in front of the walkway refusing to move," fell squarely within the "renders impassable" definition of "obstruct" as set forth in PC § 42.03(b), the protestor had no standing to complain of the definition of "unreasonably inconvenient." Smith v State (1989, Tex App Dallas) 772 SW2d 946, petition for discretionary review ref.

Footnote 30. United States v Cardiff,  344 US 174,  97 L Ed 200,  73 S Ct 189; Winters v New York,  333 US 507,  92 L Ed 840,  68 S Ct 665, conformed to 298 NY 510, 80 NE2d 659; State v Hill, 189 Kan 403, 369 P2d 365,  91 ALR2d 750.

Footnote 31. State v Furio, 267 NC 353, 148 SE2d 275.

The statute proscribing the solicitation, offer, or receipt of a bribe in connection with the furnishing of services to a nursing home patient was not unconstitutionally vague where it delineated the proscribed conduct with sufficient specificity and where persons of ordinary intelligence could reasonably determine what conduct was unlawful thereunder.  Sandstrom v Leader (Fla) 370 So 2d 3.

The statute prohibiting any officer or employee of a state agency or of a county from using, or attempting to use, his official position to secure special privileges or exemptions for himself or others, was unconstitutionally vague in that the terms "special privileges or exemptions" afforded no guidelines by which a public official could measure his specific conduct and where its enforcement was left to the whims of the prosecutor. State v Rou (Fla) 366 So 2d 385.

Footnote 32. State v Hill, 189 Kan 403, 369 P2d 365,  91 ALR3d 750 (law prohibiting Sunday sales was not invalidated by fact that it excepted "drugs or medicines" and "provisions," but it was unconstitutionally vague where it also excepted "other articles of immediate necessity," the latter phrase having no objective meaning).

Footnote 33. United States v Evans,  333 US 483,  92 L Ed 823,  68 S Ct 634.

Footnote 34. Lanzetta v New Jersey,  306 US 451,  83 L Ed 888,  59 S Ct 618.

Footnote 35. Winters v New York,  333 US 507,  92 L Ed 840,  68 S Ct 665, conformed to 298 NY 510, 80 NE2d 659.

Footnote 36. Reasonable certainty is all the more essential when vagueness might induce individuals to forgo their rights of speech, press, and association for fear of violating an unclear law.  Scull v Virginia,  359 US 344,  3 L Ed 2d 865,  79 S Ct 838.

Footnote 37. A citizen is entitled to an unequivocal warning before conduct on his part which is not malum in se can be made the occasion of a deprivation of his liberty or property.  People v Shifrin, 301 NY 445, 94 NE2d 724.

Footnote 38. The Supreme Court of the United States will go far to uphold state or federal statutes that deal with offenses difficult to define when they are not intertwined with limitations on free expression; only a definite conviction that the Fourteenth Amendment has been violated justifies reversal of the court primarily charged with responsibility to protect persons from conviction under a vague state statute.  Winters v New York,  333 US 507,  92 L Ed 840,  68 S Ct 665, conformed to 298 NY 510, 80 NE2d 659.

Footnote 39. People v Sarnoff, 302 Mich 266, 4 NW2d 544.

Footnote 40. Boyce Motor Lines, Inc. v United States,  342 US 337,  96 L Ed 367,  72 S Ct 329.

Footnote 41. Hygrade Provision Co. v Sherman,  266 US 497,  69 L Ed 402,  45 S Ct 141.

A state disorderly conduct statute is not unconstitutionally vague in providing that a person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he congregates with other persons in a public place and refuses to comply with a lawful police order to disperse.  Colten v Kentucky,  407 US 104,  32 L Ed 2d 584,  92 S Ct 1953.

Footnote 42.  § 16, supra.

Footnote 43. Winters v New York,  333 US 507,  92 L Ed 840,  68 S Ct 665, conformed to 298 NY 510, 80 NE2d 659; People v Smith,  44 NY2d 613, 407 NYS2d 462, 378 NE2d 1032; Calderon v Buffalo (4th Dept)  61 App Div 2d 323, 402 NYS2d 685.

A state criminal statute prohibiting, among other things, picketing in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any courthouses or other public buildings is not so broad, vague, indefinite, and lacking in definitely ascertainable standards as to be unconstitutional on its face; it is not so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application; it clearly and precisely delineates its reach in words of common understanding; it is a precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be proscribed; and it is not void for overbreadth, but is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society.  Cameron v Johnson,  390 US 611,  20 L Ed 2d 182,  88 S Ct 1335, reh den  391 US 971,  20 L Ed 2d 887,  88 S Ct 2029.

Footnote 44. Champlin Refining Co. v Corporation Com. of Oklahoma,  286 US 210,  76 L Ed 1062,  52 S Ct 559; Connally v General Constr. Co.,  269 US 385,  70 L Ed 322,  46 S Ct 126; State v Hill, 189 Kan 403, 369 P2d 365,  91 ALR2d 750; Hisel v State, 97 Okla Crim 356, 264 P2d 375.

Compare Smith v Peterson (4th Dist) 131 Cal App 2d 241, 280 P2d 522,  49 ALR2d 1194, stating that the fact that the meaning is difficult to ascertain, or susceptible of different interpretations, does not render the statute void.

Footnote 45. Boyce Motor Lines, Inc. v United States,  342 US 337,  96 L Ed 367,  72 S Ct 329; State v Hales, 256 NC 27, 122 SE2d 768,  90 ALR2d 804.

Footnote 46. United States v Petrillo,  332 US 1,  91 L Ed 1877,  67 S Ct 1538.

Footnote 47. State v Mayhew (Fla) 288 So 2d 243 (ovrld on other grounds Brown v State (Fla) 358 So 2d 16).

Footnote 48. Rose v Locke,  423 US 48,  46 L Ed 2d 185,  96 S Ct 243; Smith v Peterson (4th Dist) 131 Cal App 2d 241, 280 P2d 522,  49 ALR2d 1194 (statute requiring that motor vehicle be equipped with muffler adequate to prevent "any excessive or unusual noise" held valid, though standard expressed in decibels could have been used); State v Reese (Fla) 222 So 2d 732.

Footnote 49. Roth v United States,  354 US 476,  1 L Ed 2d 1498,  77 S Ct 1304, 14 Ohio Ops 2d 331, reh den  355 US 852,  2 L Ed 2d 60,  78 S Ct 8; United States v Petrillo,  332 US 1,  91 L Ed 1877,  67 S Ct 1538; State v Hart, 200 Kan 153, 434 P2d 999.

The fair warning requirement embodied in the due process clause of the Fourteenth Amendment prohibits the states from holding an individual criminally responsible for conduct which he could not reasonably understand to be proscribed, but such prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision; the due process clause requires only that the law give sufficient warning that people may conform their conduct so as to avoid that which is forbidden.  Rose v Locke,  423 US 48,  46 L Ed 2d 185,  96 S Ct 243.

The test of vagueness of a statute is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and purpose.  The statute must give reasonable notice that a person's conduct is restricted by the statute.  Reynolds v State (Fla) 383 So 2d 228.

Lack of precision is not itself offensive to the due process requirement, and all that is required is that the language of the statute convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.  State v Reese (Fla) 222 So 2d 732.

Footnote 50. Pacific Coast Dairy v Police Court of San Francisco, 214 Cal 668, 8 P2d 140.

Under the void-for-vagueness doctrine a statute is unconstitutionally vague if it fails to give a person of ordinary intelligence fair notice that his conduct is criminal.  State v Booth (La) 347 So 2d 241.

Footnote 51. Papachristou v Jacksonville,  405 US 156,  31 L Ed 2d 110,  92 S Ct 839; United States v Harriss,  347 US 612,  98 L Ed 989,  74 S Ct 808.

Penal laws must be clear enough so that all persons subject to their penalties may know what acts it is their duty to avoid. State v Caez, 81 NJ Super 315, 195 A2d 496 (ordinance prohibiting "loitering," without defining that term, held so vague and indefinite as to be invalid).

Footnote 52. Winters v New York,  333 US 507,  92 L Ed 840,  68 S Ct 665, conformed to 298 NY 510, 80 NE2d 659; Kahalley v State, 254 Ala 482, 48 So 2d 794.

A municipal vagrancy ordinance is void for vagueness, both in the sense that it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the ordinance, and because it encourages arbitrary and erratic arrests and convictions, in punishing rogues and vagabonds; dissolute persons who go about begging; common gamblers; persons who use juggling or unlawful games or plays; common drunkards; common night walkers, thieves, pilferers, or pickpockets; traders in stolen property; lewd, wanton, and lascivious persons; keepers of gambling places; common railers and brawlers; persons wandering or strolling around from place to place without any lawful purpose or object; habitual loafers; disorderly persons; persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served; and persons able to work but habitually living on their wives or minor children.  Papachristou v Jacksonville,  405 US 156,  31 L Ed 2d 110,  92 S Ct 839.

See Smith v Florida,  405 US 172,  31 L Ed 2d 122,  92 S Ct 848 (on remand (Fla) 261 So 2d 150), vacating and remanding a state court decision sustaining the validity of a state vagrancy statute, for reconsideration in light of Papachristou v Jacksonville,  405 US 156,  31 L Ed 2d 110,  92 S Ct 839.

If a statute uses words of no determinative meaning and the language is so general and indefinite as to embrace not only acts commonly recognized as reprehensible, but also others which it is unreasonable to presume were intended to be made criminal, it will be declared void for uncertainty. State v Diamond, 27 NM 477, 202 P 988.

Footnote 53. Winters v New York,  333 US 507,  92 L Ed 840,  68 S Ct 665, conformed to 298 NY 510, 80 NE2d 659.

Footnote 54. Raley v Ohio,  360 US 423,  3 L Ed 2d 1344,  79 S Ct 1259; United States v Cardiff,  344 US 174,  97 L Ed 200,  73 S Ct 189 (unconstitutional to convict for refusing to permit factory inspection, under statute which, on face, apparently authorizes such refusal).

Footnote 55. Hygrade Provision Co. v Sherman,  266 US 497,  69 L Ed 402,  45 S Ct 141.

Footnote 56. Hygrade Provision Co. v Sherman,  266 US 497,  69 L Ed 402,  45 S Ct 141.

For examples of statutes upheld as not too vague despite an element of degree, see Boyce Motor Lines, Inc. v United States,  342 US 337,  96 L Ed 367,  72 S Ct 329 (vehicles carrying explosives required to avoid congested thoroughfares, etc., "so far as practicable"); United States v Petrillo,  332 US 1,  91 L Ed 1877,  67 S Ct 1538 (coercing radio broadcaster to employ persons in excess of number "needed" to perform actual services); People v Sarnoff, 302 Mich 266, 4 NW2d 544 (act requiring all dwellings and parts thereof "to be kept in good repair by the owner").  And see Smith v Peterson (4th Dist) 131 Cal App 2d 241, 280 P2d 522,  49 ALR2d 1194, for a collection of cases upholding definitions of offenses despite the use of terms like "unreasonable," "unusual," or "excessive."

A statute imposing a criminal penalty for failure to register for and pay a federal excise tax on the business of accepting wagers, including wagers placed in a lottery conducted for profit, and providing penalties for failure to register and pay the tax, has been held not to be unconstitutionally vague in using, in defining the subject of the tax, the phrase "engaged in the business" of wagering, or in using the word "usually" in describing those types of games which are not included in the term "lottery." United States v Kahriger,  345 US 22,  97 L Ed 754,  73 S Ct 510, reh den  345 US 931,  97 L Ed 1360,  73 S Ct 778 and (ovrld on other grounds Marchetti v United States  390 US 39,  19 L Ed 2d 889,  88 S Ct 697, 43 Ohio Ops 2d 215).

The mere fact that a penal statute is so framed as to require a jury upon occasion to determine a question of reasonableness is not sufficient to make it too vague to afford a practical guide to permissible conduct.  United States v Ragen,  314 US 513,  86 L Ed 383,  62 S Ct 374, reh den  315 US 826,  86 L Ed 1222,  62 S Ct 620, 621.

Footnote 57. Pacific Coast Dairy v Police Court of San Francisco, 214 Cal 668, 8 P2d 140 ("diligent effort").

Footnote 58. Roth v United States,  354 US 476,  1 L Ed 2d 1498,  77 S Ct 1304, 14 Ohio Ops 2d 331, reh den  355 US 852,  2 L Ed 2d 60,  78 S Ct 8; United States v Harriss,  347 US 612,  98 L Ed 989,  74 S Ct 808; United States v Petrillo,  332 US 1,  91 L Ed 1877,  67 S Ct 1538; State v Wiener, 245 La 889, 161 So 2d 755.

Footnote 59. State v Evjue,  253 Wis 146, 33 NW2d 305,  13 ALR2d 1201 (statute making it offense to publish identity of female who may have been raped or subjected to any similar criminal assault).

Footnote 60. Boyce Motor Lines, Inc. v United States,  342 US 337,  96 L Ed 367,  72 S Ct 329; State v Dorsett, 3 NC App 331, 164 SE2d 607.

Footnote 61. Winters v New York,  333 US 507,  92 L Ed 840,  68 S Ct 665, conformed to 298 NY 510, 80 NE2d 659.

Footnote 62. Pacific Coast Dairy v Police Court of San Francisco, 214 Cal 668, 8 P2d 140.

In determining a constitutional claim of statutory vagueness attacking the meaning of words such as "any act injurious to the public health, to public morals, or for the perversion or obstruction of justice or the due administration of laws" the court will look to the whole body of the common and statutory law of the state and then judge the phraseology in that context.  People v Rehman (2d Dist) 253 Cal App 2d 119, 61 Cal Rptr 65, cert den  390 US 947,  19 L Ed 2d 1136,  88 S Ct 1033.

Footnote 63. Pacific Coast Dairy v Police Court of San Francisco, 214 Cal 668, 8 P2d 140.

The offense of being a "common thief" is not unconstitutionally vague, since "common," in connection with offenses of this kind (for example, "common scold," "common prostitute," "common drunkard," etc.) has a well-settled technical meaning, namely, "habitually and by practice."  State v Cherry, 224 Md 144, 167 A2d 328.

But see Re Newbern, 53 Cal 2d 786, 3 Cal Rptr 364, 350 P2d 116, holding statute punishing as vagrant anyone who is a "common drunk" unconstitutionally vague and uncertain.

Footnote 64. Stewart v State, 4 Okla Crim 564, 109 P 243; State v Ayers, 49 Or 61, 88 P 653.

Footnote 65. Commonwealth v Zasloff, 338 Pa 457, 13 A2d 67,  128 ALR 1120.

If the general class of offenses at which it is aimed can be made constitutionally definite by reasonable construction, the court's duty is to give the statute that construction. 66   Thus, if any reasonable and practical construction can be given the language thereof, a criminal statute may not be held void for uncertainty. 67      

Where an offense has been vaguely defined, courts may save the constitutionality of the statute or ordinance by giving it a narrower construction than its literal language might suggest. 68   Nevertheless, it has been held that when called upon to determine whether a criminal statute meets constitutional requirements as to certainty, the court should give the language used its fair meaning in accord with the evident intention of the legislature. 69    

In a number of cases, depending on the particular language and usage involved, courts have rejected statutory provisions or parts thereof, on the basis of vagueness or indefiniteness, 70  whereas in others the courts have upheld the statutes in question against challenges of indefiniteness or overbreadth. 71             

Practice Aids: Validity, construction, and application of federal "crack-house statute" criminalizing maintaining place for purpose of making, distributing, or using controlled drugs (21 USCS §  856)  116 ALR Fed 345.

Adhering to the statutory definition of a particular term in a criminal statute is fully consistent with the objective of achieving clarity in the definition of criminal statutes in order to provide fair warning, in language that the common world will understand, of what the law intends to do if a certain line is passed. Hubbard v United States (1995, US)  131 L Ed 2d 779,  115 S Ct 1754, 95 CDOS 3581, 95 Daily Journal DAR 6212, 9 FLW Fed S 3.

Footnote 66. United States v Harriss,  347 US 612,  98 L Ed 989,  74 S Ct 808; People of Dearborn Heights v Bellock, 17 Mich App 163, 169 NW2d 347.

As to requirements relating to construction of penal statutes generally, see 73 Am Jur 2d,  Statutes § 295. § 293 et seq.

Footnote 67. Smith v Peterson (4th Dist) 131 Cal App 2d 241, 280 P2d 522,  49 ALR2d 1194; State v Lisbon Sales Book Co. (App) 33 Ohio Ops 2d 332, 200 NE2d 587, affd 176 Ohio St 482, 27 Ohio Ops 2d 443, 200 NE2d 590, cert den and app dismd  379 US 673,  13 L Ed 2d 609,  85 S Ct 703.

Given limiting definitions for the words "threat" and "terrorize" as those terms are understood by persons of common intelligence, a statute proscribing terroristic threats survives any challenge for vagueness and uncertainty under both the state and federal constitutions.  State v Gunzelman, 210 Kan 481, 502 P2d 705,  58 ALR3d 522.

Footnote 68. Dominguez v Denver, 147 Colo 233, 363 P2d 661 (ovrld on other grounds Arnold v Denver 171 Colo 1, 464 P2d 515).

Footnote 69. United States v Sullivan,  332 US 689,  92 L Ed 297,  68 S Ct 331.

Footnote 70. See Palmer v Euclid,  402 US 544,  29 L Ed 2d 98,  91 S Ct 1563, 58 Ohio Ops 2d 231 (suspicious person ordinance as applied to unarmed man who, after female left his car late at night and entered apartment house, pulled onto street with his lights on and used two-way radio); Rabeck v New York,  391 US 462,  20 L Ed 2d 741,  88 S Ct 1716 (sale of magazines that would appeal to lust of persons under age of 18 years, or to their curiosity as to sex or to anatomical differences between sexes); Winters v New York,  333 US 507,  92 L Ed 840,  68 S Ct 665, conformed to 298 NY 510, 80 NE2d 659 (publications which mass stories of bloodshed and lust in such a way as to incite to crime against the person); Lanzetta v New Jersey,  306 US 451,  83 L Ed 888,  59 S Ct 618 ("known to be a member of any gang"); Champlin Refining Co. v Corporation Com. of Oklahoma,  286 US 210,  76 L Ed 1062,  52 S Ct 559 (production of petroleum in such manner as to constitute waste); Connally v General Constr. Co.,  269 US 385,  70 L Ed 322,  46 S Ct 126 (payment of wages on state contract work "less than the current rate of per diem wages in the locality"); Collins v Kentucky,  234 US 634,  58 L Ed 1510,  34 S Ct 924 (selling pooled tobacco without consent of pool agent, where legality of pool depended on whether it raised prices above "real value"); Linville v State (Fla) 359 So 2d 450 ("inhalation or possession of harmful chemical substances"); Franklin v State (Fla) 257 So 2d 21 (performance of "abominable and detestable crime against nature"); People v Sanchez, 18 Mich App 399, 171 NW2d 452 (ordinance making it a crime for one person to "follow" another).

The word "immoral" has been held too vague to serve as a standard in defining a criminal offense.  State v Vallery, 212 La 1095, 34 So 2d 329 (enticing, aiding, or permitting child under 17 to perform "any immoral act"); State v Truby, 211 La 178, 29 So 2d 758 (keeping disorderly house defined as intentional maintaining of a place to be used habitually for any illegal "or immoral" purpose).

An ordinance punishing any person who "creates or participates in a disturbance, or in a disorderly assembly, in any street, house or place" has been held unconstitutionally vague.  Chester v Elam, 408 Pa 350, 184 A2d 257. Compare People v Harvey, 307 NY 588, 123 NE2d 81, holding not unconstitutionally vague a statute punishing any person "who shall by any offensive or disorderly act or language, annoy or interfere with any person in any place."

Footnote 71. See Roth v United States,  354 US 476,  1 L Ed 2d 1498,  77 S Ct 1304, 14 Ohio Ops 2d 331, reh den  355 US 852,  2 L Ed 2d 60,  78 S Ct 8 ("obscene" and other similar terms); Chaplinsky v New Hampshire,  315 US 568,  86 L Ed 1031,  62 S Ct 766 (offensive language, construed by state courts as applying only to words having a direct tendency to provoke person addressed to acts of violence); Omaechevarria v Idaho,  246 US 343,  62 L Ed 763,  38 S Ct 323 (grazing sheep on public domain on "ranges" previously occupied by cattle, or "usually" occupied by cattle raisers); State v Evans, 154 Minn 95, 191 NW 425 (selling "investment contracts" without a license).

Defendant was not entitled to challenge the racketeering law on the grounds that the law was unconstitutionally overbroad for including misdemeanors that are unrelated to organized criminal activity where the charge against defendant, the theft of five automobiles within a 2-month period, was not minor criminal activity.  Moorehead v State (Fla) 383 So 2d 629.

In a prosecution for introducing phenmetrazine, an "excitative drug," into a county detention facility, in violation of statute, the trial court erred in ruling that the statute was unconstitutionally vague and overbroad; the statutory words "excitative drug" were sufficiently definite to apprise ordinary persons of common intelligence of what conduct was proscribed. Furthermore, defendant could not challenge the statute for overbreadth as applied to her, since she did not contend that her conduct was wholly innocent and since its proscription was rationally related to a proper governmental objective.  State v Ashcraft (Fla) 378 So 2d 284.

A statute defining aggravated burglary was constitutional despite the contention that failure to define stealth as used in that statute failed to give a defendant notice of what conduct constitutes the offense.  State v Lane, 50 Ohio App 2d 41, 4 Ohio Ops 3d 24, 361 NE2d 535.

D.  Classification of Offenses:  Identity and Merger [19-30]

1.  In General [19-21]

The character or classification of an offense is ordinarily determined by the nature of the punishment prescribed therefor. 72    And, as a general principle, it is the most serious punishment authorized by a law which is controlling, without regard to whether less serious punishments are also authorized, or have been imposed. 73

The term "degree of crime" denotes a particular grade of crime more or less culpable than another grade of the same offense. 74   In this respect, degrees of crime are said to be distinguished, not by any difference in the particular act committed, but by the circumstances surrounding the act or the condition under which it occurs. 75

Mail fraud, bribery, and tax evasion offenses were properly grouped separately since they involved different victims. United States v Seligsohn (1992, CA3 Pa) 981 F2d 1418, reh den (CA3) 1993 US App LEXIS 2364 and (among conflicting authorities noted in United States v Cronin (CA1 Mass) 1993 US App LEXIS 6429).

