of the alleged wrongful act, becomes an issue in the case, the judge of the court before whom the accused is to be tried or is being tried shall commit the accused to the State Hospital for the Insane, to be detained there for purposes of observation until further order of court. The court shall direct the superintendent of the hospital to permit all the expert witnesses summoned in the case to have free access to the accused for purposes of observation. The court may also direct the chief physician of the hospital to prepare a report regarding the mental condition of the accused. This report may be introduced in evidence at the trial under the oath of said chief physician, who may be cross-examined regarding the report by counsel for both sides.

These bills were discussed editorially in a recent number of the HARVARD LAW REVIEW. The editor expressed approval of them with the exception of the first section of the bill relating to criminal responsibility, which he adversely criticized. At the request of the present writer, the editor-in-chief of the REVIEW kindly gave him this opportunity to reply to these criticisms.

The section criticized reads as follows:

"No person shall hereafter be convicted of any criminal charge when at the time of the act or omission alleged against him he was suffering from mental disease and by reason of such disease he did not have the particular state of mind that must accompany such act or omission in order to constitute the crime charged."

This section was objected to on the following grounds:

I. "It neglects entirely the important and steadily growing class of crimes in which a specific intent is unnecessary." II. "It fails to cover the case of irresistible impulse, where the power of choice is negatived by the mental disorder." III. "The statute, according to its authors, will introduce the doctrine of partial responsibility, i. e. the holding of lunatics for part of their crimes." IV. "It is difficult to see wherein the proposed legislation would materially change the existing legal situation." V. "The previous rules, though less precise, were more complete."

I. The question presented by the first objection is whether the proposed test is limited to crimes which require a specific intent.

It is a fundamental principle of the criminal law that every crime, either common law or statutory, with the exception of public nuisances and breaches of what are commonly described as police

Vol. 30, p. 179 (December, 1916).




regulations, includes a mental element. This necessary mental element has been variously named. In the familiar maxim it is “mens rea.” 5 Bracton calls it "voluntas nocendi." Lord Hale speaks of the "will to commit an offense." Blackstone calls it "vicious will." 8 Austin uses "criminal knowledge." The terms usually employed are "guilty mind " 10 and "criminal intent," "1 the latter being divided into general intent and specific intent. All of these terms are open to objection. "Mens rea" was said by Stephen, J., in Regina v. Tolson,12 to be confusing and contradictory, because it is used to include so many dissimilar states of mind. On the other hand a recent English writer narrowly defines mens

5 Actus non facit reum, nisi mens sit rea. Pollock and Maitland state that the original source of this maxim is to be found in the sermons of St. Augustine, where the wording is "Ream linguam non facit nisi mens rea." The maxim later appears in the Leges Henrici as 'Reum non facit nisi mens rea." Coke states it "Et actus non facit reum nisi mens rea sit." 2 POLLOCK AND MAITLAND, HISTORY OF ENGLISH Law, 474,



6 "Crimen non contrahitur, nisi nocendi voluntas intercedat." 2 DE LEGIBUS ANGLIAE (Twiss ed.), 126.

7 "Where there is no will to commit an offence, there can be no transgression." HALE, P. C., ch. 2.

8 "An unwarrantable actjwithout a vicious will is no crime at all." 4 BL. COMM. 21. 9 "Every crime, therefore, supposes, on the part of the criminal, criminal knowledge or negligence." 3 AUSTIN, JURISPRUDENCE, 326.

10 "The general rule of law is that a person cannot be convicted and punished in a proceeding of a criminal nature, unless it can be shown that he had a guilty mind." Field, J., in Chisholm v. Doulton, 22 Q. B. D. 736, 739 (1889).

"The second element which is essential to constitute a crime is what is called the mens rea: a 'guilty mind." CHERRY, OUTLINE OF CRIMINAL LAW, 8.

"An act cannot amount to a crime when it is not accompanied by a guilty mind." SHIRLEY, CRIMINAL LAW, 4.

11 "Criminal intent is always essential to the commission of crime." Werner, J., in People v. Molineux, 168 N. Y. 264, 297, 61 N. E. 286 (1901).

