delivered the opinion of the Court.
This wоuld have remained a profoundly insignificant case to all except its immediate parties had it not been so tried and submitted to the jury as to raise questions both fundamental and far-reaching in federal criminal law, for which reason we granted certiorari. 1
On a large tract of uninhabited and untilled land in a wooded and sparsely populated área of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. These bombs consisted of a metal cylinder about forty inches long and eight inches across, filled with sand and enough black powder to cause a smoke puff by which the strike could be located. At various places about the range signs read “Danger — Keep Out— Bombing Range.” Nevertheless, the range was known as good deer country arid was extensively hunted.
Spent bomb casings were cleared from the targets and thrown into piles “so that they will be out of the way.” They were not stacked or piled in any order but were dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.
Morissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized $84.
Morissette, by occupation, is a fruit stand operator in summer and a trucker and scrap iron^ollector in winter. An honorably discharged veteran of-World.War'll,
The loading, crushing and transporting of these casings were all in broad daylight, in full viéw of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he “did unlawfully, wilfully and knowingly steal and convert” property of the United States of the value of. $84, in violation of 18 U. S. C. § 641, which provides that “whoever embezzles, steals, purloins, or knowingly converts” government property is punishable by fine and imprisonment. 2 Morissette was convicted and sentenced to imprisonment for two months or to pay a fine of $200. The Court of Appeals affirmed, one judge dissenting. 3
On his trial, Morissette, as he had at all times told investigating officers, testified that from appearances he believed the casings were cast-off and abandoned, that he did not intend to steal the property; and took it with no
The Court of Appeals suggested that “greater restraint in expression should have been exercised,” but affirmed .the conviction because, “As we have interpreted the statute, appellant was guilty of its violation beyond a shadow of doubt, as evidenced even by his owii admissions.” Its construction of'the statute is that it creates several separate and distinct offenses, one being knowing -
I.
In those cases this Court did construe mere omission from a criminal enactment of any mention of criminal intent as dispensing with it. If they be deemed precedents for principles of construction generally applicable to federal penal statutes, they authorize this conviction. Indeed, such adoption of the literal reasoning announced in those cases would do this and more — it would sweep out of all federal crimés, except when expressly preserved, the ancient requirement of a culpable state of mind. We think a résumé of their historical background is convincing that an effect has been ascribed to them more comprehensive than was contemplated and one inconsistent with our philosophy of criminal law.
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.
4
A relation between some mental element and punishment for a
Crime,' as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individu
However, the
Balint
and
Behrman
offenses belbng to a category of another character, with very different antecedents and origins. The crimes there involved depend
While many of these duties are sanctioned by a more strict civil liability,
13
lawmakers, whether wisely or not,
14
The pilot of the movement in this country appears to be a holding that a tavernkeeper could be convicted for selling liquor to an habitual drunkard even if he did not know the buyer to be such.
Barnes
v.
State,
“I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule. . . . Many statutes which arfe in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the. public which shall render violation impossible.” People v. Roby,52 Mich. 577 , 579,18 N. W. 365 , 366 (1884).
After the turn of the Century, a new use for crimes-without intent appeared when New York enacted numerous and novel regulations of tеnement houses, sanctioned by money penalties. Landlords contended that a guilty intent was essential to establish a violation. Judge Cardozo wrote the answer:
"The defendant asks us to test the meaning of this statute by standards applicable to statutes that govern infamous crimes. The analogy, however, is deceptive. The element of conscious wrongdoing, the guilty mind accompanying, the guilty act, is associated with the concept of crimes that are punished as infamohs. . . . Even there it is not an invariable element. . . . But in the prosecution of minor offenses, there is a wider range of practice and of power. Prosecutions for petty penalties have always _ constitutfed in our law a class by themselves. ... That is true though the prosecution is criminal in form.” Tenement House Department v. McDevitt,215 N. Y. 160 , 168,109 N. E. 88 , 90 (1915).
Soon, employers advanced the same contention as to violations of regulations prescribed by a new labor law. Judge Cardozo, again for-the court, pointed out, as a basis
Thus, for diverse but reconcilable reasons, state courts converged on the same result, discontinuing inquiry into intent in a limited class of offenses against such statutory regulations.