Footnote 72. Schick v United States,  195 US 65,  49 L Ed 99,  24 S Ct 826; Isaac v State (Fla App D2) 134 So 2d 38 (ovrld on other grounds Skov v State (Fla App D2) 292 So 2d 64, cert den (Fla) 298 So 2d 165 and (ovrld on other grounds Roberts v State (Fla App D2) 320 So 2d 832)); Brewer v Watson, 191 Misc 117, 77 NYS2d 97.

Footnote 73. People v Godding, 55 Colo 579, 136 P 1011; Wright v State (Okla Crim) 505 P2d 507.

Footnote 74. Isaac v State (Fla App D2) 134 So 2d 38 (ovrld on other grounds Skov v State (Fla App D2) 292 So 2d 64, cert den (Fla) 298 So 2d 165 and (ovrld on other grounds Roberts v State (Fla App D2) 320 So 2d 832)); People v Flores (4th Dept)  42 App Div 2d 431, 348 NYS2d 425.

Footnote 75. Isaac v State (Fla App D2) 134 So 2d 38 (ovrld on other grounds Skov v State (Fla App D2) 292 So 2d 64, cert den (Fla) 298 So 2d 165 and (ovrld on other grounds Roberts v State (Fla App D2) 320 So 2d 832)).

Where an accused commits two distinct offenses on the same occasion, he is punishable for either or both. 76   In this respect, crimes are recognized as being separate and distinguishable where the evidence necessary to establish one differs from that required to establish the other, 77  the statutory elements in the offenses being distinctive from each other. 78   And whether a series of acts constitutes separate offenses or only one offense often depends on whether the evidence discloses one general intent or separate and distinct intents. 79    For example, where a series of small payments, no one of which is large enough to constitute grand theft, is obtained from the same victim by false representations, if the evidence shows a single plan, the receipts may be cumulated to constitute a single offense of grand theft. 80    But some offenses, as defined, can be committed only by a series of acts prolonged over a considerable period. 81

Practice Aids: Solicitation to commit crime against more than one person or property, made in single conversation as single or multiple crimes.  24 ALR4th 1324.

Using firearm in commission of violent felony (18 USCS §  924(c)) is offense distinct from underlying offense and not simply penalty provision, and hence does not implicate double jeopardy prohibition. Bear Heels v United States (1993, CA8 SD) 993 F2d 1325.

Defendant's prosecution for child molestation under Pen. Code, § 288, subd. (a), involving five boys, was not precluded by Pen. Code, § 311.4 (employment of minor in pornography), as a special statute applicable to defendant's conduct. There was evidence that defendant had the boys undress, touch each other's penis, and that defendant orally copulated each boy and videotaped the events. The elements of Pen. Code, § 288, subd. (a), are a lewd touching of a child under 14 years of age with the intent of sexual arousal. None of those elements is present in Pen. Code, § 311.4, subd. (c), whose elements are using a person as a model with knowledge the person is under 17 years old in a film involving sexual conduct. These elements are not present in Pen. Code, § 288, subd. (a), nor is there anything about the statutory context that suggests a violation of Pen. Code, § 311.4, subd. (c), will necessarily or commonly result in a violation of Pen. Code, § 288, subd. (a). People v O'Connor (1992, 2nd Dist) 8 Cal App 4th 941, 10 Cal Rptr 2d 530, 92 CDOS 6963, 92 Daily Journal DAR 11101, review den (Cal) 1992 Cal LEXIS 5552.

Prosecution under a general statute is precluded by a special statute when the general statute covers the same matter as, and thus conflicts with, the special statute. In determining whether the two statutes conflict the courts must consider the context in which the statutes are placed. If it appears from the entire context that a violation of the special statute will necessarily or commonly result in a violation of the general statute, the rule of preclusion may apply even though the elements of the general statutes are not mirrored on the face of the special statute. People v O'Connor (1992, 2nd Dist) 8 Cal App 4th 941, 10 Cal Rptr 2d 530, 92 CDOS 6963, 92 Daily Journal DAR 11101, review den (Cal) 1992 LEXIS 5552.

Victim injury points could be assessed for 2 criminal episodes but not 4 counts of sexual battery, where taxi passenger was convicted of 4 counts of sexual battery on the female taxi driver, and the trial court assessed victim injury points for each count, but the criminal incidents took place in 2 separate locations, during 2 different time intervals on the same day, because the focus of the inquiry for purposes of the sentencing guidelines' victim injury rules must be to determine how many criminal episodes or transactions were involved, not the number of counts. Dolan v State (1992, Fla App D5) 598 So 2d 291, 17 FLW D 1247.

Defendant's separate convictions in separate and consecutive sentences were not inappropriate in prosecution for solicitation to commit murder where evidence was sufficient to permit finding that it constituted separate and independent incitements to commit four separate and distinct acts of murder against specified named individuals; more than one solicitation can arise even if there is but one solicitor, one solicitee, and one conversation, because successive and distinct incitements can each have separate object. Meyer v State (1981) 47 Md App 679, 425 A2d 664,  24 ALR4th 1313, cert den  454 US 865,  70 L Ed 2d 166,  102 S Ct 327.

The trial court did not abuse its discretion in denying defendant's motion to sever and in granting the State's motion to join for trial 11 September 1992 charges against defendant of maintaining a dwelling for keeping and selling marijuana and possession of marijuana with the intent to sell and deliver and a 12 October 1992 charge for selling marijuana to a minor since defendant's scheme to sell and distribute marijuana for a profit was a common thread connecting all of the crimes. State v Styles (1994) 116 NC App 479, 448 SE2d 385, stay gr (NC) 1994 NC LEXIS 656.

Accused's conviction of kidnapping, arson, rape, felonious sexual penetration, and aggravated murder did not involve conviction of 2 or more allied offenses in violation of RC § 2941.25, where a separate animus was involved for each of several acts committed separately from the kidnapping and continuing after the rape. State v Hill (1992) 64 Ohio St 3d 313, 595 NE2d 884, reh den 65 Ohio St 3d 1421, 598 NE2d 1172 and cert den (US)  123 L Ed 2d 272,  113 S Ct 1651.

Footnote 76. United States v Cedar (CA9 Cal) 437 F2d 1033.

Where shown to have murdered a person while perpetrating a robbery, defendants could be convicted both of armed robbery and of murder in the first degree.  State v Briggs (Tenn) 533 SW2d 290, later app (Tenn) 573 SW2d 157.

Footnote 77. La Page v United States (CA8 Minn) 146 F2d 536; State v Best, 70 NJ 56, 356 A2d 385; State v Black (Tenn) 524 SW2d 913.

Footnote 78. Le Page v United States (CA8 Minn) 146 F2d 536.

Two separate offenses occurred, armed robbery and assault with intent to commit murder in the second degree, where, though both occurred at substantially the same time and in the course of a single event, the statutory elements of the two offenses were different, neither offense was included within the other, and the same evidence was not required to prove one as was required to prove the other.  State v Black (Tenn) 524 SW2d 913.

Footnote 79. People v Bailey, 55 Cal 2d 514, 11 Cal Rptr 543, 360 P2d 39; State v Best, 70 NJ 56, 356 A2d 385.

Under a state statute expressly prohibiting cumulation of convictions and sentences for inchoate crimes designed to culminate in the commission of the same crime, a trial court erred in convicting and sentencing defendant for both attempted theft and possession of an instrument of crime where defendant's conduct (breaking into an automobile while in possession of a screwdriver and roll of tape) was designed to culminate in the commission of only one crime, theft of the auto.  Commonwealth v Jackson, 261 Pa Super 355, 396 A2d 436.

In a prosecution for obtaining money by false pretenses, there is but one offense where the prosecution evidence disclosed only one intention, one general impulse, and one plan on the part of the accused.  State v Aurgemma, 116 RI 425, 358 A2d 46.

As to principles governing identity of offenses, insofar as a claim of former jeopardy is concerned, see  §§ 266 et seq., infra.

Footnote 80. 50 Am Jur 2d,  Larceny § 4.

Footnote 81. Goff v State, 186 Tenn 212, 209 SW2d 13 (common-law offense of exercising a common vocation of life on Sunday).

Where commission of one crime necessarily involves commission of a second, the offense so involved is said to be merged in the offense of which it is a part. 82   However, when one of the two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence for both, though both are, in a sense, successive steps in the same transaction. 83   Thus, the doctrine of merger does not apply where the offenses are separate and distinct, 84  but only where the identical criminal act constitutes both offenses. 85   The merger doctrine had its origin in the fact that, at the early common law, persons charged with misdemeanor were entitled to certain privileges not available to persons charged with felony. 86     Since this situation no longer obtains and the distinction, if any, runs in the opposite direction, the original reason for the rule has disappeared and thus the conventional merger doctrine has become disfavored and either confined within narrow limits or abolished altogether. 87  But a different form of merger may take place under some modern federal statutes.  Thus, under the Federal Bank Robbery Act, for example, 88   the crime of entering a bank with intent to commit a robbery is merged with the crime of robbery when the latter crime is consummated.  This principle is based not on anything resembling the common-law merger doctrine, but rather on the view that the unlawful entry provision was inserted merely to cover the situation where a person enters a bank for the purpose of committing a crime, but is frustrated for some reason before completing the crime. 89    Whether one federal offense merges with another, at least for purposes of punishment, is held to present a question of statutory interpretation. 90

Practice Aids: Participation in larceny or theft as precluding conviction for receiving or concealing the stolen property  29 ALR5th 59.

Solicitation to commit crime against more than one person or property, made in single conversation as single or multiple crimes.  24 ALR4th 1324.

Adequacy of defense counsel's representation of criminal client regarding guilty pleas.  10 ALR4th 8.

Although kidnapping charge merges into other crime when asportation of victim for relatively short period of time is incidental to robbery, rape, or assault, thus precluding conviction for kidnapping, merger doctrine was inapplicable where asportation of victim was not for purpose of assault, and assault constituted separate crime committed during course of second-degree kidnapping. People v Carmichael (1989, 4th Dept)  155 AD2d 983, 547 NYS2d 786, app den  75 NY2d 811, 552 NYS2d 561, 551 NE2d 1239.

Second-degree kidnapping charge would not be merged with robbery count where defendant robbed victim, forced him to assist defendant in burglarizing his own apartment, and then forced him to accompany defendant and accomplice on automobile drive to other location to exchange his television for drugs; kidnapping was not incidental or inseparable from robbery, which had been completed at time victim was forced to assist in burglary. People v Butts (1992, 1st Dept)  181 AD2d 432, 580 NYS2d 758, app den  79 NY2d 1047, 584 NYS2d 1014, 596 NE2d 412.

Second-degree kidnapping conviction should have been dismissed as having merged with underlying substantive offense of attempted rape where victim had been forced into car at gunpoint and driven only a few blocks before she fought her way out of car, since independent criminal responsibility for abduction could not fairly be attributed to defendant. People v Johnson (1992, 2d Dept)  181 AD2d 914, 581 NYS2d 850, app den  80 NY2d 833, 587 NYS2d 917, 600 NE2d 644, habeas corpus den (ED NY) 1992 US Dist LEXIS 20097.

Second-degree kidnapping conviction was not barred by merger doctrine on ground that abduction and detention of victim were incidental to robbery, in view of evidence that defendant and accomplices continued to restrain victim in vacant apartment and tortured him after his possessions were taken from him. People v Taylor (1992, 1st Dept)  184 AD2d 218, 584 NYS2d 966, related proceeding (1st Dept)  187 AD2d 399, 590 NYS2d 709, app den  81 NY2d 970.

Defendant could be lawfully convicted of crimes of second-degree murder, first-degree kidnapping and first-degree robbery arising from robbery, kidnapping and murder of victim since merger doctrine is inapplicable to first-degree kidnapping, and count charging first-degree robbery was not lesser included offense of felony murder charge. People v Rivers (1989, 2d Dept)  150 AD2d 736, 542 NYS2d 19, app den  74 NY2d 851, 546 NYS2d 1016, 546 NE2d 199.

Even if merger doctrine were applicable to defendant's second-degree kidnapping conviction because abduction and detention of victim were incidental to robbery, detention, which involved torture, was so unnecessarily cruel that it fell within exception for detentions which, although incidental to commission of another crime, are horrendous. People v Taylor (1992, 1st Dept)  184 AD2d 218, 584 NYS2d 966, related proceeding (1st Dept)  187 AD2d 399, 590 NYS2d 709, app den  81 NY2d 970.

Defendant's conviction of second-degree kidnapping would be reversed, as merged with his conviction of first-degree sodomy, since facts adduced at trial established that victim's kidnapping was incidental to and inseparable from commission of sodomy. People v Doyen (1989, 4th Dept)  155 AD2d 894, 547 NYS2d 489, app den  75 NY2d 769, 551 NYS2d 912, 551 NE2d 113.

In determining whether crimes merge for the purpose of sentencing, the court must inquire whether the elements of the lesser crime are all included within the elements of the greater crime and whether the greater offense includes at least one additional element which is different–in which case the sentences merge–or whether both crimes require proof of at least one element which the other does not–in which case the sentences do not merge. Commonwealth v Anderson (1994, Pa) 650 A2d 20, reh den, mod, remanded (Pa) 1994 Pa LEXIS 751.

The same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses. "The same facts" means any act or acts which the accused has performed and any intent which the accused has manifested, regardless of whether these acts and intents are part of one criminal plan, scheme, transaction or encounter, or multiple criminal plans, schemes, transactions or encounters. Commonwealth v Anderson (1994, Pa) 650 A2d 20, reh den, mod, remanded (Pa) 1994 Pa LEXIS 751.

Charges of aggravated assault and robbery merged where the charges arose from an incident in which the defendant struck the victim over the head with a crowbar and took his wallet since the aggravated assault was established by the blow to the victim's head with the crowbar and the taking of the wallet would have constituted theft instead of robbery without that blow. Commonwealth v Moore (1992, Super Ct) 617 A2d 816.

Footnote 82. Adams v State (Fla App D2) 310 So 2d 782, revd, in part on other grounds (Fla) 335 So 2d 801 (ovrld on other grounds State v Pinder (Fla) 375 So 2d 836); Commonwealth ex rel. Moszczynski v Ashe, 343 Pa 102, 21 A2d 920 (citing, as examples of the rule, the offenses of rape and fornication, and robbery and assault).

Footnote 83. Commonwealth ex rel. Moszczynski v Ashe, 343 Pa 102, 21 A2d 920.

Footnote 84. Villines v United States (Dist Col App) 320 A2d 313; Gilpin v State, 142 Md 464, 121 A 354.

Footnote 85. Pivak v State, 202 Ind 417, 175 NE 278.

Footnote 86. At common law, if a misdemeanor was an ingredient of a felony, the misdemeanor was said to be merged in the felony and prosecution could only be had for the latter. Bell v State, 48 Ala 684; State v Setter, 57 Conn 461, 18 A 782; People v Richards, 1 Mich 216; State v Hamey, 168 Mo 167, 67 SW 620; People v Mather, 4 Wend (NY) 229; Commonwealth v Comber, 374 Pa 570, 97 A2d 343,  37 ALR2d 1058; Grindstaff v State, 172 Tenn 77, 110 SW2d 309.

As to whether conspiracy to commit crime is merged in the completed offense, see 16 Am Jur 2d,  Conspiracy § 9.

Footnote 87. People v Causley, 299 Mich 340, 300 NW 111; Grindstaff v State, 172 Tenn 77, 110 SW2d 309.

Footnote 88. 18 USCS §  2113.

Footnote 89. 67 Am Jur 2d,  Robbery § 92.

Footnote 90. United States v Cedar (CA9 Cal) 437 F2d 1033.

2.  Particular Classifications or Kinds of Offenses [22-30]

a.  In General [22-27]

A crime is generally described as one of moral turpitude if it is an act of baseness, vileness, or depravity in the private and social duties which an individual owes to his fellow men or to society in general. 91

Insofar as moral turpitude is concerned, it is said that crimes fall into three classifications:  those, such as frauds, which necessarily involve moral turpitude; those, such as overtime parking, so obviously petty that conviction carries no suggestion of moral turpitude; and, finally, those which may be saturated with moral turpitude, yet do not involve it necessarily, since it is not a necessary element for conviction. 92   Evasion of federal income taxes, for example, 93   and refusal to answer proper questions of a congressional committee 94   have been held to fall within the third category.  On the other hand, such offense as obtaining money from another by fraud or false pretenses, or larceny after trust, are crimes malum in se which necessarily involve moral turpitude. 95  

Prior conviction for aiding and abetting malicious destruction by use of explosives, in violation of part of 18 USCS §  844(i) that involved only damage to property, was for "crime of violence" within meaning of USSG § 4B1.1, since, under categorical approach, offense involving use of explosives need not actually expose person to serious potential risk of physical injury before qualifying as crime of violence. United States v Morrison (1992, CA9 Nev) 972 F2d 269, 92 CDOS 6817, 92 Daily Journal DAR 10887.

So-called continuous-course-of-conduct crimes, generally committed against the same victim who sustains cumulative injury, require neither allegations nor unanimous findings of specific acts. In cases where violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, the prosecutor is required to elect which act is being relied on to prove the crime charged, or the jury must be given a unanimity instruction. By contrast, when the issue presented to the jury is whether a defendant committed a proscribed course of conduct rather than a specific act on a specific day, the prosecutor does not have to elect a specific act and the jury need not unanimously agree on a specific act. People v Higgins (1992, 3rd Dist) 9 Cal App 4th 294, 11 Cal Rptr 2d 694, 92 CDOS 7614, 92 Daily Journal DAR 12284.

Footnote 91. State v Malusky, 59 ND 501, 230 NW 735.

The conduct which the law has made criminal must be not only socially undesirable, but it must, by its nature, be base or depraved.  State v Fournier, 123 Vt 439, 193 A2d 924 (holding drunken driving not a crime involving moral turpitude).

Footnote 92. Twentieth Century-Fox Film Corp. v Lardner (CA9 Cal) 216 F2d 844,  51 ALR2d 728, cert den  348 US 944,  99 L Ed 739,  75 S Ct 365, reh den  348 US 965,  99 L Ed 753,  75 S Ct 522.

Whether a crime involves moral turpitude does not depend upon unnecessary adjectives added to the indictment by overzealous prosecutors.  Baker v Miller, 236 Ind 20, 138 NE2d 145,  59 ALR2d 1393.

Footnote 93. Baker v Miller, 236 Ind 20, 138 NE2d 145,  59 ALR2d 1393.

Footnote 94. Twentieth Century-Fox Film Corp. v Lardner (CA9 Cal) 216 F2d 844,  51 ALR2d 728, cert den  348 US 944,  99 L Ed 739,  75 S Ct 365, reh den  348 US 965,  99 L Ed 753,  75 S Ct 522.

Footnote 95. Huff v Anderson, 212 Ga 32, 90 SE2d 329,  52 ALR2d 1310 (presenting false claims against the United States).

Unless the offense is one which by its very commission implies a base and depraved nature, the question of moral turpitude depends not only on the nature of the offense, but also on the attendant circumstances. 96   The standard is public sentiment, and this may change as the moral views and opinions of the public change. 97  Moreover, a crime which involves moral turpitude by the moral standards of one community might not do so in another. 98   The view is sometimes taken that crimes which are malum in se involve moral turpitude, while those which are malum prohibitum do not. 99    However, it has been said that while this is generally true, it is not true in every case. 1

Moral turpitude is a term that is said to imply something which is immoral in itself, without reference to any legal prohibition. 2   Accordingly, it has been said that an act which was not considered wrong at common law does not involve moral turpitude merely because of a statutory enactment making it a crime. 3    It is the inherent nature of the offense which is determinative, not the name given it by statute, 4  nor the legislature's decision to designate the offense a felony or a misdemeanor. 5   Accordingly, a felony does not, as such, necessarily involve moral turpitude, 6   whereas a misdemeanor may do so. 7   It has, however, been suggested that any intentional violation of a statute may involve moral turpitude if the statute expresses a moral judgment against the conduct prohibited. 8  And it has also been suggested that the fact that an act is penalized, and the character of the punishment for it, are circumstances to be considered in determining turpitude. 9   It has been held that moral turpitude inheres in the intent and that therefore there can be no distinction in respect to moral turpitude between a substantive crime and an attempt to commit that crime. 10

Practice Aids: Gegan, More Cases Of Depraved Mind Murder: The Problem Of Mens Rea, 64 St.J LR 429, Spring/Summer, 1990.

Footnote 96. Rudolph v United States, 55 App DC 362, 6 F2d 487,  40 ALR 1042, cert den  269 US 559,  70 L Ed 411,  46 S Ct 20.

Footnote 97. State v Malusky, 59 ND 501, 230 NW 735.

Footnote 98. Re Dampier, 46 Idaho 195, 267 P 452.

Footnote 99. State v Fournier, 123 Vt 439, 193 A2d 924 (the legislature, in providing that only conviction of crime involving moral turpitude shall be admissible to impeach witness, undoubtedly intended to employ distinction between crimes mala in se and those mala prohibita).

As to elements of acts mala in se and mala prohibita, see  § 27, infra.

Footnote 1. Du Vall v Board of Medical Examiners, 49 Ariz 329, 66 P2d 1026.

Footnote 2. State v Malusky, 59 ND 501, 230 NW 735.

Footnote 3. Baker v Miller, 236 Ind 20, 138 NE2d 145,  59 ALR2d 1393.

Footnote 4. United States ex rel. Fontan v Uhl (DC NY) 16 F Supp 428 (holding that an offense, under French law, of not having paid one's ship passage does not constitute a crime involving moral turpitude, even though designated as a "robbery").

Footnote 5. Tillinghast v Edmead (CA1 Mass) 31 F2d 81.

Footnote 6. Baker v Miller, 236 Ind 20, 138 NE2d 145,  59 ALR2d 1393 (evasion of federal income tax).

Footnote 7. Tillinghast v Edmead (CA1 Mass) 31 F2d 81 (petit larceny).

Footnote 8. Rudolph v United States, 55 App DC 362, 6 F2d 487, cert den  269 US 559,  70 L Ed 411,  46 S Ct 20.

Footnote 9. State v Malusky, 59 ND 501, 230 NW 735.

Footnote 10. United States ex rel. Meyer v Day (CA2 NY) 54 F2d 336.

The distinction between what are termed "infamous" crimes and other crimes arises in a number of different contexts.  The Fifth Amendment to the United States Constitution provides that, except in certain military cases, no person shall be held to answer for a capital, "or otherwise infamous crime," unless on a presentment or indictment of a grand jury. 11   Many state constitutions contain identical or similar provisions. 12    At common law, one convicted of an infamous crime was disqualified as a witness, 13   and statutes removing the disability frequently provide that a conviction of infamous crime may be shown as affecting credibility. 14  Legal infamy or criminality also made one incompetent to serve as a juror at common law. 15  

A state constitution or statute may provide that persons convicted of infamous crimes are not eligible to vote 16   or hold public office, 17  or that a public office automatically becomes vacant when the incumbent is convicted of an infamous crime. 18    Persons so convicted have also been disqualified by statute to serve as executors. 19   And under some statutes a conviction of infamous crime is ground for divorce or dissolution of marriage.