"It is, therefore, a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it cannot exist." BISHOP, NEW CRIMINAL LAW, § 287. Bishop in the same section uses "evil mind."

"It is a sacred principle of criminal jurisprudence that the intention to commit the crime is of the essence of the crime." Turley, J., in Duncan v. State, 7 Humph. (Tenn.) 148, 150 (1846).

"To constitute a criminal act, there must, as a general rule, be a criminal intent.” Hoar, J., in Commonwealth v. Presby, 14 Gray (Mass.) 65, 66 (1859).

12 23 Q. B. D. 168, 185 (1889). "The maxim is recognized as a principle of English Law by all authorities, but the real difficulty arises, not as to the universality of its application, but as to its meaning. The 'mens rea' generally means some actively guilty intention. It may, however, be mere negligence, if of a very gross description." CHERRY, OUTLINE OF CRIMINAL Law, 8.

rea as "knowledge or neglect of available means of knowledge that one's act is, or may be, in contravention of the law of England.” 13 "Will," as used by Hale and Blackstone, was probably a translation of the "voluntas" of Bracton and was equivalent to "intention." 14 "Guilty mind" is objectionable because it suggests moral turpitude. "Criminal intent" is not a satisfactory term to describe the mental element involved in every crime, (1) because, under the classification into general and special, "intent" has different meanings,15 and (2) because the mental element in some crimes is negligence, which is inconsistent with the idea of "intent." All these terms have a common fault in seeming to imply that the mental state involved in crimes is a constant quantity, whereas, as is well known, it varies in different crimes. The malice aforethought of murder is different from the animus furandi of larceny, and this differs from the negligence required for involuntary manslaughter and the intent to burn necessary for arson. Some writers avoid the difficulty of giving a definite name to the mental element of crimes by saying that a certain state of mind is involved in the definition of every crime.16 If then the section under discussion had simply said "state of mind" instead of "particular state of mind" no question as to its scope could possibly be raised - it would clearly cover every offense which includes any mental element. The question then is, whether the addition of the word "particular" has a narrowing effect. The word was used in its ordinary meaning of "pertaining

13 STROUD, MENS REA, 20. Another definition is the following: "The mens rea, or guilty mind, of which the law speaks, is that mental state in which the actor, voluntarily doing an act, is conscious of the existence of facts, from which it follows as a matter of law that the thing done by him is an infraction of a duty or prohibition." G. A. Endlich, "The Doctrine of Mens Rea," 13 CRIMINAL LAW MAGAZINE, 831, 834. 14 “It is not, however, a ‘will' in Austin's sense of that word; but is closely akin to, and includes, his 'Intention.'" KENNY, OUTLINES OF CRIMINAL LAW, 37


15 "The general intent . . . is an intention to do the act done. The specific intent is some independent mental element which must accompany the physical act in order that the crime in question may be committed." BEALE, CRIMINAL PLEADING AND PRACTICE, § 136.

"Intent [to kill] is defined as a steady resolve and deep-rooted purpose or design formed after carefully considering the consequences." Clark, J., in State v. Conly, 130 N. C. 683, 687, 41 S. E. 534 (1902).

16 "The full definition of every crime contains expressly or by implication a proposition as to a state of mind." Stephen, J., in Reg. v. Tolson, 23 Q. B. D. 168, 187 (1889). "The state of mind which accompanies an act is often of legal consequence as forming an ingredient necessary for the attachment of certain consequences." I WIGMORE, EVIDENCE, § 242.

to a single thing," the idea being to limit the inquiry to the mental element involved in the crime charged and no other. This is no unusual use of the word in this connection. Russell discusses the "particular mental elements necessary to constitute particular crimes,"1 and Kenny states that "every crime involves (1) a particular physical condition, . . . and (2) a particular mental condition causing this physical condition." 18 The phrase "the particular state of mind which must accompany such act or omission in order to constitute the crime charged" as used in the proposed section was meant to cover the mental element, whatever it may be and whatever it may be called, of the crime charged; and the foregoing discussion would seem to establish that this result was accomplished without in any way straining the accepted meaning of the words employed.