Before long, similar questions growing out of federal legislation reached this Court. Its judgments were in harmony with this consensus of state judicial opinion, the existence of which may have led the Court to overlook the need for full exposition of their rationale in the context of federal law. In overruling a contention that-there can be no conviction on an indictment which,makes no charge of criminal intent but alleges only making of a sale of a narcotic forbidden by law, Chief Justice Taft, wrote:
“While the general rule.at common law was that-the scienter was a necessary element in the indictment and .proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it ... , there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a quеstion of legislative intent to be construed by the court. . . .” United States v. Balint, supra, 251-252.
He referred, however, to “regulatory measures in the exercise of what is called the police power where the eni
On the same day, the Court determined that an offense under the Narcotic Drug Act does not require intent, saying, “If the offense be a statutory one, and intent or knowledge is not. made an element of it, the indictment need not charge such knowledge or intent.” United States v. Behrman, supra, at 288.
Of course, the purpose of every statute would be '“obstructed” b;^ requiring a finding of intent, if we assume that it had a purpose to convict without it. Therefore, the obstruction rationale does not. help us to learn the purpose of the omission by Congress. And since no federal crime .can exist except by force of statute, the reasoning of the Behrman opinion, if read literally, would work far-reaching changes in the composition óf all fеderal crimes. Had such a result been contemplated, it could hardly have escaped mention by a Court which numbered among its members one especially interested and informed concerning the importance of intent in common-law crimes. 15 This might be the more expected since the Behrman holding did call forth his dissent, in which Mr. Justice McReynolds and Mr. Justice Brandéis joined, omitting any such mention.
It was not until recently that the Court took occasion inore explicitly to relate abandonment of the ingredient, of intent, not merely with considerations of expediency in obtaining convictions, nor with the
malum prohibitum
classification of the crime, but with the peculiar nature and quality of the offense. We referred to “. . . a now familiar type of legislation whereby penalties-serve as
Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static. The conclusion reached in the Balint and Behrman cases has our approval and adherence for the circumstances to which it was there applied. A quite different question here is whether we will expand the doctrine of crimes without intent to include those charged here.
Stealing, larceny, and its variants and equivalents, were among the earliest offenses known to the law that existed before legislation;
17
they are invasions of rights of property which stir a. sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which, says Maitland, is “. . . as bad a word as you can give' to man or thing.”
18
State courts of last resort, on whom fall the heaviest bur
Congress, therefore, omitted any express prescription of criminal intent from the enactment before us in the light of an unbroken course of judicial decision in all
The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly 22 admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise, instructed. In such case, absence of. contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.
We hold that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced.
II.
It is suggested, however, that the history and purposes of § 641 imply something more affirmative as to elimination of intent from at least one of the, offenses charged under it in,, this case. The argument does not contest
Congress has been alert to whаt- often is a decisive function of some mental element in crime. It has seen fit to prescribe that an evil state of mind, described variously in one or more such terms as “intentional,” “wilful,” “knowing,” “fraudulent” or “malicious,” will make criminal an otherwise indifferent act,
23
or increase the degree of the offense or its punishment.
24
Also, it has
The section with which we arе here concerned was enacted in 1948, as a consolidation of four former sections of Title 18, as adopted in 1940, which in turn were derived from two sections of the Revised Statutes. The pertinent legislative and judicial history of these anteced
Congress, by the language of this section, has been at pains to incriminate only “knowing” conversions. But, at common law,, there are unwitting acts which constitute conversions. In the civil tort, except for recovery of exemplary damages, the defendant’s knowledge, intent, motive, mistake, and good faith are generally irrelevant. 31 If one takes property which turns out to belong to another, his innocent intent will not shield him from making restitution or indemnity, for. his well-meaning may not be allowed to deprive another of his own.
Had the statute applied to conversions without qualification, it would have made., crimes of all unwitting, inadvertent and unintended conversions. Knowledge, of course, is not identical with intent and may not have been the most apt words of limitation. But knowing conver
It is said, and at first blush the claim has plausibility, that, if we construe the statute to require a mental element as part of criminal conversion, it becomes a meaningless duplication of the offense of stealing, and that conversion can be given meaning only by interpreting it to disregard intention. But here again a broader view of the evolution of these crimes throws a different light on the legislation.