Footnote 11. US Const Fifth Amendment.

Footnote 12. 41 Am Jur 2d,  Indictments and Informations §§ 7,  10.

Footnote 13. 81 Am Jur 2d,  Witnesses § 94.

Footnote 14. 81 Am Jur 2d,  Witnesses § 571.

Footnote 15. 47 Am Jur 2d,  Jury § 106.

Footnote 16. Truchon v Toomey, 116 Cal App 2d 736, 254 P2d 638,  36 ALR2d 1230; State ex rel. Dean v Haubrich, 248 Iowa 978, 83 NW2d 451; People v Fabian, 192 NY 443, 85 NE 672.

Footnote 17. Becker v Green County,  176 Wis 120, 184 NW 715, reh den  176 Wis 135, 186 NW 584.

Annotation:  52 ALR2d 1314, § 2.

Footnote 18. Briggs v Board of County Com'rs, 202 Okla 684, 217 P2d 827,  20 ALR2d 727.

Footnote 19. Garitee v Bond, 102 Md 379, 62 A 631.

Courts have declared that it should not necessarily be assumed that the term "infamous crime," when used in a requirement of a grand jury accusation, has the same meaning or covers the same offenses as it does when used in other connections. 20    At common law there are two kinds of infamy, one founded in the opinion of the people respecting the mode of punishment, and the other in the construction of the law respecting the future credibility of the delinquent. 21    The United States Supreme Court has construed the Fifth Amendment guaranty that accusations of infamous crime must be brought by a grand jury as referring to the former kind, rather than the latter, 22  and therefore as applying to any crime for which an infamous punishment may be imposed. 23  The principle has since become firmly established that, so far as the constitutional guaranty of grand jury accusation is concerned, whether a crime is "infamous" turns neither on the character of the crime nor on whether Congress has so denominated it, but on the punishment the court has authority to impose. 24  This is the generally accepted view, not only under the Fifth Amendment, but under analogous state provisions. 25   There is, however, some authority to the effect that, in the absence of a statutory definition of "infamous," the common-law rule must govern. 26   Some earlier decisions applied a "nature of the crime" test to determine whether grand jury indictment was required. 27   And the view has also been expressed that either the nature of the crime or the punishment can render an offense "infamous" within the meaning of a requirement of grand jury accusation. 28

Where the penalty is looked to for determination whether an indictment is necessary, it does not necessarily follow that the nature of the crime is irrelevant in determining whether an offense is "infamous" for purposes of applying a disqualification or other collateral result of conviction. 29   Thus, although the punishment inflicted may govern the requirement of indictment, the test for disqualification of a witness is the nature of the crime. 30

What punishments will be considered infamous may be affected, it is said, by changes of public opinion from one period of time to another. 31   By modern standards, a crime punishable by imprisonment in the state prison or penitentiary is an infamous crime, whether the accused is or is not sentenced to hard labor. 32   Imprisonment in a county jail, however, is not considered infamous, even though the disciplinary rules of the institution may require or permit imposition of hard labor, so long as the statute does not authorize the requirement of hard labor as part of the punishment. 33   On the other hand, imprisonment at hard labor is generally considered an infamous punishment, regardless of the term or place of confinement. 34  A minimum term of imprisonment is the requirement, according to some authority. 35

Loss of civil and political rights, 36  including disqualification to hold office, if inflicted as a punishment for crime, 37   has been held to constitute an infamous punishment.

In determining whether an offense is one which must be prosecuted by indictment, the question is whether it is one for which the statutes authorize an infamous punishment, not whether the punishment actually awarded is infamous. 38  When the accused is in danger of an infamous punishment if convicted, he has the right to insist that he not be put upon trial except on accusation of a grand jury. 39   Accordingly, the fact that the court has power to order that the imprisonment be served in the penitentiary is sufficient to make the offense infamous. 40   And a statute which provides for prosecution of an infamous crime on information is not saved from invalidity by an alternative provision for imposition of a fine. 41    

As to the second kind of infamy at common law, that founded on the construction of the law as to the future credibility of the offender, 42  infamous crimes, in this sense, include treason, felony, and those crimes of dishonesty included within the term "crimen falsi." 43   The latter category, according to some authorities, did not include all crimes of untruthfulness, but only such as injuriously affect the administration of public justice. 44     

Some courts have expressed the view that all felonies are infamous crimes. 45   Where felonies are defined as crimes punishable by imprisonment in the state prison or penitentiary, it is clear that any felony is necessarily infamous for purposes of a constitutional provision requiring grand jury indictment for such offenses. 46  Conversely, misdemeanors are ordinarily not infamous for this purpose, although they may be if imprisonment at hard labor, or some other infamous punishment which would not make the offense a felony, may be imposed. 47   Some courts hold, in applying a disqualification, that any felony is an infamous crime. 48   Others hold that a felony, for this purpose, is not necessarily infamous, 49  while a misdemeanor carrying slight punishment may be so. 50  It has been suggested that for purposes of ineligibility for public office any felony is an infamous crime if it is inconsistent with commonly accepted principles of honesty and decency, or if it involves moral turpitude. 51      

Crimes which carry an infamous punishment are frequently treated as necessarily infamous with regard to the collateral results of a conviction. Thus, it has been held that crimes punishable by imprisonment in the penitentiary are infamous crimes which disqualify the convicted person to vote 52  or to hold office. 53    And it has been held that whether a crime is infamous for such purposes is determined, not by the nature of the offense, but by the punishment prescribed. 54    Other decisions, however, apply the common-law test in this area and accordingly hold that it is the nature of the offense, not the severity of the punishment, which determines whether legal infamy results from a conviction. 55   And others, for this purpose, take into account the nature of the crime, the punishment, and whether the punishment is mandatory or merely authorized. 56

In statutes dealing with disqualifications arising from a conviction of infamous crime, it has been held that this term, if not otherwise defined by statute, has the same meaning as at common law. 57   And in applying such a disqualification, it has been held that a state court need not regard a federal offense as disqualifying merely because it carries an infamous punishment and would therefore be regarded as infamous by the federal court for the purpose of requiring prosecution by indictment. 58   Under a statute providing that every person convicted of certain specified offenses "shall be deemed infamous" and incur specified disabilities, it is a conviction of one of the enumerated crimes, or of another that has been declared infamous by judicial decision, that renders the person infamous, and not the place of confinement. 59  But it has been held that where the state constitution excludes from public office certain persons convicted of infamous crimes, the determination of what crimes fall within this provision is not an exclusive legislative function. 60    It would appear that the nature of the crime continues to be the test, at least according to most courts, in determining what convictions may be shown to disqualify a witness. 61 

Footnote 20. Ex parte Wilson,  114 US 417,  29 L Ed 89,  5 S Ct 935; Butler v Wentworth, 84 Me 25, 24 A 456.

Footnote 21. Ex parte Wilson,  114 US 417,  29 L Ed 89,  5 S Ct 935.

Footnote 22. Mackin v United States,  117 US 348,  29 L Ed 909,  6 S Ct 777.

Footnote 23. Although the common-law rule was that the infamy which disqualified a person as a witness depended on the character of the crime, not the nature of the punishment, the test for determining whether the conviction marks the convict as unreliable was not appropriate in applying the constitutional guaranty; the latter is for the protection of the accused, and whether he can be put to trial without such protection should depend on the consequences to himself if found guilty.  Ex parte Wilson,  114 US 417,  29 L Ed 89,  5 S Ct 935 (pointing to the Fifth Amendment phrase "a capital, or otherwise infamous crime," and stating that since the leading word "capital" describes the crime by its punishment only, an elementary rule of construction requires that the rest of the phrase include crimes subject to any infamous punishment, whether or not it also includes crimes infamous in their nature, independently of the punishment affixed).

Footnote 24.
Annotation:  2 L Ed 2d 1960, § 2.

Criminal contempt occupies a unique status under the Constitution and is not an "infamous crime" within the meaning of the Fifth Amendment guaranty, even when subject to an infamous punishment.  Green v United States,  356 US 165,  2 L Ed 2d 672,  78 S Ct 632 (disapproved on other grounds Bloom v Illinois  391 US 194,  20 L Ed 2d 522,  88 S Ct 1477).

See also 17 Am Jur 2d,  Contempt §§ 78,  82.

Footnote 25. Garnsey v State, 4 Okla Crim 547, 112 P 24; State v Nichols, 27 RI 69, 60 A 763.

Footnote 26. Re Application of Westenberg, 167 Cal 309, 139 P 674.

Footnote 27. De Jianne v United States (CA3 NJ) 282 F 737; United States v Yates (DC NY) 6 F 861; State v Keyes, 8 Vt 57.

Footnote 28. Re Application of Westenberg, 167 Cal 309, 139 P 674.

Footnote 29. Butler v Wentworth, 84 Me 25, 24 A 456.

Footnote 30. Butler v Wentworth, 84 Me 25, 24 A 456.

Footnote 31. Mackin v United States,  117 US 348,  29 L Ed 909,  6 S Ct 777; Ex parte Wilson,  114 US 417,  29 L Ed 89,  5 S Ct 935.

Annotation:  2 L Ed 2d 1960, § 3[a].

Footnote 32. Re Claasen,  140 US 200,  35 L Ed 409,  11 S Ct 735; United States v De Walt,  128 US 393,  32 L Ed 485,  9 S Ct 111; Mackin v United States,  117 US 348,  29 L Ed 909,  6 S Ct 777.

Annotation:  2 L Ed 2d 1964, § 3[a].

In the federal courts, any offense for which imprisonment for more than one year may be imposed is an infamous crime, in view of statutes providing that persons sentenced to imprisonment for more than one year may be confined in the federal penitentiary, but the fact that there are multiple counts and cumulative sentences that could exceed one year does not require a holding that the prosecution should have been commenced by indictment.  Rossini v United States (CA8 Minn) 6 F2d 350; De Jianne v United States (CA3 NJ) 282 F 737.

Footnote 33. Brede v Powers,  263 US 4,  68 L Ed 132,  44 S Ct 8.

Footnote 34. United States v Moreland,  258 US 433,  66 L Ed 700,  42 S Ct 368.

Annotation:  2 L Ed 2d 1960, § 3[a].

Footnote 35. State v Nichols, 27 RI 69, 60 A 763 (one year or more).

Footnote 36. People v Russell, 245 Ill 268, 91 NE 1075; Baum v State, 157 Ind 282, 61 NE 672.

Footnote 37. People ex rel. Akin v Kipley, 171 Ill 44, 49 NE 229, error dismd  170 US 182,  42 L Ed 998,  18 S Ct 550.

Footnote 38. Re Claasen,  140 US 200,  35 L Ed 409,  11 S Ct 735; Mackin v United States,  117 US 348,  29 L Ed 909,  6 S Ct 777; Ex parte Wilson,  114 US 417,  29 L Ed 89,  5 S Ct 935; Butler v Wentworth, 84 Me 25, 24 A 456.

Annotation:  2 L Ed 2d 1960, § 2.

Footnote 39. United States v Moreland,  258 US 433,  66 L Ed 700,  42 S Ct 368.

Footnote 40. Parkinson v United States,  121 US 281,  30 L Ed 959,  7 S Ct 896.

Footnote 41. United States v Moreland,  258 US 433,  66 L Ed 700,  42 S Ct 368.

Footnote 42. The test at common law was whether the crime showed such depravity in the perpetration, or such a disposition to pervert public justice, as to create a violent presumption against the offender's truthfulness under oath.  Smith v State, 129 Ala 89, 29 So 699.

Footnote 43. Re Application of Westenberg, 167 Cal 309, 139 P 674; Kurtz v Farrington, 104 Conn 257, 132 A 540; State v Bezemer, 169 Wash 559, 14 P2d 460.

Footnote 44. Ex parte Wilson,  114 US 417,  29 L Ed 89,  5 S Ct 935; Matzenbaugh v People, 194 Ill 108, 62 NE 546 (ovrld on other grounds Knowles v Panopoulos 66 Ill 2d 585, 6 Ill Dec 858, 363 NE2d 805,  97 ALR3d 1144).

Footnote 45. State ex rel. Anderson v Fousek, 91 Mont 448, 8 P2d 791,  84 ALR 303 (ovrld on other grounds Melton v Oleson 165 Mont 424, 530 P2d 466); Stewart v State, 41 Ohio App 351, 12 Ohio L Abs 74, 181 NE 111.

Footnote 46. Re Application of Westenberg, 167 Cal 309, 139 P 674; State v Arris, 121 Me 94, 115 A 648.

Annotation:  2 L Ed 2d 1960, § 4.

Footnote 47. United States v Moreland,  258 US 433,  66 L Ed 700,  42 S Ct 368.

Annotation:  2 L Ed 2d 1960, § 4.

Footnote 48. Briggs v Board of County Com'rs, 202 Okla 684, 217 P2d 827,  20 ALR2d 727 (statute vacating public office on conviction).

Footnote 49. State v Laboon, 107 SC 275, 92 SE 622 (manslaughter).

Footnote 50. State v O'Shields, 163 SC 408, 161 SE 692 (petit larceny).

Footnote 51. People ex rel. Keenan v McGuane, 13 Ill 2d 520, 150 NE2d 168,  71 ALR2d 580, cert den  358 US 828,  3 L Ed 2d 67,  79 S Ct 46.

Footnote 52. Stephens v Toomey, 51 Cal 2d 864, 338 P2d 182; State ex rel. Dean v Haubrich, 248 Iowa 978, 83 NW2d 451.

Footnote 53. Crampton v O'Mara, 193 Ind 551, 139 NE 360, error dismd  267 US 575,  69 L Ed 795,  45 S Ct 230.

Annotation:  52 ALR2d 1314, § 2[a].

Footnote 54. Briggs v Board of County Com'rs, 202 Okla 684, 217 P2d 827,  20 ALR2d 727 (statute vacating public office when incumbent is convicted of infamous crime).

Footnote 55. Smith v State, 129 Ala 89, 29 So 699; Garitee v Bond, 102 Md 379, 62 A 631.

Neither a change in the nature of the punishment, nor the designation of an offense as a felony, alters the moral qualities which must be taken into consideration in determining whether an offense is an infamous crime which disqualifies a witness.  State v Laboon, 107 SC 275, 92 SE 622.

Footnote 56. Kurtz v Farrington, 104 Conn 257, 132 A 540.

Footnote 57. Smith v State, 129 Ala 89, 29 So 699 (statute removing disqualification as witness, but providing that conviction can be shown to affect credibility).

Footnote 58. Garitee v Bond, 102 Md 379, 62 A 631 (disqualification to serve as executor).

In construing state statutes relating to voter disqualification, a Montana voter cannot be denied the right to vote because of a conviction of an offense in federal court that would not be a felony by state statutory definition.  Melton v Oleson, 165 Mont 424, 530 P2d 466 (ovrlg State ex rel. Anderson v Fousek, 91 Mont 448, 8 P2d 791).

Footnote 59. People ex rel. Latimer v Randolph, 13 Ill 2d 552, 150 NE2d 603, cert den  358 US 852,  3 L Ed 2d 85,  79 S Ct 80, disapproving any intimation to the contrary in People v Queen, 326 Ill 492, 158 NE 148.

Footnote 60. The court is not obliged to treat as exclusive a statutory enumeration which omits many crimes deemed infamous at the time the Constitution was adopted.  People ex rel. Keenan v McGuane, 13 Ill 2d 520, 150 NE2d 168,  71 ALR2d 580, cert den  358 US 828,  3 L Ed 2d 67,  79 S Ct 46.

Footnote 61. See 81 Am Jur 2d,  Witnesses § 94.

A "capital" crime is the denomination ordinarily used to describe an offense punishable by death. 62     However, the death penalty is held not to be necessarily an essential element of a capital offense. 63   For example, even though a trial court's jurisdiction over juveniles is limited by statute to "capital offenses" and a rule of procedure defines a capital offense as one punishable by death, it has been held that the court does not lose jurisdiction over a juvenile defendant in a first-degree murder prosecution merely because the state's death penalty statute was declared unconstitutional, since the death penalty statute itself constituted a legislative declaration that murder constituted a capital offense and murder would remain so classified even though the penalty itself could no longer be imposed. 64    

Practice Aids: Streib, The Eighth Amendment and Capital Punishment of Juveniles. 44 Clev St LR 363,. 1985-86.

A defendant convicted of sexual battery under FS § 794.011(2) was appropriately sentenced to a minimum mandatory 20-year term of imprisonment pursuant to FS § 775.082, which prescribes such a sentence for a person convicted of a capital felony unless the court determines that the death penalty is appropriate, notwithstanding the fact that the Florida Supreme court has ruled that the death penalty provisions of FS § 775.082 cannot be constitutionally imposed for sexual battery. Rusaw v State (1983, Fla App D2) 429 So 2d 1378.

Footnote 62. State v Watkins, 283 NC 17, 194 SE2d 800, cert den  414 US 1000,  38 L Ed 2d 235,  94 S Ct 353.

Footnote 63. Lycans v Bordenkircher (W Va) 222 SE2d 14.

Footnote 64. State v Tyler (La) 342 So 2d 574, cert den  431 US 917,  53 L Ed 2d 227,  97 S Ct 2180.

The law divides crimes into acts wrong in themselves, called "acts mala in se," and acts which would not be wrong but for the fact that positive law forbids them, called "acts mala prohibita." 65    An act which is malum in se has been defined as one inherently wicked; 66  one naturally evil, as adjudged by the sense of a civilized community; 67   one involving illegality from the very nature of the transaction, upon principles of natural, moral, and public law; 68  and one immoral in its nature and injurious in its consequences, without regard to the fact of its being noticed or punished by the law of the state. 69

Almost all common-law offenses are mala in se, 70  and some courts seem to regard any common-law offense as necessarily in this class. 71  Since acts now regarded as mala in se were, as a rule, criminally punished at common law, it is sometimes erroneously assumed that only common-law crimes fall in this category. 72   However, a purely statutory offense may be malum in se. 73   So may an act which amounts only to a civil trespass, provided it has a malicious element or manifests an evil nature or wrongful disposition to harm or injure another in his person or property. 74   It has been suggested that all offenses were at some time merely mala prohibita, and, as civilization advanced and social and moral ideals and standards changed, offenses became, one after another, mala in se. 75

Footnote 65. Hildreth v State, 215 Ark 808, 223 SW2d 757; Coleman v State, 119 Fla 653, 161 So 89; State v Shedoudy, 45 NM 516, 118 P2d 280; People v Treen,  33 Misc 2d 571, 225 NYS2d 787; State v Horton, 139 NC 588, 51 SE 945; Magnolia Pipe Line Co. v State, 95 Okla Crim 193, 243 P2d 369; Whitlock v State, 187 Tenn 522, 216 SW2d 22.

As to distinction between mala in se and mala prohibita as affecting criminal responsibility for unintentional homicide while engaged in an unlawful act, see 40 Am Jur 2d,  Homicide § 77.

Footnote 66. Hildreth v State, 215 Ark 808, 223 SW2d 757.

Footnote 67. People v Treen,  33 Misc 2d 571, 225 NYS2d 787; State v Horton, 139 NC 588, 51 SE 945.

Footnote 68. State v Shedoudy, 45 NM 516, 118 P2d 280; Whitlock v State, 187 Tenn 522, 216 SW2d 22.

Footnote 69. Magnolia Pipe Line Co. v State, 95 Okla Crim 193, 243 P2d 369.

Footnote 70. Magnolia Pipe Line Co. v State, 95 Okla Crim 193, 243 P2d 369.

Footnote 71. Whitlock v State, 187 Tenn 522, 216 SW2d 22.

Footnote 72. State v Horton, 139 NC 588, 51 SE 945.

Footnote 73. People v Causley, 299 Mich 340, 300 NW 111 (statutory offense of malicious injury to electric transmission wire held malum in se, though assumed arguendo not a common-law crime).

The driving of an automobile when intoxicated is malum in se, although the statute merely prohibits it under penalty.  People v Townsend, 214 Mich 267, 183 NW 177.

Footnote 74. State v Horton, 139 NC 588, 51 SE 945.

Footnote 75. State v Malusky, 59 ND 501, 230 NW 735.

The grading of offenses has been said to be a legislative function. 76  Accordingly, it has been held that where a statute expressly designates an offense a felony or misdemeanor, the designation is conclusive. 77   Moreover, such designation is conclusive regardless of the punishment prescribed and even though by common-law definition, or by the definition given in a statute declaring generally what are felonies and what are misdemeanors, it would fall in the other class.  In such case, the statute concerning the particular criminal act works an exception to the general definition. 78   In line with this view, the rule classifying offenses as felonies or misdemeanors according to the penalty is sometimes stated as applicable only to statutory offenses which are not classified by the statute creating them. 79

On the other hand, there is authority for the view that statutory nomenclature does not necessarily determine the grade or class of a crime. 80   Under this view, the nature of the offense and the penalty imposed by law determine whether the offense is a misdemeanor or a felony, not the mere name the legislature attached to it, 81  and the fact that the statute calls an offense a misdemeanor will not make it so when the punishment imposed makes it a felony 82  or a gross misdemeanor. 83

Under a constitutional provision declaring offenses punishable in the state prison to be felonies, an offense which the legislature has made so punishable is a felony, notwithstanding the legislature may have denominated it a high misdemeanor. 84   And where a state constitution provides that offenses of the grade of misdemeanor may be tried without jury, the legislature has no power to create a new crime of the grade of felony and provide a severe punishment for it, while at the same time making the offense triable without a jury by designating it as a misdemeanor. 85

The mere fact that a criminal statute allows for a defendant to be charged with either a felony or a misdemeanor does not violate equal protection, so long as the elements necessary to prove the felony and misdemeanor are different. 86

Sentencing court did not err in rejecting defendant's unsubstantiated claim, raised for first time at sentencing hearing, that he was only 15 years old and not criminally responsible for crimes for which he was convicted where, during plea proceedings, defendant represented that he was 16 years old, and probation report also stated that defendant was 16 years old. People v Brown (1993, 2d Dept)  190 App Div 2d 742, 593 NYS2d 331.

Footnote 76. People v Causley, 299 Mich 340, 300 NW 111; People v Harvey, 307 NY 588, 123 NE2d 81.