As examples of offenses in which no specific intent is necessary, and which according to his view are consequently not covered by the section, the editor mentions purchasing lottery tickets, dispensing liquor to minors, frequenting gambling dens and brothels, and statutory rape. He states that under the statute one who has a mania for committing these acts "would be unable to plead insanity and would apparently be sent to prison instead of to an insane asylum." So far as the writer knows, there is no reported case in which insanity has been set up as a defense to a charge of having committed any of these offenses. Even if some such cases have been overlooked, they are so few that the question whether they are covered by the proposed section is not of great practical importance. However, the question is of sufficient interest to deserve a serious discussion. Since the statute, as shown above, covers every offense, common law and statutory, which includes a mental element, the question whether it covers the offenses mentioned depends on whether any state of mind is included in their definition.

There are two classes of statutory prohibition which do not involve a specific intent. They are (1) those which require socalled general intent, as distinguished from specific intent, and (2) those in which the state of the mind of the doer is altogether immaterial. In a leading English case the latter group is divided I RUSSELL, CRIMES, 7 ed., 102.



into three classes: (1) "Acts which are not criminal in any real sense, but which in the public interest are prohibited under a penalty," such as the innocent sale of adulterated food; (2) "public nuisances"; (3) "cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right." 19 The first class corresponds to what are generally called police regulations.20

Various reasons are given why no wrongful state of mind need be shown in such cases. Some of these reasons are: (1) that it would be difficult to secure convictions otherwise; 21 (2) that the purpose of such prohibitions is simply to protect the public from the doing of certain acts; 22 (3) that the legislature in enacting the statute has done away with the necessity for showing any state of mind on the part of the doer of the prohibited act.23 The last of

19 Wright, J., in Sherras v. De Rutzen, [1895] 1 Q. B. 918, 922.

20 In State v. Rippeth, 71 Ohio St. 85, 87, 72 N. E. 298 (1904), a statute made it an offense to sell oleomargarine with coloring matter in it. Regarding this statute the court said: "This is a police regulation imposing a penalty irrespective of criminal intent."

"In statutory offenses created in the exercise of the police power, unless a wrongful intent or guilty knowledge, commonly designated by the use of the words 'willfully' or 'maliciously,' is made an essential element of the prohibited act, the violator may be convicted and punished, even if he has no design to disobey the law. . . . It is because of this familiar doctrine, inherent in the construction of statutes, which prohibit under a penalty acts and conduct which otherwise are not generally deemed unmoral or criminal, that convictions for the sale of liquor, where the seller had no just ground to believe it was intoxicating, or of imitation butter by the defendant's agent without a descriptive wrapper, which, though furnished, he failed from mere carelessness to use, or an inadvertent sale by the defendant's servant of milk not of standard quality, and the admission of a minor to a pool room where the defendant neither knew nor had any reason to believe that he was under age, have been sustained." Commonwealth v. N. Y. Cen. & H. R. R. Co., 202 Mass. 394, 396, 88 N. E. 764 (1909).

21 "Laws forbidding the sale of intoxicating liquor and impure foods would be of little use, if convictions for their violations were to depend on showing guilty knowledge." People v. Hatinger, 174 Mich. 333, 335, 140 N. W. 648 (1913). A similar statement occurs in In re Carlson's License, 127 Pa. St. 330, 332, 18 Atl. 8 (1889).

22 "The history of the milk legislation in this Commonwealth shows conclusively the determination of the lawmaking power to protect the community from adulterated or impure milk. The ultimate purpose is to have pure milk and to impose upon milk dealers the duty of seeing that the milk be such." Commonwealth v. Graustein, 209 Mass. 38, 42, 95 N. E. 97 (1911).

To the same effect see People v. D'Antonio, 134 N. Y. Supp. 657, 661 (1912).

23 Lord Russell of Killowen said of a statute prohibiting the sale of adulterated milk: "This is one of the class of cases in which the Legislature has, in effect, determined that mens rea is not necessary to constitute the offence." Parker v. Alder,

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