It is not surprising if there is considerable overlapping in the embezzlement, stealing, purloining and knowing conversion grouped in this statute. What has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class and guilty men have escaped through the breaches. The books contain a surfeit of cases drawing fine distinctions between slightly different circumstances under which one may obtain wrongful advantages from another’s property. The codifiers wanted to reach all such instances. Probably every stealing is a conversion, but certainly not every knowing conversion is a stealing. “To steal means to
take away from, one
in lawful possession without right with the
intention to keep wrongfully.”
(Italics added.)
Irving Trust Co.
v.
Leff,
The purpose which we here attribute to Congress pаrallels that of codifiers of common law in England
32
and in the States
33
and demonstrates that the serious prob
„We find no grounds for inferring any affirmative instruction from Congress to eliminate intent from any offense with which this defendant was charged.
III.
As we read the record, this case was tried on the theory that even if criminal intent were essential its presence (a) should be decided by.the court (b) as a presumption
Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. State court authorities cited to the effect that intent is relevant in larcenous crimes are equally emphatic and uniform that it is a jury issue. The settled practice and its reason are well stated by Judge Andrews in
People
v.
Flack,
“It is alike the general rule of law and the dictate of natural justice that to constitute guilt there must be not only a wrongful act, but a criminal intention. Under our system (unless in exceptional cases), both must be found by the jury to justify a conviction.for crime. However clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be rulecl as a question of law, but must always be submitted to the jury. Jurors may be perverse; the ends of justice may be defeated by unrighteous verdicts, but so long as the functions of the judge and jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury. . . .”
It follows that the trial coürt may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a “presumption” a conclusion which a court thinks probable from given facts. The Suрreme Court of Florida, for example, in a larceny case, from .selected circumstances which are present in this case Ras
"... But where the taking is open and there is no subsequent attempt to conceal the property, and' no denial, but an avowal, of the taking a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a conviction is authorized. . . Kemp v. State,146 Fla. 101 , 104,200 So. 368 , 369.
We think presumptive intent has no place in this case. A conclusive presumption which- testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional еffect.
34
In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the. crime. Such incriminating presumptions are not to be improvised by the judiciary. Even congressional power to facilitate convictions by substituting presumptions for proof is not without limit.
Tot
v.
United States,
Moreover, the conclusion supplied by presumption in this instance was one of intent to steal the casings, and-it was based on the mere fact that defendant took them. The court thought the only question was, “Did he intend
Of course, the jury, considering Morissette’s awareness that these casings were on government property, his failure to seek any permission for their removal and his self-interest as a witness, might have disbelieved his profession of innoceht intent and concluded that his assertion of a belief .that the casings were abandoned was an afterthought. Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges. They might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk, and that lack of any conscious- deprivation of property or intentional injury was indicated by Morissette’s good character, the openness of the taking, crushing and transporting of the casings, and the candor with which it was all admitted. They might have refused to brand Morissette as.a thief. Had they done so, that too would have been the end of the matter.
Reversed.
Notes
. 18 U. S. C. § 641, so far as pertinent, reads:
“Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, mоney, or thing of value of the Unitéd States or of any department or agency thereof, or any property ‘made or being made under contract for the United States or any department or agency thereof;
“Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not. more than $1,000 or imprisoned not more' than one year, or both.”
Morissette
v.
United States,
For a brief history and philosophy of this concept in Biblical, Greek, Roman, Continental and Anglo-American law, see Radin, Intent, Criminal, 8 Encyc. Soc. Sci. 126. For more extensive treatment of the development in English Law, see 2 Pollock and Maitland, History of English Law, 448-511. “Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely,to do wrong.” Pound, Introduction to Sayre, Cases on Criminal Law (1927).
In
Williams v. New York,
4 Bl. Comm. 21.
Examples of these texts and their alterations in successive editions in consequence of evolution in the law of “public welfare offenses,” as hereinafter recited, are traced in Sayre, Public Welfare Offenses, 33 Col. L. Rev. 55, 66.
Exceptions came to include sex offenses, such as rape, in which the victim’s actual age was determinative despite defendant’s reasonable belief that .the girl had reached age of consent. Absence of intent also involves such considerations as lack of understanding because of insanity, subnormal mentality, or infancy, lack of volition due to some actual compulsion, or that inferred from doctrines of coverture. Most extensive inroads upon the -requirement of intention, however, are offenses of negligence, such as involuntary .manslaughter or criminal negligence and the whole range of crimes arising from omission of duty. Cf.