Footnote 77. State v Arris, 121 Me 94, 115 A 648; People v Harvey, 307 NY 588, 123 NE2d 81; State ex rel. Gaynon v Krueger,  31 Wis 2d 609, 143 NW2d 437.

Footnote 78. Nation v State, 154 Fla 337, 17 So 2d 521; State ex rel. Stinger v Krueger, 280 Mo 293, 217 SW 310.

Footnote 79. Eckhardt v People, 126 Colo 18, 247 P2d 673.

Footnote 80. State v Kelly, 218 Minn 247, 15 NW2d 554.

Footnote 81. Re Application of Rogers, 20 Cal App 2d 397, 66 P2d 1237 (stating that it is evident that the mere inadvertent naming of petit larceny as a felony would not have the effect of transforming a well-known misdemeanor into a felony).

Footnote 82. State v Harwood, 206 NC 87, 173 SE 24 (destruction of public records and fabrication of evidence held felonies for disbarment purposes, though denominated misdemeanors in statute).

18 USCS §  1 provides that any offense punishable by a term of imprisonment exceeding 1 year is a felony, notwithstanding any act of Congress to the contrary; therefore, notwithstanding the fact that 7 USCS §  270 denominates proscribed acts as misdemeanors, acts are nevertheless felonies since acts subject the offender to a possible term of imprisonment of up to 10 years.  United States v Schutte (CA10 Kan) 610 F2d 698.

Footnote 83. State v Kelly, 218 Minn 247, 15 NW2d 554.

Footnote 84. People v Godding, 55 Colo 579, 136 P 1011.

Footnote 85. People ex rel. Cooley v Wilder, 234 App Div 256, 255 NYS 218.

Footnote 86. Holton v State (Alaska) 602 P2d 1228.

It has been said that all crimes are comprehended within the terms felony and misdemeanor, 87  or treason, felony, and misdemeanor 88  and that there can no additional category of criminal offenses. 89

At early common law no crime was considered a felony if it did not occasion a total forfeiture of the offender's land or goods, or both. 90   Of course, by this standard, there would no longer be any felonies, 91  but the term continues in use as a designation for the more serious class of crimes. 92    In the case of misdemeanors, there was at common law either no forfeiture at all or a much more limited one. 93   While, at common law, the difference in punishment between felonies and misdemeanors was very great, under federal statutes, the difference is much less important, and Congress may exercise a relatively wide discretion in classifying particular offenses as felonies or misdemeanors. 94    

In the absence of statute, felonies are such serious offense as were formerly punishable by death or by forfeiture of lands or goods. 95   However, the matter is now generally governed by constitution or statute. 96    

The general and customary meaning of the word "misdemeanor" is an indictable offense not amounting to a felony; but the word may also be used to include offenses not punishable by indictment. 97  Under modern rules, whether a criminal act is to be classed as a felony or a misdemeanor usually depends on the character of the punishment provided by the statute defining the crime, 98   not on the nature or character of the wrongful act. 99   Thus, it is not necessary for the legislature to designate an act as a felony or misdemeanor, since the punishment affixed is determinative of the matter. 1  

It has been held that the imposition of enhanced punishment owing to a prior conviction or convictions does not operate to change a misdemeanor into a felony. 2   And, since imprisonment for nonpayment of a fine is imposed, not as punishment, but as a means of collection, it does not make the offense a felony, though the potential term of confinement may be very long. 3  

A distinction commonly adopted, frequently by statute, 4   is that offenses punishable by death, or by imprisonment in the state prison or penitentiary, are felonies, whereas all others are misdemeanors. 5   Generally, where the statute does not state that the offense is a felony or a misdemeanor, or classify it by fixing the place of imprisonment, and doubt exists whether it should be punished by imprisonment in the state penitentiary or in the county jail, defendant will be given the benefit of the doubt and the offense will be deemed a misdemeanor, punishable by confinement in the county jail. 6   This result has been reached even where long-term imprisonment is authorized, since the place of confinement is controlling, rather than the term thereof. 7   Conversely, characterizing an offense as a "misdemeanor" has been held to constitute a sufficient indication that the county jail must be the place of confinement. 8   This distinction, however, is not uniformly followed. Thus, under federal statutes, for example, 9   the maximum term of imprisonment which may be imposed, rather than the place of confinement, controls. 10   And some courts hold that regardless of penalty, only those crimes are felonies which were such at common law, or have been so declared by statute. 11

Where imprisonment in the state penitentiary is authorized by statute, but the court or jury is given discretion to substitute a county jail sentence or a fine, the offense is generally deemed to be a felony, regardless of the penalty actually imposed. 12   Such an offense is regarded by some courts, however, as a misdemeanor. 13

Statutes may classify crimes according to the punishment actually imposed. 14   In a few jurisdictions, by statute, where either felony or misdemeanor penalties are authorized in the discretion of the court, the offense is deemed a felony before judgment, 15  but it becomes a misdemeanor for all purposes thereafter if the misdemeanor penalty is the one imposed. 16   Under a statute of this type, it has been held that the act becomes a misdemeanor after a misdemeanor sentence, even though the statute creating the offense expressly provides that a person who commits the prohibited act "shall be deemed guilty of a felony." 17

Footnote 87. Re Application of Westenberg, 167 Cal 309, 139 P 674; Davis v Riedman (ND) 114 NW2d 881; State v O'Shields, 163 SC 408, 161 SE 692.

Footnote 88. People v Schiaffino, 73 Cal App 357, 238 P 725; Eckhardt v People, 126 Colo 18, 247 P2d 673; Guetling v State, 199 Ind 630, 158 NE 593.

Footnote 89. Commonwealth v New York C. & H. R. R. Co. 206 Mass 417, 92 NE 766.

Footnote 90. Kurtz v Moffitt,  115 US 487,  29 L Ed 458,  6 S Ct 148 (holding desertion from Armed Forces not a felony for purposes of arrest without warrant by civil authorities).

Footnote 91. The common-law rules had ceased to provide an unfailing test long before forfeitures were abolished.  Parliament often declared offenses to be felonies without subjecting the offender to a forfeiture and removed the penalty from other offenses, which nevertheless continued to be recognized as felonies.  These acts of Parliament, as far as they were amendatory and explanatory of the common law, were a part of the common law adopted by the colonies, and the inconsistencies they introduced have always embarrassed the subject in this country.  State v Clark, 83 Vt 305, 75 A 534.

Footnote 92. Davis v Hellwig, 21 NJ 412, 122 A2d 497,  60 ALR2d 866.

Footnote 93. People v Causley, 299 Mich 340, 300 NW 111.

Footnote 94. Carroll v United States,  267 US 132,  69 L Ed 543,  45 S Ct 280.

Footnote 95. Bannon v United States,  156 US 464,  39 L Ed 494,  15 S Ct 467 (the fact that imprisonment in the state prison is authorized makes the offense imfamous, but does not necessarily raise it to the grade of a felony).

Footnote 96. Mackin v United States,  117 US 348,  29 L Ed 909,  6 S Ct 777.

Footnote 97. Commonwealth v Cano, 389 Pa 639, 133 A2d 800, cert den and app dismd  355 US 182,  2 L Ed 2d 186,  78 S Ct 267.

Footnote 98. Fitzpatrick v United States,  178 US 304,  44 L Ed 1078,  20 S Ct 944 (specifying same test for determination of what constitutes "capital crime); Mackin v United States,  117 US 348,  29 L Ed 909,  6 S Ct 777.

Footnote 99. Re Minner, 133 Kan 789, 3 P2d 473.

Footnote 1. Brown v State (Fla) 237 So 2d 129; State v Di Paglia, 247 Iowa 79, 71 NW2d 601,  49 ALR2d 1223; State v Lewis, 142 NC 626, 55 SE 600.

Footnote 2. Block v State,  41 Wis 2d 205, 163 NW2d 196.

Footnote 3. McKinney v Hamilton, 282 NY 393, 26 NE2d 949,  127 ALR 1283 (27 years).

Footnote 4. Bopp v Clark, 165 Iowa 697, 147 NW 172; People v Causley, 299 Mich 340, 300 NW 111; Davis v Riedman (ND) 114 NW2d 881; Fletcher v Commonwealth, 163 Va 1007, 175 SE 895,  95 ALR 1112.

Footnote 5. Roberson v United States (CA5 Ala) 249 F2d 737,  72 ALR2d 434, cert den  356 US 919,  2 L Ed 2d 715,  78 S Ct 704 (under Alabama law); Eckhardt v People, 126 Colo 18, 247 P2d 673; State ex rel. Gaynon v Krueger,  31 Wis 2d 609, 143 NW2d 437 (filing false income tax returns is misdemeanor).

Footnote 6. Davis v Riedman (ND) 114 NW2d 881.

Footnote 7. State v Di Paglia, 247 Iowa 79, 71 NW2d 601,  49 ALR2d 1223 (bribery in an athletic contest held misdemeanor, though the maximum penalty was fixed at 10 years' imprisonment).

Footnote 8. Gherna v State, 16 Ariz 344, 146 P 494.

Footnote 9. 18 USCS §  1.

Footnote 10. Roberson v United States (CA5 Ala) 249 F2d 737,  72 ALR2d 434, cert den  356 US 919,  2 L Ed 2d 715,  78 S Ct 704.

Definition of felony, in 18 USCS §  1, considers only maximum sentence of imprisonment by which offense is punishable, and not sentence actually imposed.  United States v Bonanno (ND Cal) 452 F Supp 743, affd without op (CA9 Cal) 595 F2d 1229.

Footnote 11. Dutton v State, 123 Md 373, 91 A 417 (an assault with intent to rape held not a felony, though the death penalty could be and was imposed).

Footnote 12. Borino v General Registrars of Voters, 86 Conn 622, 86 A 597; State v Vashon, 123 Me 412, 123 A 511; State v McLelland, 312 Mo 68, 278 SW 981; State ex rel. Anderson v Fousek, 91 Mont 448, 8 P2d 791, (ovrld on other grounds Melton v Oleson 165 Mont 424, 530 P2d 466); State v Young, 20 Okla Crim 383, 203 P 484; Fletcher v Commonwealth, 163 Va 1007, 175 SE 895.

Footnote 13. People v Anderson, 342 Ill 290, 174 NE 391.

Footnote 14. State ex rel. Anderson v Fousek, 91 Mont 448, 8 P2d 791, (ovrld on other grounds Melton v Oleson 165 Mont 424, 530 P2d 466).

Footnote 15. Re Application of Rogers, 20 Cal App 2d 397, 66 P2d 1237.

Footnote 16. People v Hamilton, 33 Cal 2d 45, 198 P2d 873.

Footnote 17. People v Trimble, 18 Cal App 2d 350, 63 P2d 1173.

At common law two classes of misdemeanors were recognized; those of a heinous nature, which might be punished corporally, and those not heinous. 18   The terms "gross misdemeanor," "high misdemeanor," and the like, are of statutory origin, invented to permit a like distinction between petty offenses and those of a more serious nature. 19   However, the distinction between high and low misdemeanors is not uniformly observed. 20   The phrase "high crimes and misdemeanors" has been said to include such immoral and unlawful acts as are nearly allied and equal in guilt to felony, but which, owing to some technical circumstance, do not fall within the definition of felony. 21

It has been said that all crimes are comprehended within the terms felony and misdemeanor, or treason, felony, and misdemeanor and that there can be no additional category. 22    According to this view, the term misdemeanor means any offense below the grade of felony. 23   Some authorities, however, though recognizing that the word misdemeanor may be used in a broader sense, regard it as limited to indictable offenses below the grade of felony. 24    

Minor offenses triable summarily by a magistrate without a jury have been deemed to be distinct from misdemeanors 25  and to constitute a separate class of offenses, below the grade of misdemeanor. 26

Federal law creates three grades of offenses. 27    While designating the third grade as "petty" offenses, the term "misdemeanor" is applied to both the lower grades. 28    

Careless driving is a noncriminal violation, not punishable by incarceration, and the trial court erred in sentencing defendant, who had also been charged with other offenses, to "time served" for careless driving. Olsen v State (1984, Fla App D2) 452 So 2d 147.

Footnote 18. State v Kelly, 218 Minn 247, 15 NW2d 554.

Footnote 19. State v Kelly, 218 Minn 247, 15 NW2d 554.

Footnote 20. Re Application of Westenberg, 167 Cal 309, 139 P 674.

Footnote 21. State v Knapp, 6 Conn 415 (holding that obstructing a highway is not within the meaning of the phrase).

Footnote 22.  § 29, supra.

Footnote 23. Re Application of Westenberg, 167 Cal 309, 139 P 674; State v Kelly, 218 Minn 247, 15 NW2d 554; State v O'Shields, 163 SC 408, 161 SE 692.

Footnote 24. Commonwealth v Cano, 389 Pa 639, 133 A2d 800, cert den and app dismd  355 US 182,  2 L Ed 2d 186,  78 S Ct 267.

Footnote 25. People v Grogran, 260 NY 138, 183 NE 273 (disorderly conduct, breach of the peace, etc.).

Footnote 26. People ex rel. Cooley v Wilder, 234 App Div 256, 255 NYS 218.

Footnote 27. 18 USCS §  1(1)-(3).

Footnote 28. 18 USCS §  1(2)(3).

Annotation:  40 ALR Fed 876 (right to jury trial for offense punishable by fine exceeding $500 as affected by definition of petty offenses in 18 USCS §  1(3)).

Where maximum jail term possible exceeded six months but not more than one year, offenses charged were minor in contrast to petty offenses and the defendants were constitutionally entitled to a jury trial if they chose to be tried in a district court. United States v Marcyes (CA9, Wash) 557 F2d 1361.

E.  Particular Acts or Omissions as Punishable Offenses [31-36]

Statutes making criminal the accused's reputation in connection with certain kinds of activities or violations are generally held to be invalid as a deprivation of liberty without due process of law in violation of federal and state constitutional guarantees. 29  Likewise, statutes punishing a person's mere association with others known or reputed to have a certain bad character have been held unconstitutionally violative of personal liberty. 30 

Footnote 29. A statute making subject to conviction as vagabonds all persons reputed to be habitual violators of the criminal laws of the state or United States or habitually to carry specified weapons or to act as associates, companions, or bodyguards of persons reputed to be habitual violators of the criminal laws operates to deprive such persons of their liberty without due process of law in violation of the federal and state constitutions.  People v Belcastro, 356 Ill 144, 190 NE 301.

Footnote 30. Ex parte Smith, 135 Mo 223, 36 SW 628 (association with persons having reputation of being thieves or the like with intent to agree to commit any offense); Watertown v Christnacht, 39 SD 290, 164 NW 62 (male person associating with known or reputed prostitute).

For a discussion of the constitutionality of statutes making it a crime to keep, frequent, or to be an inmate of premises reputedly used for designated unlawful purposes, see 24 Am Jur 2d,  Disorderly Houses § 11.

Corporation involved in petroleum transport and its district manager were properly charged with second-degree falsifying business records where People established that defendants knowingly and with intent to defraud misrepresented on designated shipping documents destination of 4 separate shipments of waste; however, charges were properly dismissed against corporation's operations manager where there was no evidence that he was responsible for false entries. People v Roth (1991, 4th Dept)  176 AD2d 1186, 576 NYS2d 968, app gr  79 NY2d 925, 582 NYS2d 83, 590 NE2d 1211 and mod on other grounds  80 NY2d 239, 590 NYS2d 30, 604 NE2d 92, 15 BNA OSHC 1977, 1992 CCH OSHD ¶ 29876.

Indictment charging police officer with first-degree falsification of business records for allegedly falsifying police records would not be dismissed on ground that People failed to present evidence to grand jury that defendant had intent to deprive "another person" of any property or right since defrauded entity need not be person as opposed to business entity. People v Schrag (1990)  147 Misc 2d 517, 558 NYS2d 451.

In connection with indictment for first-degree falsification of business records, no requirement would be imposed that grand jury presentation establish commercial or property loss. People v Schrag (1990)  147 Misc 2d 517, 558 NYS2d 451.

Evidence that corporate owner and managers of petroleum transport operation allowed tank containing petroleum products to be cleaned without adequate ventilation and in presence of numerous sources of ignition was sufficient to support charge of second-degree reckless endangerment, even though defendants could not foresee manner in which injury occurred to their employee, since statute requires only that defendant be "aware of and consciously disregard a substantial and unjustifiable risk." People v Roth (1992)  80 NY2d 239, 590 NYS2d 30, 604 NE2d 92, 15 BNA OSHC 1977, 1992 CCH OSHD ¶ 29876.

Conviction would be reversed where defendant was charged with reckless endangerment in first-degree in violation of CLS Penal  120.25 and entered plea of guilty to criminal mischief in third-degree in violation of CLS Penal §  145.05 in satisfaction of indictment, since criminal mischief in third-degree was not lesser included offense of reckless endangerment in first-degree. People v Sicurella (1989, 4th Dept)  149 AD2d 983, 543 NYS2d 352.

Evidence was sufficient to establish that defendant recklessly engaged in conduct which not only evinced depraved indifference to human life, but also created grave risk of death in another person, and thus supported conviction of first-degree reckless endangerment, where victim intervened in fight between defendant and another individual in front of victim's store, defendant slapped or punched victim and threatened him, defendant then got into his vehicle and attempted to strike victim with vehicle, injuring victim's hand, and defendant then drove vehicle directly into store where several people had assembled. People v Guerrero (1989, 2d Dept)  150 AD2d 489, 541 NYS2d 90.

In trial for first-degree reckless endangerment arising from incident in which shotgun was fired in direction of teenagers on street corner, evidence was sufficient to prove that defendant was shooter, and that he had acted with depraved indifference to human life, where shotgun shell was found in defendant's pocket when he was arrested shortly after incident and witness testified (1) that he knew defendant and saw him with shotgun in front of church where party was being held, (2) that defendant was only person at scene that he saw with firearm, (3) that defendant made threatening remark, and witness and his friends followed or chased defendant and his friend down street, (4) that 2 groups stationed themselves on opposite corners of intersection, (5) that shots were fired and witness ran for cover, (6) that witness did not see shots fired, but saw defendant with shotgun immediately prior to shooting, and (7) that shots shattered car windshield and store window. People v Millan (1989, 2d Dept)  155 AD2d 621, 548 NYS2d 43, app den  75 NY2d 815, 552 NYS2d 565, 551 NE2d 1243.

Evidence failed to establish defendant's guilt, either as principal or accomplice, of first-degree reckless endangerment where (1) police tried to stop care in which defendant was passenger, but car sped away, (2) during chase, shots were fired from driver's and passenger's windows, but witnesses could not identify shooter, (3) during chase, one of 3 occupants of car tumbled from back of car holding gun, which flew from his hand and landed under parked vehicle, (4) when car stopped, defendant and third occupant exited from driver's side, and defendant went into crouched position with gun in hand, and (5) when police fired at the, defendant and other man fled; since no shots were fired at time defendant took combative stance, his conduct did not create grave risk of death to another person, and there was no evidence that he solicited or intentionally aided his companions in crime. People v Smith (1989, 2d Dept)  155 AD2d 704.

Defendant was not entitled to jury charge on first-degree reckless endangerment, as lesser included offense of second-degree attempted murder and first-degree assault, where victim was found in lobby bleeding profusely from head wound, officers followed trail of blood to defendant's second floor apartment, upon inquiry defendant immediately remarked "let me tell you why I cut him. I was going to kill the motherfucker," and expert witness testified as to seriousness of victim's injuries and risk of death therefrom. People v Herring (1992, 1st Dept)  179 AD2d 549, 578 NYS2d 205, app den  79 NY2d 948, 583 NYS2d 202, 592 NE2d 810.

Evidence supported conviction for first-degree reckless endangerment and second-degree weapon possession arising out of incident in which shots were fired into apartment building, although in-court identification by prostitutes at whom defendant was allegedly angry was equivocal, where defendant's car was observed near apartment in question just before shots were fired, his wife testified that he had obtained handgun from their residence and was "crazed" immediately prior to shooting, and he was observed later that day driving in same area and yelling threats to prostitutes. People v Main (1992, 3d Dept)  179 AD2d 953, 579 NYS2d 758, app den  80 NY2d 834, 587 NYS2d 919, 600 NE2d 646.

Sufficient evidence supported conviction of first-degree reckless endangerment where defendant drove to home of former girlfriend, he pulled out 2 guns, and fired shots (1) in direction of street where group of at least 5 people were standing, (2) at girlfriend's uncle, and (3) at one of her neighbors, thus establishing depraved indifference to human life. People v Robinson (1992, 2d Dept)  180 AD2d 767, 580 NYS2d 80, app den  79 NY2d 1006, 584 NYS2d 461, 594 NE2d 955.

Evidence that juvenile stabbed victim with pocketknife was sufficient to establish that he recklessly engaged in conduct creating substantial risk of physical injury, and thus committed acts which would have constituted second-degree reckless endangerment if committed by adult; fact that victim suffered only minor injury was irrelevant, since it is "substantial risk" of serious physical injury that is critical under CLS Penal §  120.20, not actual injury. Re Louis Q. (1992, 2d Dept)  180 AD2d 800, 580 NYS2d 437.

Despite the general rule that a crime requires a prohibited act or omission, 31   certain atypical offenses, of which vagrancy 32   is perhaps the most familiar, are predicated essentially on one's status, condition, or mode of life. 33  In such instances, the offender is punished not for doing a certain overt act, but for being a certain kind of person, as, for example, a common thief 34  or a lewd and lascivious person. 35  In such instances the offense, even when complete, continues as a practical matter until the offender reforms. 36   And some crimes consist of the continuance over a period of time of a prohibited condition as, for instance, living in adultery or fornication. 37 

Practice Aids: Green, Griswold's Legacy: Fornication and Adultery as Crimes. 16 Ohio No U LR 545, 1989.

Footnote 31.  § 4, supra.

Footnote 32. As to nature and purpose of vagrancy laws, see 77 Am Jur 2d,  Vagrancy § 2.

Footnote 33. State v Cherry, 224 Md 144, 167 A2d 328.

Footnote 34. State v Cherry, 224 Md 144, 167 A2d 328.

Footnote 35. Commonwealth v O'Brien, 179 Mass 533, 61 NE 213.

Footnote 36. People v Craig, 152 Cal 42, 91 P 997.

Footnote 37. See 2 Am Jur 2d,  Adultery and Fornication §§ 9-12.

Courts have recognized or indicated that it may be constitutionally objectionable for a state to punish a status or condition that is nonvolitional. 38   In this connection, punishment of drunkenness on the part of an alleged chronic alcoholic, at least under certain circumstances, has been deemed not to be a constitutionally barred punishment of a disease or status. 39   Nevertheless, some courts have recognized that in certain situations it is cruel and unusual punishment within the purport of the Eighth Amendment of the United States Constitution, and therefore a violation of due process, to punish a person suffering from the alleged disease or condition of alcoholism for being intoxicated at a particular time or place. 40     

Practice Aids: Restricting the Limits of a Terry Patdown Search. 61 Den LJ 286, 1984.

Neither a state statute providing that a peace officer may release a person arrested without warrant if the person is arrested only for intoxication and no further proceedings are desirable), nor a special order adopted by a city police department pursuant to such a statute, and authorizing the release of arrestees under the statutory provision making public drunkenness a disorderly conduct offense, is unconstitutionally vague, since neither is a statute prohibiting criminal conduct. Further, these provisions do not represent an impermissible delegation of basic policy matters to policemen, judges, and juries. It does not appear that either infringes on a constitutionally protected activity or chills the exercise of rights under U.S. Const., 1st Amend. Sundance v Municipal Court (1986) 42 Cal 3d 1101, 232 Cal Rptr 814, 729 P2d 80.

Footnote 38. Robinson v California,  370 US 660,  8 L Ed 2d 758,  82 S Ct 1417, reh den  371 US 905,  9 L Ed 2d 166,  83 S Ct 202 (imprisonment merely for being a narcotic addict held cruel and unusual punishment).

Footnote 39. Vick v State (Alaska), 453 P2d 342; Burger v State, 118 Ga App 328, 163 SE2d 333; People v Hoy, 380 Mich 597, 158 NW2d 436; Seattle v Hill, 72 Wash 2d 786, 435 P2d 692, cert den  393 US 872,  21 L Ed 2d 142,  89 S Ct 163.

Annotation:  40 ALR3d 321, § 9.

See Powell v Texas,  392 US 514,  20 L Ed 2d 1254,  88 S Ct 2145, where the Supreme Court failed to hold that chronic alcoholism was a disease and that drunkenness by a chronic alcoholic was not constitutionally punishable; affirmance of conviction under a statute making drunkenness in public a crime was without a majority opinion, eight Justices apparently split even on the issue of whether chronic alcoholism was or was not a disease, of which drunkenness was a symptom, punishment of which would constitute cruel and unusual punishment within the meaning of the Federal Constitution; the decisive concurring opinion did not address the Constitutional question, taking the position that there was a lack of evidence to bring such issue into play.

Footnote 40. Driver v Hinnant (CA4 NC) 356 F2d 761.

But see Rakes v Coleman (ED Va) 359 F Supp 370 (wherein the court concludes that Driver v Hinnant (CA4 NC) 356 F2d 761, turned in essence upon the concept of mens rea specifically rejected in Powell v Texas,  392 US 514,  20 L Ed 2d 1254,  88 S Ct 2145, and is thereby overruled).

Annotation:  40 ALR3d 321, § 9.

Chronic alcoholism is a disease and not a crime, and thus to jail an accused, charged as an habitual alcoholic offender under a city ordinance, constituted cruel and unusual punishment in contravention of both state and federal constitutions.  Dayton v Sutherland, 42 Ohio Misc 35, 71 Ohio Ops 2d 313, 328 NE2d 416.

In Easter v District of Columbia, 124 App DC 33, 361 F2d 50, the court adopted, as one of its reasons for holding that chronic alcoholism was a defense to a charge of public intoxication, the proposition that to convict such a person of such crime would offend the Eighth Amendment; in so holding, the court, after finding that the defendant's status as a chronic alcoholic was indisputable, adopted the position that under the various definitions by learned associations and experts in the field, chronic alcoholism is a disease and that a chronic alcoholic is, in fact, a sick person who has lost control over his use of alcoholic beverages, the court reasoning that the punishment of a chronic alcoholic for mere public intoxication was equivalent to punishing such person for displaying the symptoms of a disease or status over which he had no control.

At common law every man is bound, under pain of punishment, to make himself an informer as to any treason or felony that he may have witnessed or that came to his knowledge. 41   An accused person's failure to give information as to such a crime makes him guilty of the offense unless he gave such countenance or aid as to make him a principal or an accessory before or after the fact. 42   It has been said that misprision may consist of criminal neglect to prevent a felony from being committed. 43  The act is recognized as a specific offense in some jurisdictions 44  but not in others. 45    Moreover, even in jurisdictions where it is recognized expressly or by implication the offense does not ordinarily consist merely of neglect to disclose the facts; the neglect must be prompted by some evil motive respecting the administration of justice. 46

Footnote 41. Commonwealth v Lopes, 318 Mass 453, 61 NE2d 849.

As to misprision of treason, see 70 Am Jur 2d,  Sedition, Subversive Activities, and Treason § 45.

Practice Aids: –Goldberg, Misprision of Felony:  An Old Concept in New Context. 1966, 52 ABA J 148.

Footnote 42. Commonwealth v Lopes, 318 Mass 453, 61 NE2d 849.

Misprision is distinct from the more serious offense of accessory after the fact; the latter requires active assistance of the felon, whereas misprision consistes merely of knowledge that a felony has been committed and failure to disclose the facts to the proper authorities.  Sykes v Director of Public Prosecutions, 3 All Eng 33 (HL).

Footnote 43. State v Wilson, 80 Vt 249, 67 A 533.

Footnote 44. Commonwealth v Lopes, 318 Mass 453, 61 NE2d 849; State v Flynn, 100 RI 520, 217 A2d 432; State v Wilson, 80 Vt 249, 67 A 533; holding that where the common-law offense is recognized, it has been held not impliedly abolished merely because the statute deals with misprision of treason, without mentioning misprision of felony.

Footnote 45. Holland v State (Fla App D2) 302 So 2d 806.

Statutes punishing the positive commission of something which should not be done, such as receiving, harboring, or concealing the guilty person indicate that the legislature did not desire to preserve the mere negative offense of misprision, as it existed under the English law.  Heath v State, 160 Ga 678, 128 SE 913.

Misprision of felony is not a chargeable offense in Maryland; there is no legislative enactment declarative of the common law of misprison of felony or which may be deemed to have created a comparable offense; the common-law crime is not now compatible with local circumstances and situations and general code of laws and jurisprudence, and maintenance of law and order does not demand its application, nor would the welfare of inhabitants of Maryland and society be served by it.  Pope v State, 284 Md 309, 396 A2d 1054,  1 ALR4th 1.

The common-law offense of misprision of felony is not preserved merely by a state constitutional provision stating that the common law, if not repugnant to the constitution, remains in force except as altered by statute. People v Lefkovitz, 294 Mich 263, 293 NW 642.

Footnote 46. Commonwealth v Lopes, 318 Mass 453, 61 NE2d 849; State v Wilson, 80 Vt 249, 67 A 533.

Misprision of a felony is made a federal crime by statute. 47    The offense requires, in addition to failure to disclose, some positive act of concealment, 48  such as untruthful statements, 49  suppression of evidence, harboring of the criminal, intimidation of witnesses, or other positive act designed to conceal from the authorities the fact that a crime has been committed. 50   It must ordinarily appear that the principal committed and completed the felony alleged, that the defendant had full knowledge of such fact, that the defendant failed to notify authorities, and that he took affirmative steps to conceal the crime. 51  Thus, mere silence or failure to inform law enforcement authorities is not, of itself, sufficient to constitute an offense. 52   Consideration received in return for concealment of or failure to disclose the facts in question is not an element of misprision under the federal statute. 53   Nor is it necessary that the act of the accused provide any degree of maintenance to the felon. 54   Misprision is held not to have committed where the principal offender did not commit the felony in question 55   or where the offense committed was merely a misdemeanor. 56  Nor is the statute applicable where, although the conduct of the accused may have served incidentally to cloak the commission of a felony, such conduct was in and of itself chargeable as a separate offense. 57  

Although District Court did not establish factual basis for defendant's guilty plea to misprision of felony in full compliance with rule, failure was harmless where plea hearing record clearly established defendant's knowledge of felony and failure to notify authorities of it, and although District Court failed to discuss with defendant any specifics regarding third element of affirmative concealment, other sources of factual information provided adequate factual basis to support defendant's plea. United States v Adams (1992, CA5 Tex) 961 F2d 505.

Girlfriend of drug dealer committed affirmative act of concealment necessary to establish misprision of felony, where presentence report indicated that she had made cash payments on house which dealer had purchased in another's name and transferred to hers, since she knew that it was purchased with drug proceeds, for purpose of concealing them. United States v Adams (1992, CA5 Tax) 961 F2d 505.

Indictment for misprision of felony in violation of 18 USCS §  4 may unconstitutionally infringe upon defendants' Fifth Amendment privilege where at time defendant's duty to notify authorities arose, defendant was engaged in criminal offense of concealing his own person from arrest. United States v Graham (1980, WD Ky) 487 F Supp 1317.

Defendant, who made truthful, though partial, disclosure to Secret Service of information about counterfeiting operation, but who withheld other information because Secret Service agent would not pay him for it did not take affirmative step to conceal crime, and thus his actions did not constitute misprision of felony. United States v Ciambrone (1984, CA9 Nev) 750 F2d 1416.

Evidence that defendant obtained false identity documentation for alleged assassin is sufficient to allow jury to conclude that he intended to help assassin conceal his identity and flee to foreign nations to escape arrest for his participation in murders and conspiracy. United States v Sampol (1980, App DC) 636 F2d 621.

Footnote 47. 18 USCS §  4.

Footnote 48. United States v Hodges (CA9 Or) 566 F2d 674; United States v Johnson (CA5 Tex) 546 F2d 1225; United States v Daddano (CA7 Ill) 432 F2d 1119, cert dismd  401 US 967,  28 L Ed 2d 250,  91 S Ct 990 and cert den  402 US 905,  28 L Ed 2d 645,  91 S Ct 1366 and cert den  402 US 905,  28 L Ed 2d 645,  91 S Ct 1367 and cert den  402 US 905,  28 L Ed 2d 645,  91 S Ct 1391; United States v Perlstein (CA3 NJ) 126 F2d 789, cert den  316 US 678,  86 L Ed 1752,  62 S Ct 1106; United States v Farrar (DC Mass) 38 F2d 515, affd  281 US 624,  74 L Ed 1078,  50 S Ct 425.

Misprision of felony conviction was supported by evidence that defendants intentionally concealed from federal investigating officers circumstances under which cases of whiskey had been removed surreptitiously from truck and replaced with sandbags, and that, after theft, defendants drove truck to another state where they reported that whiskey had been stolen, seeking to divert suspicion from thief, party known to them and with whom they had had contact.  United States v Stuard (CA6 Tenn) 566 F2d 1.

Defendant took affirmative action to conceal crime when he took family as camouflage to fact that he was taking robbers to place where duffle bag with clothing, guns and money had been stashed and, after bag and contents had been retrieved, he returned to apartment where loot was divided.  United States v Gravitt (CA5 Ga) 590 F2d 123.

Evidence was sufficient to sustain conviction for 18 USCS §  4 where record clearly disclosed that defendant had at some point knowledge of kidnapping and made no attempt to notify authorities, but on contrary did, albeit reluctantly, aid and assist kidnappers in carrying on and concealing offense; while his intent remains issue for jury determination, undeniable facts supported conviction for misprision of felony.  United States v Benfield (CA8 Mo) 593 F2d 815.

Concealing the identity of the principal offender by registering him at a hotel under a fictitious name, and introducing him by such name, is an affirmative act of concealment.  United States v Thornton (DC NY) 178 F Supp 42.

Footnote 49. United States v Hodges (CA9 Or) 566 F2d 674.

Footnote 50. Bratton v United States (CA10 Okla) 73 F2d 795.

Footnote 51. United States v Hodges (CA9 Or) 566 F2d 674; United States v Stuard (CA6 Tenn) 566 F2d 1; Neal v United States (CA8 Minn) 102 F2d 643.

Advice of counsel may bear on whether individuals had "knowledge of actual commission of felony," and therefore due to nature of suspected crime such advice might be relevant to investigation being conducted by grand jury into possible violations of 18 USCS §  4 and properly within its jurisdiction; however, legal advice given or considered during ongoing litigation was protected from grand jury subpeona by work product doctrine subsequent to client's waiver of attorney-client privilege.  Re Grand Jury Investigation (ED Pa) 412 F Supp 943.

Footnote 52. Lancey v United States (CA9 Cal) 356 F2d 407, cert den  385 US 922,  17 L Ed 2d 145,  87 S Ct 234; Neal v United States (CA8 Minn) 102 F2d 643; United States v Farrar (DC Mass) 38 F2d 515, affd  281 US 624,  74 L Ed 1078,  50 S Ct 425,  68 ALR 892.

Essential element of offense of misprision of felony is concealment and mere failure to report felony is not sufficient to constitute violation under 18 USCS §  4, therefore, where record indicated only that defendant had failed to come forward and tell authorities of conversations which allegedly showed violation of Neutrality Act [22 USCS §  1934], record was insufficient to provide factual basis for guilty plea to charge of misprision of felony.  United States v Johnson (CA5 Tex) 546 F2d 1225.

Footnote 53. Bratton v United States (CA10 Okla) 73 F2d 795 (allegation of consideration in indictment is surplusage).

Footnote 54. United States v Perlstein (CA3 NJ) 126 F2d 789, cert den  316 US 678,  86 L Ed 1752,  62 S Ct 1106.

Footnote 55. United States v Brandenburg (CA3 NJ) 144 F2d 656,  154 ALR 1160.

Footnote 56. United States v Venturini (DC Ala) 1 F Supp 213.

Footnote 57. Misprision statute could not constitutionally be applied against defendants who knowingly possessed, received, and concealed proceeds of bank robbery after learning of felony since such conduct, which incidentally may have served to cloak commission of felony, was chargeable as violation of 18 USCS §  2113(c), and therefore duty imposed by 18 USCS §  4 to notify authorities was precluded by constitutional privilege against self-incrimination. United States v Kuh (CA7 Ill) 541 F2d 672.

A crime may take the form of failure to perform a required action, rather than the doing of a prohibited act. 58   On the other hand, conduct which is wholly passive, unaccompanied by any activity or any circumstances to alert the defendant to a duty to act, cannot constitutionally be punished where the defendant did not know of the duty and there is no proof of probability of such knowledge. 59   And one cannot be said in any manner to neglect or refuse to perform a duty unless he has knowledge of the condition of things which requires his performance. 60  Moreover, the knowledge of the facts on which the duty is predicated is generally essential to criminal responsibility, even where the duty is created by a statute which does not expressly so require. 61   But it has been held that a defendant is not exculpated by ignorance if he was charged with the special duty of being informed and the safety of others depended on his fulfilling that duty. 62

Practice Aids: Kleinig, Criminal Liability for Failures to Act. 49 Law & Contempt Prob 161, Summer, 1986.

Woozley, A Duty to Rescue: Some Thoughts on Criminal Liability. 69 Va LR 1273, October, 1983.

A seizure of a person made by a police officer acting outside his jurisdiction is permissible as the action of a private citizen where the officer does not use the color of his office to gain access to evidence not available to a private citizen; moreover, the "under color of office" doctrine does not prevent officers from making an otherwise valid citizen's arrest simply because they happen to be in uniform or otherwise clothed with indicia of their position when making the arrest; accordingly, in a prosecution for fraudulent use of a credit card, forgery, and defrauding an innkeeper, the fact that a municipal police officer may have identified himself as an officer when he stopped defendants' car did not prevent him from making a valid citizen's arrest. State v Tamburri (1985, FLa App D2) 463 So 2d 489, 10 FLW 366.

Footnote 58. United States v Spector,  343 US 169,  96 L Ed 863,  72 S Ct 591, reh den  343 US 951,  96 L Ed 1353,  72 S Ct 1040 (failure of alien to make timely application for travel and other documents necessary to departure).

Practice Aids: –Hughes, Criminal Omissions, 1958, 67 Yale LJ 590; Kirchheimer, Criminal Omissions, 1942, 55 Harvard L Rev 615.

Failure of motorist involved in accident to stop, identify self, and aid injured, as crime, see 7A Am Jur 2d,  Automobiles and Highway Traffic § 289.

Failure to file income tax return as crime, see 35 Am Jur 2d,  Federal Tax Enforcement §§ 113,  114.

As to homicide by failure to perform affirmative duty, see 40 Am Jur 2d,  Homicide §§ 88-90.

Footnote 59. Lambert v California,  355 US 225,  2 L Ed 2d 228,  78 S Ct 240, reh den  355 US 937,  2 L Ed 2d 419,  78 S Ct 410 (failure of person convicted of prior felony to register as required by municipal ordinance).

Footnote 60. Westrup v Commonwealth, 123 Ky 95, 93 SW 646.

Footnote 61. See, for example, 7A Am Jur 2d,  Automobiles and Highway Traffic § 290.

Footnote 62. State v Irvine, 126 La 434, 52 So 567.

A.  In General; Presumptions as to Capacity [37-39]

It has been said that the basic postulate of the criminal law is that of a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong. 63   Hence, mental capacity to commit a crime is deemed to be an essential requisite to criminal responsibility. 64  And even though an accused, on trial under a not guilty plea, is conclusively presumed to be capable of guilt, it is not presumed, conclusively or otherwise, that he had the specific mental state necessary to the particular offense charged. 65    

Defining criminal responsibility is deemed to be a matter for the legislature not a question of constitutional law, either state or federal. 66   And the various factors which may affect capacity to commit a crime often defined by statute. 67   Under such statutes there may be states of mind other than insanity which render a person incapable of committing crime, 68  such as, for example, idiocy. 69 

Practice Aids: Fitness to Stand Trial (Reviewed), 21 Bull Am Acad Psych'Law 547 (1994).

Note: Antipsychotic Drugs and the Incompetent Defendant: A Perspective on the Treatment and Prosecution of Incompetent Defendants. 47 Wash & Lee LR 1059, Fall, 1990.

Morris, Dealing Responsibly with the Criminally Irresponsible. Ariz St LJ 855, 1982.

Modern status of test of criminal responsibility–state cases;  9 ALR4th 526. superseding  45 ALR2d 1447.

Modern status of test of criminal responsibility–federal cases.  56 ALR Fed 326.

State statute placing on a criminal defendant the burden of proving his incompetence to stand trial by a preponderance of the evidence does not violate due process. Statutory "presumption of competence," being merely a restatement of the burden of proof, was also constitutional. Medina v California (1992, US)  120 L Ed 2d 353,  112 S Ct 2572, 92 CDOS 5292, 92 Daily Journal DAR 8412, reh den (US)  120 L Ed 2d 946.

Minor charged with possession of stolen property and assault was properly adjudged ward of the court upon finding of clear and convincing evidence that minor understood wrongfulness of his actions; requirement of proof beyond a reasonable doubt applied to elements of offense, and not to separate issue of capacity, which was subject to clear and convincing proof standard. In re Manuel L. (1992, 6th Dist) 11 Cal App 4th 529, 13 Cal Rptr 2d 845, 92 CDOS 9760, 92 Daily Journal DAR 16201, review gr (Cal) 17 Cal Rptr 2d 608, 847 P2d 574, 93 CDOS 1972, 93 Daily Journal DAR 3485 and reprinted for tracking pending review (6th Dist) 16 Cal App 4th 1209.

Defendant's irrational behavior at trial was insufficient to require inquiry into competency in aggravated trafficking case, where defendant insisted on wearing his orange prison jumpsuit for trial, answered a question concerning whether counsel was correct with the response, "More so, yes," and did not inform counsel of a potential alibi witness until several days before trial, because record simply does not demonstrate sufficient irrational behavior and (1) he stated that, facing a 5 to 25 year sentence, it did not matter what he wore to trial; (2) when court sought a response he corrected his "More so, yes" response with a simple "yes," and (3) informing counsel late of a potential witness was not so irrational as to require the court to inquire into competency. State v Draughn (1992, Muskingum Co) 76 Ohio App 3d 664, 602 NE2d 790.

Trial court properly determined that manslaughter defendant was competent to stand trial, where defendant's only claim to incompetency was that he had no memory of events at issue due to lifelong alcohol abuse. Siah v State (1992, Okla Crim) 837 P2d 485.

Footnote 63. Carter v United States, 102 App DC 227, 252 F2d 608.

Footnote 64. Smith v State (Miss) 220 So 2d 313, later app (Miss) 245 So 2d 583; State v Pinski (Mo) 163 SW2d 785.

Footnote 65. People v Wells, 33 Cal 2d 330, 202 P2d 53, cert den  338 US 836,  94 L Ed 510,  70 S Ct 43.

Footnote 66. Castro v People, 140 Colo 493, 346 P2d 1020.

Footnote 67. People v Wells, 33 Cal 2d 330, 202 P2d 53, cert den  338 US 836,  94 L Ed 510,  70 S Ct 43; Rogers v State, 128 Ga 67, 57 SE 227.

Footnote 68. People v Wells, 33 Cal 2d 330, 202 P2d 53, cert den  338 US 836,  94 L Ed 510,  70 S Ct 43.

Footnote 69.  § 40, infra.

At common law, infants under the age of 7 are conclusively presumed incapable of crime; those between 7 and 14 are rebuttably presumed incapable; and those 14 or over are presumptively capable. 70   The common-law rule is subject to revision by the legislature, 71  and, while some states have adopted the common-law rule, 72  the age of irresponsibility has been changed by statute in others. 73     

The common-law rule as to capacity to commit crime has been modified by statutes providing that offenders under a certain age must be proceeded against as juvenile delinquents, rather than by criminal prosecution. 74    However, while some statutes are held to change the law with respect to the age at which one has capacity to commit crime, others are regarded as affecting only the treatment and not the capacity of the offender. 75   Moreover, some statutes exclude particular offenses, or particular categories of offenses, insofar as infants are concerned. 76

In the absence of a statute to the contrary, infants who have reached the age of 14 are not entitled to a presumption of incapacity, 77  but are presumed capable of crime, 78  and are treated as adults insofar as criminal matters are concerned. 79    

Where a child is within the age span as to which incapacity to commit crime is rebuttably presumed, the burden is on the prosecution to show that he is capable of appreciating the nature of his acts. 80   That the minor is so capable must, in general, be clearly established, 81  although the strength of the presumption is held to vary with the actual age of the child 82  and to decrease as the upper limit is approached. 83    Proof that a child is of average capacity for his age does not rebut the presumption, 84  since it is founded on a judgment that average capacity for that age is insufficient to warrant criminal responsibility. 85  It must be shown that he understood the nature of the offense charged and its consequences. 86

Some courts regard knowledge that the act was wrong as insufficient and require an additional showing that an infant knew its nature and illegality, 87  or that it was in violation of law, 88   or that he showed design and malice in its execution. 89   Some cases suggest that the type of crime charged may make a difference.  For example, it has been held that a child under 14, even though he may know the difference between right and wrong, cannot be punished for a simple misdemeanor, without aggravating circumstances, where he did not know the act was against the law. 90  And it has been stated that an infant is responsible for crime except when the particular crime involves an element which is necessarily wanting in an infant. 91

Rebuttal of the presumed incapacity of a child need not be made by direct and positive testimony.  Evidence as to education, habits, general character, moral and religious instruction, or even at times the circumstances connected with the offense charged, may be sufficient to satisfy the jury. 92   And opinion testimony from persons well acquainted with the child has been held admissible. 93

Where, by the terms of a statute, a criminal offense can be committed only by persons over a prescribed age, and the requirement as to the accused's age is regarded as a material element of the offense, the burden is held to rest upon the state to prove the fact that the accused is of the requisite age. 94   However, where the requirement as to defendant's age is considered, in form, as a priviso or as an exception to the statute creating the offense, 95    rather than as a descriptive element of the crime, then it has been held incumbent upon the accused to prove his age, if he desires to avail himself of such affirmative defense. 96   A few courts have noted that the accused should have the burden to present evidence as to his age in these cases since his age is a fact peculiarly within his knowledge. 97 

Practice Aids: Osbun & Rode, Prosecuting Juveniles as Adults: The Quest for "Objective" Decisions. 2 Crimin 187, May, 1984.