Commonwealth
v.
Welansky,
Holmes, The Common Law, considers intent in the chapter on The Criminal Law, and earlier makes the pithy observation: “Even a dog distinguishes between being stumbled over and being kicked.” P. 3. Radin, Intent, Criminal, 8 Encyc. Soc. Sci. 126, 127, points out that in American law “mens rea is not so readily constituted from any wrongful act” as elsewhere.
In the Balint case, Chief Justice Taft recognized this but rather overstated it by making no allowance for exceptions such as those mentioned in n. 8.
This trend and its causes, advantages and dangers have been considered by Sayre, Public Welfare Offenses, 33 Col. L. Rev. 55; Hall, Prolegomena to a Science of Criminal Law, 89 U. of Pa. L. Rev. 549; Hall, Interrelations of Criminal Law and Torts, 43 Col. L. Rev. 753, 967.
The changes in English law are illustrated by Nineteenth Century English cases. ■ In 1814, it was held that one could not be convicted of selling impure foods unless he was aware of the impurities.
Rex
v.
Dixon,
3 M. & S. 11 (K. B. 1814). However, thirty-two years later, in an action to enforce a statutory forfeiture for possession of adulterated tobacco, the respondent was held liable even though he had no knowledge of, or cause to suspect, the adulteration. Countering respondent’s arguments, Baron Parke said, “It is very true that in particular instances it may produce mischief, because an innocent man may suffer from his want of care in not examining the tobacco he has received, and not taking a warranty; but the public inconvenience would be much greater, if in every case.the officers were obliged to prove knowledge. They would be very seldom able to do so.” .
Regina
v.
Woodrow,
15 M. & W. 404, 417 (Exch. 1846). Convenience of the prosecution thus emerged as a rationale. In 1866, a quarry owner was held liable for. the nuisance caused by his workmen dumping refuse into a river, in spite of his plea that he played no active part in the management of the business and knew nothing about the dumping involved. His knowledge or lack of it was deemed irrelevant.
Regina
v.
Stephens,
L. R. 1 Q. B. 702 (1866). Bishop, referring to this decision, says, “The doctrine of this English case may almost be deemed new in the crminal law .... And, properly limited, the doctrinéis eminently worthy to be followed hereafter.” 1 Bishop, New Criminal Law (8th ed. 1892), § 1076. After these decisions, statutes prohibiting the sale of impure or adulterated food were enacted. Adulteration of Food Act (35 & 36 Vict., c. 74, § 2 (1872)); Sale of Food and Drugs Act of 1875 (38 & 39 Vict., c. 63). A conviction under the formеr was sustained in a holding that no guilty knowledge or intent need be
The development of strict criminal liability regardless of intent has been roughly paralleled by an evolution of a strict civil liability for consequences regardless of fault in certain relationships, as shown by Workmen’s Compensation Acts, and by vicarious liability for fault of others as evidenced by various Motor Vehicle Acts.
Consequences of a general abolition of intent as an ingredient of serious crimes have aroused the concern of responsible and disinterested students of penology. Of course, they would not justify judicial disregard of a clear command to that effect from Congress, but they do admonish us to caution in assuming that Congress, without clear expression, intends in any instance to do so.
Radin, Intent, Criminal, 8 Encyc. Soc. Sci. 126, 130, says, “. . . as long as in popular belief intention and the freedom of the will are
Sayre, Public Welfare Offenses, 33 Col. L. Rev. 55, 56, says: “To inflict substantial punishment upon one who is morally entirely innocent, who caused injury through reasonable mistake or pure accident, would so outrage the feelings of the community as to nullify its own enforcement.”
Hall, Prolegomena to a Science of Criminal Law, 89 U. of Pa. L. Rev. 549, 569, appears somewhat less disturbed by the trend, if properly limited, but, as to so-called public welfare crimes, suggests that “There is no reason to continue to believe that the present mode of dealing with these offenses is the best solution obtainable, or that we must be content with this sacrifice of established principles. The raising of a presumption of knowledge might- be an improvement.” (Italics added.)
In
Felton
v.
United States,
Holmes, The Common Law.