Hoffmann, On the Perils of Line-Drawing: Juveniles and the Death Penalty. 40 Hast LJ 229, January, 1989.

Possibility of rehabilitation as affecting whether juvenile offender should be tried as adult. (See also 47 Am Jur 2d, Juvenile Courts and Delinquent and Dependent Children § 19.)  22 ALR4th 1162.

Modern status of test of criminal responsibility–state cases;  9 ALR4th 526. superseding  45 ALR2d 1447.

Defense of infancy in juvenile delinquency proceedings.  1 ALR4th 1135.

Statute protecting minors in a specified age range from rape or other sexual activity as applicable to defendant minor within protected age group  18 ALR Fed 856.

Under Missouri law, a 17-year-old is an adult for purposes of trial and conviction of capital murder and the imposition of a death sentence. Delo v Lashley (1993, US)  122 L Ed 2d 620,  113 S Ct 1222, 93 CDOS 1704, 93 Daily Journal DAR 3021, reh den (US)  123 L Ed 2d 665,  113 S Ct 1962.

Trial court erred in placing a 17-year-old who was charged with carrying a concealed weapon on community control because the court failed to comply with FS § 39.059(7)(c) which required the court to determine the juvenile's suitability or nonsuitability for adult sanctions; the record in the matter did not satisfy the requirements of the statute. ILes v State (1992, Fla App D2) 602 So 2d 999, 17 FLW D 1956.

Before a child may act without a proper regard for human life in the context of an unlawful homicide, he must fully appreciate the consequence of taking a life. He must appreciate the permanence of death. Thus, in a juvenile proceeding in which the court found that a nine-year-old boy committed involuntary manslaughter (Pen, Code, § 192, subd. 2), the minor's appreciation of the wrongfulness of the act charged against him could not be inferred from the mere commission of the act itself; this would frustrate the purpose of Pen. Code, § 26, subd. 1, which declares children under the age of 14 incapable of committing crimes in the absence of clear proof of knowledge of the wrongfulness of the act charged at the time of committing it. In re Michael B. (1983, 5th Dist) 149 Cal App 3d 1073, 197 Cal Rptr 379.

Trial court did not err in treating a juvenile who pled nolo contendere to charges of false imprisonment and grand theft as an adult because the court considered all 6 of the enumerated criteria pursuant to FS § 39.059(7)(c) when reasoning why this defendant should be treated as an adult; the fact that the criteria were not addressed in the express language of the statute did not require reversal because a reading of the judge's order along with the sentencing transcript shows that the judge considered all the necessary factors. Troutman v State (1992, Fla App D1) 603 So 2d 608, 17 FLW D 1851, review gr (Fla) 1993 Fla LEXIS 253.

Defendant's convictions for second and third-degree criminal possession of weapon were nullities and would be dismissed since defendant was 15 years old at time of offenses charged and could not be held criminally liable therefor. People v McDermott (1992, 2d Dept)  179 AD2d 685, 579 NYS2d 903, app den  79 NY2d 950, 583 NYS2d 204, 592 NE2d 812.

While a juvenile can waive his right to findings under FS §§ 39.059(7)(c)(1)-(6) before being sentenced as an adult, it was reversible error for the trial court to impose adult sanctions on a juvenile without making the required findings, where the sanctions were imposed pursuant to a negotiated plea agreement which did not mention accused's status as a juvenile and juvenile did not object to or appeal the sentence until the incarcerative portion was imposed following his violation of community control. Veach v Appellee (1993, Fla App D1) 614 So 2d 680, 18 FLW D 637.

Defendant convicted of attempted murder, armed robbery and battery was properly tried as adult, where offense occurred at 1 a.m., November 22, and defendant had been born 17 years previously on November 22 at 8:45 a.m.. People v Anderson (1982) 108 Ill App 3d 563, 64 Ill Dec 136, 439 NE2d 65.

Trial court erred in not including written findings of fact as to each of 6 statutory criteria for imposing adult sanctions, where juvenile was convicted as adult of burglary of occupied structure, burglary of conveyance, and grand theft, because court must make written findings of fact that show court considered all 6 criteria of § 39.111(7)(c) and failure to do so is reversible error. Kelly v State (1992, Fla App D5) 605 So 2d 990, 17 FLW D 2315.

Double jeopardy clause bars reconsideration of dismissal order against 11-year old defendant accused of theft where judge granted dismissal based upon finding that defendant was presumed incapable of commiting crime and state had not presented sufficient evidence to overcome that presumption. Re Dowling (1983, Wash) 656 P2d 497.

Petitioner was not required to make showing of entitlement to evidentiary hearing to determine, post hoc, whether he would have been certified as adult in proceeding used to enhance sentence under challenge since he was tried as adult under statutory scheme that denied him equal protection by impermissibly discriminating between male and female juveniles, and in post-hoc certification determinations burdens of proof and persuasion rest on state. Kelley v Kaiser (1993, CA10 Okla) 993 F2d 1509.

Footnote 70. Allen v United States,  150 US 551,  37 L Ed 1179,  14 S Ct 196; McDonald v Spring Valley, 285 Ill 52, 120 NE 476; Heilman v Commonwealth, 84 Ky 457, 1 SW 731; State v Monahan, 15 NJ 34, 104 A2d 21,  48 ALR2d 641; State v Rogers, 275 NC 411, 168 SE2d 345, cert den  396 US 1024,  24 L Ed 2d 518,  90 S Ct 599.

Practice Aids: – 7 Am Jur Trials 477 (infancy as affecting capacity to commit homicide) § 89.

Footnote 71. Wheeler v Shoemake, 213 Miss 374, 57 So 2d 267.

Footnote 72. State v Fisk, 15 ND 589, 108 NW 485; State v Terrell, 55 Utah 314, 186 P 108.

Footnote 73. Allen v United States,  150 US 551,  37 L Ed 1179,  14 S Ct 196; Angelo v People, 96 Ill 209 (age of conclusive incapacity raised to 10); State v Dehler, 257 Minn 549, 102 NW2d 696,  89 ALR2d 496 (persons 12 years of age or over presumed responsible).

Footnote 74. C. v State (Fla App D3) 332 So 2d 134, holding that the common law presumption that a child between the ages of 7 and 14 is incapable of committing a crime does not apply to juvenile delinquency proceedings, that proof of the capacity to commit a crime is not an essential requirement for an adjudication of delinquency, and that the presumption was created as a safeguard in the criminal trial of juveniles in adult courts and should not be transposed to juvenile delinquency proceedings which by their very nature are designed to aid juveniles.

The common-law presumption that a minor between the ages of 7 and 14 years is rebuttably presumed incapable of committing a crime is inapplicable to family court proceedings since state law proscribes criminal convictions in such courts.  Re Skinner, 272 SC 135, 249 SE2d 746.

For effect of statutory modifications relating to treatment of infant offenders as juvenile delinquents generally, see 47 Am Jur 2d,  Juvenile Courts and Delinquent and Dependent Children § 8 et seq.

Footnote 75. Burrows v State, 38 Ariz 99, 297 P 1029, (disapproved on other grounds State v Hernandez, 83 Ariz 279, 320 P2d 467).

Footnote 76. State v Lefante, 12 NJ 505, 97 A2d 472; State ex rel. Cain v Skeen, 137 W Va 806, 74 SE2d 413.

Footnote 77. Allen v United States,  150 US 551,  37 L Ed 1179,  14 S Ct 196.

Footnote 78. Cochran v Peeler, 209 Miss 394, 47 So 2d 806.

Footnote 79. Clay v State, 143 Fla 204, 196 So 462 (holding that defendants could be convicted and executed for murder committed at age 14); Commonwealth v Zietz, 364 Pa 294, 72 A2d 282; Colley v State, 179 Tenn 651, 169 SW2d 848, cert den  320 US 766,  88 L Ed 457,  64 S Ct 71.

The defendant, a juvenile of unspecified age, was properly indicted as an adult for the offense of armed robbery, a felony punishable by imprisonment "for a term of years not exceeding life in prisonment," under a statute allowing indictment of a child of "any age, as an adult, for crimes punishable by death or life imprisonment."  Ringel v State (Fla App D4) 352 So 2d 88, affd (Fla) 366 So 2d 758.

Where an act is denounced as a crime, even of the grade of treason or felony, by general statute, it extends as well to infants, if above 14, as to others.  People v Kendall, 25 Wend (NY) 399 (upholding a conviction of obtaining goods by false pretenses where defendant obtained credit by falsely representing himself as a property owner and defeated action for price by pleading infancy).

An infant of nearly 21 may be convicted of obtaining money by the false pretense that he was of age and capable of giving a valid deed.  Commonwealth v Ferguson, 135 Ky 32, 121 SW 967.

Footnote 80. Juvenile Court of Shelby County v State, 139 Tenn 549, 201 SW 771.

Footnote 81. Garner v State, 97 Ark 63, 132 SW 1010; People v Wells, 33 Cal 2d 330, 202 P2d 53, cert den  338 US 836,  94 L Ed 510,  70 S Ct 43 (by statute); State v Terrell, 55 Utah 314, 186 P 108,  25 ALR 497 (by statute).

Footnote 82. A showing that a child of 11 is capable of crime requires evidence strong and clear beyond all doubt and contradiction.  Angelo v People, 96 Ill 209.

Footnote 83. Martin v State, 90 Ala 602, 8 So 858, (ovrld on other grounds Williams v State, 140 Ala 10, 37 So 228).

Since the strength of the presumption of an infant's incapacity to commit a crime decreases with the increase in the infant's age, the quantum of proof necessary to overcome the presumption diminishes in substantially the same ratio.  Adams v State, 8 Md App 684, 262 A2d 69, cert den  400 US 928,  27 L Ed 2d 188,  91 S Ct 193.

Footnote 84. Carr v State, 24 Tex App 562, 7 SW 328.

Footnote 85. Law v Commonwealth, 75 Va 885.

Footnote 86. Garner v State, 97 Ark 63, 132 SW 1010.

Footnote 87. Carr v State, 24 Tex App 562, 7 SW 328.

Footnote 88. O'Brien v Fred Kroner Hardware Co.,  175 Wis 238, 185 NW 205.

Footnote 89. State v Vineyard, 81 W Va 98, 93 SE 1034.

Footnote 90. State v Yeargan, 117 NC 706, 23 SE 153 (betting on dice).

Footnote 91. Lacey v Laird, 166 Ohio St 12, 1 Ohio Ops 2d 158, 139 NE2d 25.

Footnote 92. Carr v State, 24 Tex App 562, 7 SW 328.

Footnote 93. Martin v State, 90 Ala 602, 8 So 858 (ovrld on other grounds Williams v State 140 Ala 10, 37 So 228); Carr v State, 24 Tex App 562, 7 SW 328.

Footnote 94. Fore v State, 35 Ala App 289, 46 So 2d 245; People v Montalvo, 4 Cal 3d 328, 93 Cal Rptr 581, 482 P2d 205,  49 ALR3d 518; Raullerson v People, 157 Colo 462, 404 P2d 149; People v Boston 52 Ill App 3d 18, 9 Ill Dec 949, 367 NE2d 383; Watson v State, 236 Ind 329, 140 NE2d 109; State v West, 197 Iowa 789, 198 NW 103; Lair v Commonwealth (Ky) 330 SW2d 938; Re Appeal No. 267 (77) from Dist. Court, 38 Md App 224, 380 A2d 239; Love v State, 211 Miss 606, 52 So 2d 470; State v Lauritsen, 199 Neb 816, 261 NW2d 755; State v Lasowski, 4 NJ Misc 489, 133 A 415; State v Gray, 292 NC 270, 233 SE2d 905; Rich v State (Okla Crim) 266 P2d 476; Commonwealth v San Juan, 129 Pa Super 179, 195 A 433; Brooks v State (Tex Crim) 435 SW2d 523; Bridges v State,  247 Wis 350, 19 NW2d 529, reh den  247 Wis 374, 19 NW2d 862.

This rule and reasoning has been applied to prosecutions for statutory rape, child molesting and indecent liberties, aggravated assault, betting with a minor, furnishing narcotics to a minor, and other miscellaneous offenses.  Annotation:   49 ALR3d 526, § 3[a-d].

Footnote 95. See 29 Am Jur 2d,  Evidence § 154; and as to exceptions and provisos in statutes generally, see 73 Am Jur 2d,  Statutes §§ 312 et seq.

Footnote 96. People v Ventura, 415 Ill 587, 114 NE2d 710; People v Wilson, 131 Ill App 2d 731, 264 NE2d 492; State v Rowe (Me) 238 A2d 217; State v Davis, 141 Mont 197, 376 P2d 727; Thomas v Sheriff, Clark County, 89 Nev 17, 504 P2d 1313 (apparently so holding); State v Lefante, 12 NJ 505, 97 A2d 472; State v Courtney, 248 NC 447, 103 SE2d 861; Brown v State (Okla Crim) 435 P2d 173; State v Cole, 244 Or 455, 418 P2d 844; State v Brewer, 163 Tenn 215, 42 SW2d 344; State v Sullivan, 68 Vt 540, 35 A 479.

Such rule and reasoning has been applied to statutes creating offenses such as forcible rape, statutory rape, and lewd and lascivious acts upon a child, as well as embezzlement.  Annotation:  49 ALR3d 526, § 4[a-d].

Footnote 97. State v Rowe (Me) 238 A2d 217; State v Lefante, 12 NJ 505, 97 A2d 472; State v Blackley, 138 NC 620, 50 SE 310; Lambeth v State (1877, Tenn) 3 Shannon Cas 754.

One court pointed out that the distinction which had existed in Illinois for many years, that defendant was required to prove he was underage in forcible rape cases, but not in statutory rape cases, had not been altered by a later criminal code.  People v Wilson, 131 Ill App 2d 731, 264 NE2d 492.

Annotation:  49 ALR3d 526, § 5

III.  THE MENTAL ELEMENT IN CRIME [129-157]

A.  In General [129-136]

At common law, a crime required two elements:  an act and an evil intention. 1   This view is expressed in the maxim that an act does not render one guilty unless the mind is guilty. 2   Thus, one who actually participates in a criminal act may not be guilty if he did so only for the purpose of detecting and apprehending the offender. 3   This principle that only conscious wrongdoing constitutes crime is deeply routed in our legal system and remains the rule, rather than the exception, even though there are some categories of modern statutory offenses to which it is not applied. 4   The factor of guilty mind is sometimes called "mens rea," 5   but it has been pointed out that mens rea does not refer to any one state of mind, but to many different ones for many different offenses. 6   In some jurisdictions, crime is defined by statute as a violation of public law in which there is a union or joint operation of act and intention, or criminal negligence. 7

Where the offense is one which requires a general criminal intent, but not a specific intent, a guilty intention may sometimes be inferred from the act, but this in principle is an inference of fact to be drawn by the jury, and not an implication of law to be applied by the court. 8   And the inference may be removed by the attending circumstances. 9

It is sometimes said that intent is a constituent element of all criminal acts. 10  However, this statement uses the word "intent" in a way which does not necessarily connote conscious wrongdoing.  Though some guilty state of mind is part of the definition of most offenses, especially the more serious offenses, there are instances in which the law categorically forbids a certain act without regard to the state of mind which may accompany it. 11  Where this is the case, the intent to do that act is the only element necessary to complete the offense. 12    

The criminal intent necessary to the commission of a particular offense must exist at the time of the act.  No subsequent intent can supply it. 13   And it cannot be imputed to the party from a subsequent independent transaction. 14  

Practice Aids: Stern, Consciousness of Wrongdoing: Mens Rea in Alaska. 1 Alaska LR 1, Summer, 1984.

Bakker, The Defense of Obedience to Superior Orders: The Mens Rea Requirement. 17 Am J Crim L 55, Fall, 1989.

Death at first bite: a mens rea approach in determining criminal liability for intentional HIV transmission, 35 Ariz LR 237 (1993).

Singer, The Resurgence of Mens Rea: I–Provocation, Emotional Disturbance, and the Model Penal Code. 27 Bos C LR 243, March, 1986.

Eisenberg and Johnson, the Effects of Intent: Do We Know How Legal Standards Work? 76 Cor LR 1151, Sept, 1991.

Sendor, Crime as Communication: An Interpreted Theory of the Insanity Defense and the Mental Elements of Crime. 74 Geo LJ 1371, June, 1986.

Huckabee, Evidence of Mental Disorder on Men's Rea: Constitutionality of Drawing the Line at the Insanity Defense. 16 Pepp LR 573, 1989.

To determine as a threshold matter whether a particular statute defines a public welfare offense, that is, an offense under which the United States Supreme Court has understood Congress to have imposed criminal liability through a statute regulating potentially harmful or injurious items, without requiring an accused's knowledge of the facts that make the accused's conduct illegal, so long as the accused is aware of dealing with an item placing the accused in responsible relation to a public danger, a court must have in view some category of dangerous and deleterious devices that will be assumed to alert an individual possessing such devices that the individual stands in responsible relation to a public danger; by determining that a statute defines a public welfare offense, the court has determined that the statute regulates in a field where knowing possession of some general class of items should alert individuals to probable regulation. Staples v United States (US)  128 L Ed 2d 608,  114 S Ct 1793.

The mens rea requirement, that an accused know the facts that make the accused's conduct illegal, under a criminal statute is a question of law, to be determined by a court; it is for courts, through interpretation of the statute, to define the mens rea required for a conviction; that task cannot be reduced to setting a general standard that leaves it to the jury to determine whether the items involved in a particular prosecution are sufficiently dangerous to place a person possessing the items on notice that the items are regulated under a criminal statute. Staples v United States (US)  128 L Ed 2d 608,  114 S Ct 1793.

The existence of a mens rea requirement that an accused know the facts that make the accused's conduct illegal is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence; generally speaking, an accused's knowledge of the facts that make the accused's conduct fit the definition of the criminal offense is necessary to establish mens rea. Staples v United States (US)  128 L Ed 2d 608,  114 S Ct 1793.

Jury could have reasonably concluded that convicted murderer acted "deliberately" where he and an accomplice broke into an apartment to commit burglary, were interrupted by 2 men, one of whom ran and the other attacked the murderer when the murderer pointed a gun at them, the murderer and the man briefly struggled, the man fell over backwards on the floor, and the murderer shot and killed the man as he lay on his back several feet from the murderer. Johnson v Collins (1992, CA5 Tex) 964 F2d 1527, stay den, cert den (US)  120 L Ed 2d 933,  113 S Ct 4.

State or Federal Government does not violate due process protections each time it chooses not to include intent to violate regulation as element of crime. Stepniewski v Gagnon (1984, CA7 Wis) 732 F2d 567.

Controlled substance in person's body is in possession of that person for purposes of 18 USCS §  3583(g), assuming required mens rea. United States v Rockwell (1993, CA10 Okla) 984 F2d 1112, cert den (US) 1993 US LEXIS 3988.

In prosecution for murder of five-year old child, with special allegation of torture, defendant's allegation that his actions constituted misguided, irrational, and totally unjustified attempt at discipline, rather than willful, deliberate, or premeditated acts, did not negate finding of intent to torture. People v Mincey (1992) 2 Cal 4th 408, 6 Cal Rptr 2d 822, 827 P2d 388, 92 CDOS 2955, 92 Daily Journal DAR 4693, reh den, mod 2 Cal 4th 758d, 92 CDOS 4536, 92 Daily Journal DAR 7300 and habeas corpus proceeding (Cal) 1992 Cal LEXIS 3550 and stay gr, in part, stay den, in part (Cal) 1992 Cal LEXIS 4146 and petition for certiorari filed (Sep 24, 1992).

A general intent crime is one that only requires the actor intend the act which constitutes the crime. A specific intent crime is one that requires the actor intend not only the proscribed act, but also that he or she intend some further act or additional consequence. A general intent crime may also involve a specific mental state, such as knowledge. People v Whitfield (1992, 4th Dist) 11 Cal App 4th 1045, 15 Cal Rptr 2d 4, 92 CDOS 10027, 92 Daily Journal DAR 16756.

Recklessness in itself is not a criminal offense. Rather, it is a mental state that serves as an element of an offense, such as reckless homicide or involuntary manslaughter. Recklessness may be inferred from all the facts and circumstances in the record, viewed as a whole, and may be established by evidence regarding the physical condition of defendant. Evidence of intoxication, therefore, while not an element of the charged offense, is probative on the issue of recklessness. If the State introduces evidence of intoxication in a reckless homicide or involuntary manslaughter, it need only present some evidence of intoxication from which, along with other circumstances, recklessness may be inferred. Whether recklessness has been proved is an issue to be decided by the trier of fact. People v Smith (1992) 149 Ill 2d 558, 174 Ill Dec 804, 599 NE2d 888, reh den (Oct 5, 1992) and on remand (Ill App 1st Dist) 1992 Ill App LEXIS 2108.

Montana statutory scheme, which eliminates insanity as affirmative defense and provides criminal defendant with opportunity to present evidence that he has mental disease or defect to prove that he did or did not have state of mind that is element of offense, does not violate Fifth and Fourteenth Amendment due process rights of defendants. No constitutional right to plead insanity defense exists at law. State v Byers (1993, Mont) 861 P2d 860, petition for certiorari filed (Feb 1, 1994).

Culpable mental states of intent and recklessness are mutually exclusive. People v Robinson (1989, 4th Dept)  145 App Div 2d 184, 538 NY S2d 122, app gr  74 NY2d 746, 545 NYS2d 121, 543 NE2d 764 and affd  75 NY2d 879, 554 NYS2d 473, 553 NE2d 1021.

Accused's conviction of kidnapping, arson, rape, felonious sexual penetration, and aggravated murder did not involve conviction of 2 or more allied offenses in violation of RC § 2941.25, where a separate animus was involved for each of several acts committed separately from the kidnapping and continuing after the rape. State v Hill (1992) 64 Ohio St 3d 313, 595 NE2d 884, reh den 65 Ohio St 3d 1421, 598 NE2d 1172 and cert den (US)  123 L Ed 2d 272,  113 S Ct 1651.

Transferred intent was the appropriate legal theory to apply in assessing the sufficiency of the evidence where defendant charged with aggravated murder with a gun specification shot at an automobile and killed victim with a stray bullet because, while the doctrine of transferred intent no longer applies in aggravated murder cases, the doctrine still applies in situations involving lesser crimes such as murder and defendant's apparent intention to kill one or more occupants of the automobile, combined with the actual death of victim resulting from the shots fired at the car, presents sufficient proof of the elements of a charge of murder. State v Mullins (1992, Franklin Co) 76 Ohio App 3d 633, 602 NE2d 769, motion gr 64 Ohio St 3d 1405, 591 NE2d 1249 and dismd, motion overr 65 Ohio St 3d 1407, 598 NE2d 1160 and cause dismd 67 Ohio St 3d 1415, 616 NE2d 243.

In a prosecution for, inter alia, recklessly endangering another person arising from the starvation death of the defendants' 14-year-old son and the malnutrition of their 12-year-old daughter, the evidence was sufficient to establish the required mens rea, notwithstanding that the defendants acted in accordance with their professed religious beliefs, where the evidence established that the defendants conduct by commission and omission toward their children created a substantial risk of death or serious bodily injury resulting from lack of sustenance. Commonwealth v Cottam (1992, Super Ct) 616 A2d 988.

The language of 75 Pa CS § 1543(b) does not require any kind of mens rea and knowledge that one is in Pennsylvania is not required to convict an individual under the statute. Commonwealth v Guthrie (1992, Super Ct) 616 A2d 1019.

Footnote 1. State v Tabasso Homes, Inc. 42 Del 110, 28 A2d 248; State v O'Neil, 147 Iowa 513, 126 NW 454; Commonwealth v Mixer, 207 Mass 141, 93 NE 249; State v Ryan, 70 NH 196, 46 A 49; Stokes v People, 53 NY 164; Kilbourne v State, 84 Ohio St 247, 95 NE 824; Amey v State, 53 Okla Crim 205, 9 P2d 49; Commonwealth v Junkin, 170 Pa 194, 32 A 617; State v Strasburg, 60 Wash 106, 110 P 1020.

In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur.  United States v Apfelbaum,  445 US 115,  63 L Ed 2d 250,  100 S Ct 948, on remand (CA3 Pa) 621 F2d 62.

Under the common law, proof of criminal intent is a necessary element in the prosecution of every criminal case, except those offenses which are merely malum prohibitum.  Lee v State, 244 Miss 813, 146 So 2d 736.

Criminal intent or criminal negligence is of the essence of every criminal offense, and it must in some way appear in order to justify a conviction. Meadowcroft v People, 163 Ill 56, 45 NE 991.

Footnote 2. "Actus non facit reum, nisi mens sit rea." See Ballentine's Law Dictionary 25 (2d ed 1969).

Footnote 3. Wilson v People, 103 Colo 441, 87 P2d.

Compare People v Scott, 1 Cal Unrep 68, stating that the rule does not apply in the favor of one who instigates and participates in an act of personal violence.

Footnote 4. Smith v California,  361 US 147,  4 L Ed 2d 205,  80 S Ct 215, 14 Ohio Ops 2d 459, reh den  361 US 950,  4 L Ed 2d 383,  80 S Ct 399; Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

Footnote 5. Durham v United States, 94 App DC 228, 214 F2d 862,  45 ALR2d 1430 (ovrld on other grounds United States v Brawner 153 App DC 1, 471 F2d 969) and (disagreed with on other grounds United States v Hendrix (CA2 NY) 542 F2d 879, cert den  430 US 959,  51 L Ed 2d 810,  97 S Ct 1609) and (disagreed with on other grounds Government of Virgin Islands v Fredericks (CA3 VI) 578 F2d 927).

Footnote 6. The truth is that the maxim about mens rea means no more than that the definition of all or nearly all crimes contains not only an outward and visible element, but a mental element, varying according to the different nature of different crimes. Brown v State (Sup) 23 Del 159, 74 A 836.

Footnote 7. Cargile v State, 194 Ga 20, 20 SE2d 416, ans conformed to 67 Ga App 610, 21 SE2d 326 (stating that there is no crime, though criminal act has been committed, if the intention or criminal negligence is lacking).

Footnote 8. People v Cohn, 358 Ill 326, 193 NE 150; Burnam v Commonwealth, 228 Ky 410, 15 SW2d 256; State v Blacklock, 23 NM 251, 167 P 714; People v Yeager (4th Dept)  7 App Div 2d 322, 182 NYS2d 910; Amey v State, 53 Okla Crim 205, 9 P2d 49; Crawford v Joslyn, 83 Vt 361, 76 A 108.

There are some crimes in which a wrongful intent is presumed solely from the commission of the act itself.  People v Peak, 66 Cal App 2d 894, 153 P2d 464 (disapproved on other grounds People v Carmen 36 Cal 2d 768, 228 P2d 281).

A guilty intent may be established from inferences reasonably drawn by the jury from facts that have been proved beyond a reasonable doubt, including acts and statements of a defendant. State v Boisvert (Me) 236 A2d 419.

Guilty intent may be presumed from neglect to support children. People ex rel. Gottschalk v Brown, 237 NY 483, 143 NE 653.

Footnote 9. Gordon v State, 52 Ala 308.

Footnote 10. Intent is an element of voluntary action, and all crimes, except those of omission, must be voluntary actions.  Brown v State (Sup) 23 Del 159, 74 A 836; State v Fulco, 194 La 545, 194 So 14.

Footnote 11.  §§ 89-91, infra.

Footnote 12. Ellis v United States,  206 US 246,  51 L Ed 1047,  27 S Ct 600; State v McLean, 121 NC 589, 28 SE 140.

Footnote 13. Billard v State, 30 Tex 367.

Footnote 14. United States v Fox,  95 US 670,  24 L Ed 538.

Some offenses by their very definition require a specific intent. 15   Where this is the case, the specific intent required is as much an element of the offense as the act itself. 16   Hence, the act without that intent does not constitute the crime 17  and proof of general malice of general criminal intent will not suffice. 18   If a specific intent is required by statute to constitute a crime, such intent enters into the nature of the act itself and must be alleged and proved. 19   It seems, however, that a conditional or alternative intent may be enough, at least where it is part of an effort to enforce an unlawful demand. 20

Specific intent may be, and ordinarily must be, proved by circumstantial evidence. 21   However, a specific intent may not be inferred where there are no facts to support it. 22   The intent is sometimes regarded as inferable from the use of means such as would ordinarily result in the commission of the forbidden act. 23   According to some authorities, the presumption that a person intends the natural and probable consequences of his unlawful voluntary acts applies to all criminal cases, including those where specific intent is an element of the crime. 24    Some cases, however, state that a finding of specific intent may not be based on this, or any, presumption. 25   In any case, a specific intent cannot be presumed from an unlawful act which does not naturally bespeak that intent. 26

Practice Aids: Robbins, The Ostrich Instruction: Deliberate Ignorance as a Criminal Mens Rea. 81 J Grim L 191, Summer, 1990.

Admissibility of expert testimony as to whether accused had specific intent necessary for conviction. (See also 31 Am Jur 2d, Expert and Opinion Evidence § 90.5.)  16 ALR4th 666.

Both text and legislative history of 31 USCS §  5324 suggest that structuring is specific intent crime, as mens rea and actus reus appear in text of statute as two separate, distinct elements, both of which must be proven; thus, it must be proven that accused structured transactions in specified amount and that he structured for specific purpose of evading federal reporting requirements. United States v Dollar Bank Money Market Account No. 1591768456 (1992, CA3 Pa) 980 F2d 233.

Summary judgment against defendant was inappropriate under 18 USCS §  981(a)(2), where, although he made 7 bank deposits in 2-week period, each under $l0,000, there was genuine question as to his mental state in doing so, where he allegedly did not know that filing of CTRs was required by law instead of bank policy, and he offered reasonable and legitimate explanation for his organization of transactions in amounts under $10,000. United States v Dollar Bank Money Market Account No. 1591768456 (1992, CA3 Pa) 980 F2d 233.

"Willfully" in 18 USCS §  1001 does not require finding of specific intent to violate law, since to hold otherwise would circumvent previous holding that § 1001 does not require proof of actual knowledge of federal agency jurisdiction. United States v Daughtry (1995, CA4 SC) 48 F3d 829.

In action by investors alleging, inter alia, violations of North Carolina securities laws, evidence was insufficient to support claim for aiding and abetting against accounting firm which conducted audits and prepared allegedly misleading financial statements on which investors relied, where investors failed to prove that accounting firm possessed "high conscious intent" or "specific motivation" to assist in solicitation of investors. Venturtech II v Deloitte Haskins & Sells (1992, ED NC) 790 F Supp 576, affd without op (CA4 NC) 993 F2d 228, reported in full (CA4 NC) 1993 US App LEXIS 10267 and petition for certiorari filed (Jul 29, 1993).

18 USCS §  1956 was not void for vagueness, even as applied to individual not engaged in money-laundering or drug dealing before initiation of sting operation, since 18 USCS §  1956(a)(l)(B) requires that specific intent be proved and that representations by law enforcement officers relate to specific unlawful conduct; provision is clear and applies to anyone who has requisite intent to engage in conduct as defined in statute. United States v Loehr (1992, CA6 Mich) 966 F2d 201, reh, en banc, den (CA6) 1992 US App LEXIS 16894.

Defendant was not merely "puffing" when he agreed to purchase 100 pounds of marijuana from undercover agent for resale and then supply agent with ten ounces of cocaine, since evidence of negotiations, resolution of terms of two deals, and production of marijuana buyer established defendant's intent and ability to facilitate transactions. United States v Skinner (1993, CA7 Ill) 986 F2d 1091.

Evidence was sufficient under preponderance standard to establish that defendant shot into group of people standing on street from moving vehicle with "premeditation and deliberation," even though he claimed he only shot into air on another's orders, and court could not conclusively find that pellet from his gun was one which hit victim, since, focusing on his actions prior to shooting, he did get into car with two men who had just been involved in shooting, and was either armed when he entered or accepted weapon from them. United States v Wilson (1993, CA8 Mo) 992 F2d 156, petition for certiorari filed (Jul 20, 1993).

Motion to dismiss prosecution of cross-burners under 18 USCS §  241, 18 USCS §  245(b)(2)(B), and 18 USCS §  2 on grounds that statutes as applied to cross-burners violate First Amendment is denied, although cross-burning is expressive conduct, because government must prove specific intent to convey threatening message designed to intimidate African-Americans; specific intent to threaten takes conduct outside First Amendment protection under strict scrutiny test; no incidental effect on protected speech exists because indictment alleges only cross-burning with intent to threaten or intimidate and threats are not protected; and since statutes aim at controlling unprotected threats, they are not overly broad or vague. United States v McDermott (1993, ND Iowa) 822 F Supp 582.

Defendant convicted of molestation of Indian children was not denied due process through jury instruction which created mandatory presumption foreclosing element of intent where there existed rational connection between facts proved and fact presumed. United States v Hester (1983, CA9 Ariz) 719 F2d 1041.

In proving violation of 18 USCS §  1029(a)(3), government need only show possession, not use, with requisite intent, of fifteen or more devices on set date; fact that defendant still had credit card numbers at his home, more than month after he had used them to purchase airline tickets on or before date alleged, demonstrated that he maintained possession of them on crucial date, with requisite intent. United States v Powell (1992, CA10 Colo) 973 F2d 885.

Real estate agent's intent to defraud United States by submitting false information to HUD may be inferred from facts adduced at trial, despite expert testimony regarding permissibility of using real estate commission for downpayment, according to HUD Handbook. United States v Hauck (1992, CA10 Colo) 980 F2d 611.

Though evidence of a defendant's intoxication at the time of a burglary may require an instruction on the lesser-included offense of misdemeanor breaking and entering, which requires no specific intent, evidence in this case, consisting of the testimony of defendant and his family and friends that he was an alcoholic and that he had been drinking on the dates in question and the fact that police on a later date found beer in his car, was insufficient to require an instruction on misdemeanor breaking and entering, particularly where the evidence tended to show that defendant, in order to commit the crimes in question, had to plan his actions by watching the victims use their ATM cards, attempting to memorize their access numbers, following the victims home, and, at an opportune moment, stealing their purses. State v Howie (1994) 116 NC App 609, 448 SE2d 867.

In prosecution of physician for drug trafficking under RC Chapter 2925, the trial court committed reversible error when it refused to provide the jury with a definition of "bona fide" because a proper instruction under RC Chapter 2925 would have permitted the jury to consider a physician's subjective state of mind, as well as objective criteria, in determining whether the physician's actions were performed in the course of the bona fide treatment of a patient. State v McCarthy (1992) 65 Ohio St 3d 589, 605 NE2d 911, reh den 66 Ohio St 3d 1414, 607 NE2d 13.

The court properly found that the defendant accessed voice mailboxes of 2 businesses with the necessary intent described in 18 Pa CS § 3933(a)(1) where (1) the defendant acknowledged that she knowingly and intentionally accessed the voice mailboxes, that she knew she was there without the knowledge of the businesses and that she maintained several mailbox systems, and (2) there was testimony that several legitimate mailboxes were disrupted by the defendant's actions; the defendant ensured exclusive dominion over mailboxes by changing their access codes and the logical and probable consequence of her actions was that authorized users could not use the mailboxes. Commonwealth v Gerulis (1992, Super Ct) 616 A2d 686.

Footnote 15. Intent requirements of particular offenses are treated in the articles dealing with those offenses.

Footnote 16. Hydrick v State, 246 Miss 448, 150 So 2d 423.

Footnote 17. Markiton v State, 236 Ind 232, 139 NE2d 440.

Footnote 18. State v Thomas, 127 La 576, 53 So 868; Hydrick v State, 246 Miss 448, 150 So 2d 423.

But see Beck v State, 73 Okla Crim 229, 119 P2d 865, holding that intent to do bodily harm was supplied by operating an automobile in a manner forbidden by law.

Specific intent is present when from the circumstances the offender must have subjectively desired the prohibited result, whereas general intent exists when from the circumstances the prohibited result may reasonably be expected to follow from the offender's voluntary act, irrespective of any subjective desire to have accomplished such result.  State v Daniels, 236 La 998, 109 So 2d 896 (ovrld on other grounds State v Gatlin 241 La 321, 129 So 2d 4 (ovrld on other grounds State v Liggett (La) 363 So 2d 1184) and (ovrld on other grounds State v Thompson (La) 366 So 2d 1291); (construing statutory definitions)).

Footnote 19. People v Connors, 253 Ill 266, 97 NE 643; State v Thomas, 127 La 576, 53 So 868; State v Zichfeld, 23 Nev 304, 46 P 802; People v Flack, 125 NY 324, 26 NE 267; Weitz v State, 48 Ohio App 421, 1 Ohio Ops 586, 17 Ohio L Abs 515, 194 NE 386 (motion for leave to file petition in error overruled); Ogelsby v State (Okla Crim) 411 P2d 974; State v Stenback, 78 Utah 350, 2 P2d 1050.

Footnote 20. One who points a loaded revolver at another to compel him to do a specified act which the assailant has no right to demand, under threat to kill him if he does not comply with the demand, is guilty of an assault with intent to kill, although death may be avoided by such compliance.  People v Connors, 253 Ill 266, 97 NE 643.

Footnote 21. State v Nathan, 138 Conn 485, 86 A2d 322; State v Davis, 108 NH 158, 229 A2d 842; State v Siegler, 12 NJ 520, 97 A2d 469.

Footnote 22. Markiton v State, 236 Ind 232, 139 NE2d 440.

Footnote 23. High v State, 26 Tex App 545, 10 SW 238.

Footnote 24. State v Vinson,  269 Wis 305, 68 NW2d 712, reh den  269 Wis 309B, 70 NW2d 1.

Footnote 25. People v Snyder, 15 Cal 2d 706, 104 P2d 639; State v Garney, 122 Mont 491, 207 P2d 506.

Footnote 26. State v Daniels, 236 La 998, 109 So 2d 896 (ovrld on other grounds State v Gatlin 241 La 321, 129 So 2d 4 (ovrld on other grounds State v Liggett (La) 363 So 2d 1184) and (ovrld on other grounds State v Thompson (La) 366 So 2d 1291)).

Where the defendant's intended act was a lawful one, free from negligence, and not in itself of a dangerous tendency, he is not criminally responsible for its unintended results. 27   And it is sometimes provided by statute that there is no criminal responsibility for an act committed through misfortune or by accident where there was no evil design, intention, or culpable negligence. 28   On the other hand, one who does an unlawful act is liable for the consequences even though they may not have been intended. 29    Thus, where one, in the commission of a wrongful act, commits another wrong not meant by him, 30  or where, in the execution of an intent to do wrong, an unintended act resulting in a wrong ensues as a natural and probable consequence, the one acting with wrongful intent is responsible for the unintended wrong. 31   This transfer of intent from an intended crime to an unintended result has sometimes been applied to offenses requiring specific intent. 32

It has been held that a defendant is criminally responsible for unintended results only if his intended act was one malum in se and not merely malum prohibitum. 33  On the other hand, it has been suggested that an offense of the latter character may be sufficient where it is the proximate cause of the harm, especially where it is an act in violation of a statute designed to safeguard human life and safety. 34    Since there can be no criminal intent to do a lawful act, it has been held that there can be no transference of intent where the intended act was a lawful one, though negligently done. 35    But the opposite result has been reached where the act was done with unlawful intent, though the same act without that intent would have been perfectly lawful. 36   A strict liability offense, which is punishable without any showing of criminal intent or criminal negligence, cannot serve as an "unlawful act" for purposes of making the defendant criminally responsible for unintended consequences. 37  

Under the doctrine of transferred intent, just as one's criminal intent follows the corresponding criminal act to its unintended consequences, so too does one's lack of criminal intent follow the corresponding noncriminal act to its unintended consequences. Thus, for example, a defendant is guilty of no crime if his legitimate act in self-defense results in the inadvertent death of an innocent bystander. Instructions on transferred intent, like instructions on any other defense, must be given on request if there is substantial evidence to support them. People v Levitt (1984, 2d Dist) 156 Cad App 3d 500, 203 Cal Rptr 276.

Footnote 27. State v Horton, 139 NC 588, 51 SE 945.

Footnote 28. People v Wells, 33 Cal 2d 330, 202 P2d 53, cert den  338 US 836,  94 L Ed 510,  70 S Ct 43.

"Misfortune" is analogous to misadventure and bears the connotation of accident while doing a lawful act.  People v Gorgol, 122 Cal App 2d 281, 265 P2d 69.

Footnote 29. Hankins v State, 206 Ark 881, 178 SW2d 56; Mercer v Corbin, 117 Ind 450, 20 NE 132.

One who intentionally commits a crime is responsible criminally for the consequences of his act, if the offense proves to be different from that which he intended.  Commonwealth v Murphy, 165 Mass 66, 42 NE 504.

As to criminal responsibility for unintentional homicide, see 40 Am Jur 2d,  Homicide §§ 91-112.

Footnote 30. De Berry v Commonwealth (Ky) 289 SW2d 495, cert den  352 US 881,  1 L Ed 2d 81,  77 S Ct 105; State v Hatley, 72 NM 377, 384 P2d 252 (one who deliberately committed assault and battery properly convicted of mayhem when victim lost an eye, though no intent to maim was proved).

Footnote 31. Coston v State, 139 Fla 250, 190 So 520; State v Griego, 61 NM 42, 294 P2d 282.

Footnote 32. State v Gallagher, 83 NJL 321, 85 A 207 (assaulting one person with intent to kill another).

Footnote 33. Commonwealth v Adams, 114 Mass 323.

Footnote 34. State v Budge, 126 Me 223, 137 A 244,  53 ALR 241, later app 127 Me 234, 142 A 857 and (superseded by statute as stated in State v Pray (Me) 378 A2d 1322).

Footnote 35. People v Joseph,  11 Misc 2d 219, 172 NYS2d 463.

Footnote 36. State v Brecount, 82 Kan 195, 107 P 763 (driving fire engine through crowded street with knowledge that alarm was false).

Footnote 37. People v Stuart, 47 Cal 2d 167, 302 P2d 5,  55 ALR2d 705 (dispensing adulterated or misbranded drugs).

Some offenses are defined in terms of negligence rather than intent. 38    However, to establish negligence as an element of a criminal offense ordinarily requires a higher degree of negligence than is necessary to establish liability in a civil action. 39       Though terminology differs under particular statutes, or between jurisdictions, 40  criminal or culpable negligence is generally defined, frequently with qualifying adjectives such as "wanton" or "flagrant," in terms of disregard of consequences or indifference to the rights or safety of others. 41   According to some authorities it must be negligence in such degree as to be regarded as the legal equivalent of criminal intent. 42   And this standard is sometimes applied even though the statute defining the offense uses such terms as "carelessly or negligently." 43   However, want of due care is sufficient if that is all the statute requires, 44  since the legislature has power to define a crime based on ordinary negligence. 45

Where one is charged with a special duty which involves danger to the safety of others, failure to perform it, even through inattention, is criminal negligence. 46   However, there can be no criminal negligence be mere omission to act unless the accused was under a special duty to perform the act omitted. 47   And in a jurisdiction which no longer has common-law crimes as such, the bare neglect of a legal duty is not a crime, unless some statute so prescribes. 48

Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. The state of mind of a person who acts with conscious indifference to the consequences is simply, "I don't care what happens." The test is objective: whether a reasonable person in the defendant's position would have been aware of the risk involved. People v Bennett (1991) 54 Cal 3d 1032, 2 Cal Rptr 2d 8, 819 P2d 849, 91 Daily Journal DAR 14926, reh den, mod 1 Cal 4th 653a, 92 CDOS 878, 92 Daily Journal DAR 1624.