For the place of the mental element in offenses against the revenues, see
Spies
v.
United States,
2 Russell on Crime (10th ed., Turner, 1950) 1037.
2 Pollock and Maitland, History of English Law, 465.
Examples of decision in diverse jurisdictions may be culled from any digest. Most nearly in point are
Johnson
v. State,
Others of like purport are
Farzley
v.
State,
Sayre, Public Welfare Offenses, 33 Col. L. Rev. 55, 73, 84, cites and classifies a large number of cases and concludes that they fall .roughly into subdivisions of (1) illegal sales of intoxicating liquor, (2) sales of impure or adulterated food or drugs, (3) sales of misbranded articles, (4) violations of antinarcotic Acts, (5) criminal nuisances, (6) violations of traffic regulations, (7) violations of motor-vehicle laws, and (8) violations of general police regulations, passed for the safety, health or well-being of the community.
Sayre points out that in criminal syndicalism or sedition eases, where the pressure to convict is strong, it has been accomplished by dispensing with the element of intent, in some instances by analogy with the public welfare offense. Examples are
State
v.
Hennessy,
United States
v.
Hudson and Goodwin,
18 U. S. C. § 81; Arson: . . willfully and maliciously . . 18 U. S. C. § 113, Assault: “(a) . . . with intent to commit murder or rape ....(b) ... with intent to commit any felony,’exсept murder or rape . . .”; 18 U. S. C. § 152, Bankruptcy — concealment of assets, false oaths and claims, bribery: . . knowingly and fraudulently . . 18 U. S. C. § 201, Bribery and Graft: “. . . with intent to influence . . ."; 18 U. S. C. § 471, Counterfeiting and Forgery: ". . . with intent to defraud . . ."; 18 U. S. C. § 594, Intimidation of voters: ". . for the purpose of . . ."; 18 U. S. C. § 1072, Concealing escaped prisoner: ". . . willfully . . . 61 Stat. 151, 29 U. S. C. § 162, Interference with a member of the National Labor Relations Board or an agent of the Board in his performance of his duties. . willfully . . 52 Stat. 1069, 29 U. S. C. § 216 (a), Violations of provisions of Fair Labor Standards Act: . willfully . . 37 Stat. 251, 21 U. S. C. § 23, Packing or selling misbranded barrels of apples: . knowingly . . . .”
18 U. S. C. § 1112, Manslaughter, . . the unlawful killing of a human being without malice,” if voluntary, carries a maximum penalty of imprisonment not to exceed ten years. If the killing is “with malice aforethought,” the crime is murder, 18 U. S. C. § 1111, and, if of the first degree, punishable by death or life imprisonment, or, if of the second degree, punishable by imprisonment for any term of years or life.
18 U. S. C. § 242;
Screws
v.
United States,
I. R. C. §§ 145 (a), 145 (b), 53 Stat. 62, as amended, 26 U. S. C. §§ 145 (a), 145 (b), as construed in
Spies
v.
United States,
U. S. Const., Art. III, § 3, cl. 1.
This provision was to prevent incrimination of mere mental operations such as “compassing” the'death of the King. See
Cramer
v.
United States,
The Reviser’s Note to 18 U. S. C. § 641 states that it is derived from 18 U. S. C. (1940 ed.) §§ 82, 87, 100, and 101 which, in turn, are from Rev. Stat. §§ 5438 and 5439. We shall consider only the 1940 code, sections and their interpretations.
18 U. S. C. (1940 ed.) § 82 reads:
“Whoéver shall take and carry away or take for his use, or for the use of another, with- intent to steal or purloin . . . any property of the United States . . . shall be punished as follows . . . .”
In
United States
v.
Anderson,
“It has been before the courts in very few cases. But such courts as have had cases under it, including our own Ninth Circuit Court of Appeals, have held that the object of the section is to introduce the crime of larceny into the Federal Criminal Code.
“In Frach v. Mass, 9 Cir., 1939,
“This means of course, that in interpreting the statute, we may apply the principles governing the common law crime of larceny, as interpreted by the courts of various states.”
United States
v.
Trinder,
“Upon principle and authority there was
no
stealing but merely trespass; secret borrowing. At common law and likewise by the federal statute (18 USCA § 82) adopting common-law terms, stealing in general imports larceny; that is, felonious taking and intent to permanently deprive the owner of his property.”