Criminal negligence means that the defendant's conduct must amount to a reckless, gross or culpable departure from the ordinary standard of due care; it must be such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life. People v Sanders (1992, 5th Dist) 10 Cal App 4th 1268, 13 Cal Rptr 2d 205, 92 CDOS 9100, 92 Daily Journal DAR 15029.

In a homicide prosecution arising from an explosion at a manufacturing plant which caused six employee deaths and at least 45 other injuries, the trial court properly dismissed pursuant to CPL § 210.20(1)(b) (applicable when the evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense) an indictment charging manslaughter in the second-degree in violation of Penal L § 125.15(1) (grounded on recklessness) and criminally negligent homicide in violation of Penal L § 125.10 where, although the corporate and individual defendants had been aware of the existence of a broad undifferentiated risk of an explosion resulting from the corporation's manufacturing procedures, the cause which triggered the explosion had been neither foreseeable nor in fact foreseen by the individual defendants, People v Warnet-Lambert Co. (1980)  51 NY 2d 295, 434 NYS2d 159, 414 NE2d 660, cert den (US)  68 L Ed 2d 227,  101 S Ct 1742.

Footnote 38. Intention is not an ingredient of negligence, either criminal or civil.  One is held accountable for the results irrespective of the intent.  Sumpter v Commonwealth (Ky) 251 SW2d 852.

As to criminal responsibility for negligent homicide, see 40 Am Jur 2d,  Homicide §§ 91-99.

Footnote 39. Commonwealth v Tackett, 299 Ky 731, 187 SW2d 297; People v Angelo, 246 NY 451, 159 NE 394; State v Cope, 204 NC 28, 167 SE 456.

Criminal liability cannot be predicated on every careless act performed merely because such act resulted in injury to another. State v Bast, 116 Mont 329, 151 P2d 1009.

A long distance separates the negligence which makes one criminally liable from that which establishes civil liability. People v Rosenheimer, 209 NY 115, 102 NE 530 (ovrld on other grounds Horodner v Fisher  38 NY2d 680, 382 NYS2d 28, 345 NE2d 571, app dismd  429 US 802,  50 L Ed 2d 62,  97 S Ct 33).

Footnote 40. Commonwealth v Welansky, 316 Mass 383, 55 NE2d 902.

Where "reckless" conduct is an ingredient of statutory crime, recklessness is something more than ordinary negligence, mere want of due care.  It is a wanton or heedless indifference to consequences.  People v Mason, 198 Misc 452, 97 NYS2d 462, app dismd 306 NY 857, 118 NE2d 914.

To be reckless, conduct must be such as to evince a disregard of or indifference to consequences, under circumstances involving danger to the life or safety of others, although no harm was intended.  State v Custer, 129 Kan 381, 282 P 1071.

In a statute making it a crime where the operation of a vehicle "in a reckless or grossly negligent manner" results in death, "reckless" means wilful or wanton disregard of the safety of persons or property, which involves intentional conduct, but not intentional harm, and "grossly negligent" means very great negligence or want of even scant care, but not such reckless disregard of probable consequences as is equivalent to wilful and intentional wrong.  State v Bolsinger, 221 Minn 154, 21 NW2d 480.

Footnote 41. State v Taylor, 59 Idaho 724, 87 P2d 454; People v Angelo, 246 NY 451, 159 NE 394; State v Rountree, 181 NC 535, 106 SE 669; State v Clark, 118 Utah 517, 223 P2d 184.

Footnote 42. Commonwealth v Welansky, 316 Mass 383, 55 NE2d 902; State v Ankeny, 185 Or 549, 204 P2d 133.

Footnote 43. Turner v State, 65 Ga App 292, 16 SE2d 160.

Footnote 44. People v Pociask, 14 Cal 2d 679, 96 P2d 788.

Footnote 45. State v Labonte, 120 Vt 465, 144 A2d 792.

Footnote 46. State v Irvine, 126 La 434, 52 So 567.

Footnote 47. Anderson v State, 27 Tex App 177, 11 SW 33.

Footnote 48. People v Knapp, 206 NY 373, 99 NE 841 (stating that formerly, whenever legal duty of public nature was imposed by statute or common law, neglect of that duty was indictable).

In criminal law motive may be defined as that which leads or tempts the mind to indulge in a criminal act, 49  or as the moving power which impels to action for a definite result. 50   Motive is distinguishable from intent, which is the purpose to use a particular means to effect a certain result. 51   Motive is not an essential element of any crime, unless made so by statute. 52   Hence, it is generally not necessary for the prosecution to prove that the accused had adequate motive for what he did. 53   Though proof of motive is always relevant, 54  it becomes important only when the evidence, direct and circumstantial, fails to make out a satisfactory case. 55  In the latter situation, proof of motive may be of great probative force in determining guilt, especially in cases of circumstantial evidence. 56   However, a good motive will not relieve one of liability for a crime.  Thus, violation of a statute is not justified by the fact that the violator acted with a good motive. 57  

Motive is an inferential fact and may be inferred not merely from the attendant circumstances, but, in conjunction with these, from all previous occurrences having reference to, and connected with, the commission of the offense. 58   In the case of some offenses it may be self-explanatory. 59

In action by investors alleging, inter alia, violations of North Carolina securities laws, evidence was insufficient to support claim for aiding and abetting against accounting firm which conducted audits and prepared allegedly misleading financial statements on which investors relied, where investors failed to prove that accounting firm possessed "high conscious intent" or "specific motivation" to assist in solicitation of investors. Venturtech II v Deloitte Haskins & Sells (1992, ED NC) 790 F Supp 576, affd without op (CA4 NC) 993 F2d 228, reported in full (CA4 NC) 1993 US App LEXIS 10267 and petition for certiorari filed (Jul 29, 1993).

While evidence of a plan to eliminate witnesses is admissible to show a consciousness of guilt where the scheme is connected to the defendant, absent such a connection, the plan is not probative of the defendant's consciousness of guilt and should be excluded from evidence. People v Lucas (1992) 151 Ill 2d 461, 177 Ill Dec 390, 603 NE2d 460.

Testimony by a social worker that defendant had received checks from government agencies for his son until two months before a murder committed during the robbery of a convenience store was not improper character evidence and was relevant under Rules 401 and 404(b) to show motive. GS § 8C-1, Rules 401 and 404(b). State v Powell (1995) 340 NC 674, 459 SE2d 219.

Footnote 49. Thompson v United States (CA1 Mass) 144 F 14.

Footnote 50. State v Knox, 236 Iowa 499, 18 NW2d 716; People v Molineux, 168 NY 264, 61 NE 286.

Footnote 51. People v Molineux, 168 NY 264, 61 NE 286.

Footnote 52. State v Tuttle, 58 Ariz 116, 118 P2d 88; State v Knox, 236 Iowa 499, 18 NW2d 716; State v Henderson (Mo) 301 SW2d 813; State v Brown, 96 RI 236, 190 A2d 725, reh den 96 RI 241, 191 A2d 353.

A person is not to be acquitted of crime simply because his motive for perpetrating it cannot be discovered.  State v Feeley, 194 Mo 300, 92 SW 663.

Proof of motive does not establish guilt, nor does absence of motive prove innocence.  Re Peterson, 15 Utah 2d 27, 386 P2d 726.

Footnote 53. Littlejohn v State (Sup) 59 Del 291, 219 A2d 155; State v Radabaugh, 93 Idaho 727, 471 P2d 582; State v Wiggins, 272 NC 147, 158 SE2d 37, cert den  390 US 1028,  20 L Ed 2d 285,  88 S Ct 1418; Commonwealth v Nasuti, 180 Pa Super 279, 119 A2d 642, affd 385 Pa 436, 123 A2d 435.

Footnote 54. State v Tuttle, 58 Ariz 116, 118 P2d 88.

Footnote 55. Pointer v United States,  151 US 396,  38 L Ed 208,  14 S Ct 410; United States v Dennett (CA2 NY) 39 F2d 564 (motive not element of offense of mailing obscene matter); State v Tuttle, 58 Ariz 116, 118 P2d 88; People v Northcott, 209 Cal 639, 289 P 634; Keady v People, 32 Colo 57, 74 P 892.

Footnote 56. State v Knox, 236 Iowa 499, 18 NW2d 716.

Where a shooting charged as a homicide is claimed to have been accidental, motive may well be determinative, though whether it is or is not a decisive factor is for the jury.  State v Henderson (Mo) 301 SW2d 813.

Footnote 57. Commonwealth v Anderson, 272 Mass 100, 172 NE 114.

As to motive in publishing obscene work, see 50 Am Jur 2d,  Lewdness, Indecency, and Obscenity § 15.

Footnote 58. Walker v State, 85 Ala 7, 4 So 686.

Footnote 59. State v Brown, 96 RI 236, 190 A2d 725, reh den 96 RI 241, 191 A2d 353 (robbery).

As a term used in the criminal law "malice" does not necessarily have its popular connotation of ill will.  Frequently it means merely that state of mind which prompts the intentional doing of a wrongful act without legal justification or excuse. 60    The word may, however, be used in either sense. 61   The element of wickedness appears in some of the legal definitions. 62   It has been said that an unlawful act is not necessarily malicious. 63   And it has been held that where malice is the gist of the offense it must be shown that the accused was actuated by spite, ill will, or an evil motive, and not merely that he intentionally did a wrongful act. 64   The subject of malice, in its general aspects, is treated elsewhere. 65    And malice as an element in specific offenses is treated in connection with the specific offense. 66       

Malice is frequently implied. 67   Thus, the law implies malice where one deliberately injures another in an unlawful manner 68   or intentionally uses a deadly weapon in a deadly manner. 69  And the element of malice may be supplied by the presumption that one intends the natural and probable consequences of his voluntary and deliberate acts. 70

The court erred in instructing the jury on the third prong of malice to the effect that the Commonwealth was not required to prove specific intent; however, the error was harmless in light of the fact that the jury found the defendant guilty of murder in the first-degree by reason of deliberate premeditation and extreme atrocity and cruelty. Commonwealth v Costa (1993) 414 Mass 618, 609 NE2d 465.

In prosecution for first-degree murder and rape, trial court committed reversible error in denying defendant's pretrial request for appointment of psychiatric expert at state expense. Evidence was relevant to determine whether defendant had specific mental state required to commit malice aforethought murder, to determine punishment, and to determine his sanity at time of crimes, and attorney who had represented defendant at preliminary hearing requested psychiatric expert for several reasons, including facts and circumstances surrounding crime, his suspicion that defendant might have been on drugs, namely PCP, when crime was committed, and because he had gathered information from defendant's family indicating that defendant had learning disability, was depressed before crime, and had suffered head trauma as child. In addition, there was evidence that defendant's second attorney had questioned his mental condition. Washington v State (1992, Okla Crim) 836 P2d 673.

Footnote 60. State v Heinz, 223 Iowa 1241, 275 NW 10,  114 ALR 959; Sall v State, 157 Neb 688, 61 NW2d 256.

Preexisting hatred and malevolence toward the victim need not be shown. Wright v Commonwealth (Ky) 335 SW2d 930.

For other definitions, see 52 Am Jur 2d,  Malice § 1.

Footnote 61. Fears v State, 33 Ariz 432, 265 P 600; Combs v Commonwealth (Ky) 356 SW2d 761.

Footnote 62. In law malice is a term of law importing wickedness and excluding a just cause or excuse.  State v Harvey, 220 SC 506, 68 SE2d 409.

Malice is a wicked and mischievous purpose, which characterizes the perpetration of an injurious act without lawful excuse.  State v Pudman, 65 Ariz 197, 177 P2d 376.

Footnote 63. State v Holmes, 115 SC 238, 105 SE 347.

Footnote 64. Fears v State, 33 Ariz 432, 265 P 600.

Footnote 65. See 52 Am Jur 2d,  Malice.

Footnote 66. See, for example, 6 Am Jur 2d,  Assault and Battery; 16 Am Jur 2d,  Conspiracy § 13; 40 Am Jur 2d,  Homicide; 50 Am Jur 2d,  Libel and Slander; 52 Am Jur 2d,  Malicious Mischief;  Malicious Prosecution.

Footnote 67. As to distinction between express and implied malice, see 52 Am Jur 2d,  Malice § 2.

Footnote 68. Anarchists' Case, 122 Ill 1, 12 NE 865, error dismd  123 US 131,  31 L Ed 80,  8 S Ct 22.

Footnote 69. State v Heinz, 223 Iowa 1241, 275 NW 10, State v Jackson, 36 SC 487, 15 SE 559.

Footnote 70. Taylor v State, 201 Ind 241, 167 NE 133.

"Wilful" is a word of many meanings, its construction often being influenced by the context in which it is used. 71  A wilful act is one which is intentional, or knowing, or voluntary, as distinguished from accidental. 72  And the word is sometimes given this construction even in criminal statutes. 73   In the latter context, however, wilful generally means not only designedly but with a bad purpose, 74  with evil intent or legal malice, 75  without justifiable cause, or stubbornly, obstinately, perversely. 76  Wilful is also employed to characterize a thing done without believing it lawful, or conduct marked by careless disregard of whether one has the right to so act. 77  It may also refer to the doing of an act with knowledge that it is forbidden, and therefore with evil intent to violate the law. 78

Defendant's due process rights were violated in his trial for illegally structuring monetary transactions by absence of instruction on willfulness requirement of anti-structuring statutes which demands jury finding that defendant knew that structuring was unlawful, since defendant had due process right to have prosecution persuade fact- finder of facts necessary to establish each element of offense charged. United States v Marder (1995, CA1 Mass) 48 F3d 564, cert den (1995, US)  131 L Ed 2d 320,  115 S Ct 1441.

Difference between "knowingly" and "willfully" in 18 USCS §  924(a)(1) is that latter requires knowledge of law. United States v Obiechie (1994, CA7 Ill) 38 F3d 309.

Bank executive willfully misapplied funds, where he wrote check for $960,892 on account in which only $611,000 had been deposited to cover check, even though overdrafts alone are insufficient to establish violation of 18 USCS §  656, since he acted with intent to defraud or injure bank, given amount of control he exercised over all aspects of this transaction. United States v Haddock (1992, CA10 Kan) 961 F2d 933.

In prosecution for mail fraud under 18 USCS §  1341 and 18 USCS §  2(b), instruction that every person is presumed to know what law forbids did not create unconstitutional presumption as to defendants' guilt or unlawfully shift burden of proof, since defendants have shown no reason why "wilfully" should have meaning other than traditional one. United States v Hollis (1992, CA1O Okla) 971 F2d 1441.

Instructions given in a prosecution for trafficking in regard to constructive possession of illegal drugs found in the trunk of an automobile were sufficient to convey the concepts of knowledge, ability and intent to control where the court charged the jury that it was required to consider whether the defendant possessed the drugs consciously, voluntarily and purposely; there was no significant difference between the words "purposely" and "intentionally." Commonwealth v Owens (1993) 414 Mass 595, 609 NE2d 1208.

In a prosecution of defendant for the felony of malfeasance of a corporation agent and two misdemeanors of violating the North Carolina Medical Care Commission Rules, the trial court erred in instructing the jury that willful means intentional without also informing the jury that to be willful the act or inaction must also be purposely and designedly in violation of law. With regard to the felony, defendant was not prejudiced by the court's improper instruction, but with regard to the misdemeanors, failure to instruct properly was prejudicial. State v Whittle (1995) 118 NC App 130, 454 SE2d 688.

Footnote 71. Spies v United States,  317 US 492,  87 L Ed 418,  63 S Ct 364.

Footnote 72. United States v Murdock,  290 US 389,  78 L Ed 381,  54 S Ct 223; Caldwell v State, 55 Tex Crim 164, 115 SW 597.

Footnote 73. State v Krueger (ND) 124 NW2d 468 ("wilfully" making false canvass of votes).

The term "wilfully" as used in a statute prohibiting wiretapping, in order to protect the right of privacy, does not require a showing of malice, since the invasion of privacy does not depend upon the motive of the tapper. People v Broady,  5 NY2d 500, 186 NYS2d 230, 158 NE2d 817,  74 ALR2d 841, remittitur amd  6 NY2d 814, 188 NYS2d 200, 159 NE2d 689, cert den and app dismd  361 US 8,  4 L Ed 2d 49,  80 S Ct 57.

Footnote 74. State v Clifton, 152 NC 800, 67 SE 751.

Footnote 75. Caldwell v State, 55 Tex Crim 164, 115 SW 597.

Footnote 76. United States v Murdock,  290 US 389,  78 L Ed 381,  54 S Ct 223.

Footnote 77. United States v Murdock,  290 US 389,  78 L Ed 381,  54 S Ct 223 (refusal to furnish information not wilful where based on bona fide, though legally erroneous, claim of privilege); State v Clifton, 152 NC 800, 67 SE 751 (constable's killing of dog not wilful if he acted in good faith under color of ordinance).

Footnote 78. Hargrove v United States (CA5 Tex) 67 F2d 820, (actual knowledge of the existence of the obligation and a wrongful intent to evade it); State v Gotsch, 23 Conn Supp 395, 1 Conn Cir 263, 184 A2d 56.

Ordinarily one is not guilty of a crime unless he is aware of the existence of all those facts which make his conduct criminal. 79   There are exceptions to this principle, however. 80

The word "knowingly," as part of the statutory definition of a criminal offense, has no single fixed and uniform meaning. 81  A determination of its meaning rests on the character of the offense charged. 82   "Knowingly" is sometimes construed in the sense of "intentionally," in which case it must be made to appear that the party charged was aware of the illegality of his conduct.  However, the more usual construction is that it does not require knowledge of the act's unlawfulness, but merely knowledge of those facts which are essential to make it unlawful. 83  

Practice Aids: Perkins, "Knowledge" as a Mens Rea Requirement. Centennial Symposium, Hast LJ 953, May, 1978.

Propriety of instruction of jury on "conscious avoidance" of knowledge of nature of substance or transaction in prosection for possession or distribution of drugs,  109 ALR Fed 71.

A second offense, as used in the criminal statutes, is one that has been committed after conviction for a first offense, it being not legally knowable that an offense has been committed until there has been a conviction. Deal v United States (1993, US)  124 L Ed 2d 44,  113 S Ct 1993, 93 CDOS 3577, 93 Daily Journal DAR 6174, 7 FLW Fed S 283.

Absent special circumstances, knowledge, ratification and board consent are not per se defenses to charge of willful misapplication, but are rather evidentiary matters that may be considered as part of defense to intent or wilful missapplication. United States v Brennan (1993, CA1 Mass) 994 F2d 918, summary op at (CA1 Mass) 21 M.L.W. 2816, 14 R.I.L.W. 250.

Convicted felon "knowingly possessed" firearm, which he claimed belonged to his girlfriend, where he pawned gun for her, since ownership was irrelevant to issue of possession. United States v Hernandez (1992, CA8 Minn) 972 F2d 885.

Evidence was insufficient to convict government contractor of submitting false claims to Army Corps of Engineers, where government's principal witness relied on self-contradictory document to prove that defendant did not work when he said he did, and another document relied upon to prove that defendant must have overbilled government was ambiguous, since government failed to prove that defendant knew that statements were false at time he made them. United States v Barker (1991, CA9 Cal) 967 F2d 1275, 91 Daily Journal DAR 15542.

Psychologist's testimony was not harmless error, where defendant chose to present her defense of lack of knowledge exclusively through his testimony regarding her perceptual difficulties, since expert psychological testimony need not relate to mental "disorder," nor was conclusive opinion required. United States v Rahm (1993, CA9 Cal) 993 F2d 1405, 93 CDOS 3431, 93 Daily Journal DAR 5940.

In prosecution for violation of 18 USCS §  1001, instruction is sufficient where it is given in effort to explain what element of "knowingly" means in that element of knowingly requires jury to attempt to assess whether defendant subjectively knew that information he was providing was false. United States v Cox (1983, CA11 Ga) 696 F2d 1294.

To establish act was done knowingly and willfully within meaning of 18 USCS §  1001, evidence must show party acted voluntarily and intentionally, and not because of mistake or accident or other innocent reason, and with specific intent to do something that law forbids. Holmes v General Dynamics Corp. (1993, 4th Dist) 17 Cal App 4th 1418, 22 Cal Rptr 2d 172, 93 CDOS 6236, 93 Daily Journal DAR 10701, 8 BNA IER Cas 1249.

The imputation of knowledge of a state employee to the prosecution requires an individualized focus on the factual circumstances. Among the factors to be considered would be the reasonableness of the imputation, whether the failure to transmit the knowledge up the informational chain was inadvertent or intentional and whether any real prejudice occurred. People v Robinson (1993) 157 Ill 2d 68, 191 Ill Dec 107, 623 NE2d 352, reh den (Nov 29, 1993).

The evidence was sufficient to support the defendant's conviction for trafficking in 28 or more grams of cocaine where the defendant, who acted as a runner for a drug dealer, was found in possession of 1.32 grams of cocaine and the drug dealer with whom the defendant operated was found in possession of 27.55 grams of cocaine; the fact that the defendant might not have known how much cocaine was held by the drug dealer did not require a contrary conclusion. Commonwealth v Cuffie (1993) 414 Mass 632, 609 NE2d 437.

Footnote 79. United States v Crimmins (CA2 NY) 123 F2d 271 (disagreed with on other grounds United States v Newson (CA10 Colo) 531 F2d 979,  40 ALR Fed 487) and (disagreed with on other grounds United States v Squires (CA4 Va) 581 F2d 408) and (disagreed with on other grounds United States v Waldron (CA1 Mass) 590 F2d 33, cert den  441 US 934,  60 L Ed 2d 662,  99 S Ct 2056).

As to proof of knowledge, see 29 Am Jur 2d,  Evidence, § 355.

Footnote 80. Ignorance or mistake of fact as defense, § 141, infra.

Footnote 81. Finn v United States (CA4 Va) 256 F2d 304.

Footnote 82. Riss & Co. v United States (CA8 Mo) 262 F2d 245.

Footnote 83. People v Flumerfelt, 35 Cal App 2d 495, 96 P2d 190; Commonwealth v Altenhaus, 317 Mass 270, 57 NE2d 921; People v Shapiro,  4 NY2d 597, 176 NYS2d 632, 152 NE2d 65,  69 ALR2d 973; State v Huffman, 131 Ohio St 27, 5 Ohio Ops 325, 1 NE2d 313; Coury v State, 20 Okla Crim 8, 200 P 871; Crawford v Joslyn, 83 Vt 361, 76 A 108; Gottlieb v Commonwealth, 126 Va 807, 101 SE 872.