18 U. S. C. (1940 ed.) § 87, entitled “Embezzling arms and stores,” provides:
“Whoever shall steal, embezzle, or knowingly apply to his own use, or unlawfully sell, convey, or dispose of, any ordnance, arms, ammunition, clothing, subsistence, stores, money, or other property of the United States, furnished or to be used for the military or naval
No cases appear to have been decided relating to the element of intent in the acts proscribed in that section.
18 U. S. C. (1940 ed.) § 100, “Embezzling public moneys or other property,” states that:
“Whoever shall embezzle, steal, or purloin any money, property, rеcord, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be fined not more than $5,000, or imprisoned not more than five years, or both.”
The only noted case of consequence is
Crabb
v.
Zerbst,
The Court of Appeals rejected his argument, holding that the crime of “stealing” in § 100 was separate and distinct from the offense specified in § 99, on the ground that § 100 was a broadening of the common-law crime of larceny to foreclose any avenue by which one might, in the process of pleading, escape conviction for one offense by proving that he had committed another only a hair’s breadth different. ■ .
In the course of its opinion, it advanced the following pertinent observations:
“That felonious taking and carrying away of property which may be the subject of the offense constitutes the common law offense of larceny cannot be disputed. . . . However, it is doubtful if at >com- • mon law any fixed definition or formula [as to the meaning • of ‘larceny’] was not strained in its application to some of the cases clearly constituting the offense. Modern criminal codes treat the offense in various ways. Some define thé offense by following the old cases and. are merely declaratory of the common law, while others
“As pointed out above, the modern tendency is to broaden the offense of larceny, by whatever name it may be called, to include such related offenses as would tend to complicate prosecutions under strict pleading and practice. In some of these statutes the offense is denominated ‘theft’ оr ‘stealing.’ No statute offers a clearer example of compromise between the common law and the modern code than the two sections here involved. Section 46 [18 U. S. C. (1940 ed.) § 99] deals with robbery and larceny, the description of the latter being taken from the common law. Section 47 [18 U. S. C. (1940 ed.) § 100] denounces the related offenses which might be included with those described in section 46 under a code practice seeking to avoid the pitfalls of technical pleading. In it the offense of embezzlement is included by name,-without definition. Then to cover such cases as may shade into larceny, as well as any new situation which may arise under changing modern conditions and not envisioned under the common law, it'adds the words
steal or 'purloin
.... Stealing, having no common law definition to restrict its meaning as an offense, is commonly used to denote any dishonest transaction whereby one person obtains that which rightfully belongs to another, and deprives the owner of the rights and benefits of ownership, but may or may not involve the element of stealth usually attributed to the word
purloin. .
. . Thus, in any case involving larceny as defined by the common law, section 46 [18 U. S. C. (1940 ed.) § 99] would apply. Where the offense is embezzlement, or its nature so doubtful as to' fall between larceny and embezzlement, it may be prosecuted under section 47 [18 U. S. C. (1940 ed.) § 100].”
The reference in Crabb v. Zerbst to 18 U. S. C. (1940 ed.) § 99, the robbery and larceny statute then operative, suggests examination óf its successor in today’s code. For purpose of clarification, that section states that:
“Whoever shall rob another of any kind or description of personal
The Reviser’s Note to 18 U. S. C. § 641 makes no mention of it as a successor to that section. The present robbery statute is 18 U. S. C. § 2112, “Personal property of United States,” providing that:
“Whoever robs another of any kind or description of personal property belonging to the United States, shall be imprisoned not more than fifteen years.”
The Reviser’s Note to that section recites that it is derived from § 99 of the 1940 Code, and “That portion of said section 99 relating to felonious taking was omitted as covered by section 641 of this title,” which makes it clear that, notwithstanding the absence of any reference to 18 U. S. C. (1940 ed.) § 99 in the Note to 18 U. S. C. § 641, the crime of larceny by a felonious taking and carrying away has been transported directly from the former into the latter.
18 U. S. C. (1940 ed.) § 101 is the forerunner of that part of present § 641 dealing with receiving stolen property, and has no application to the problem at hand.
The history of § 641 demonstrates that it was to apply to acts which constituted larceny or embezzlement at common law and also acts which shade .into those crimes but which, most strictly considered, might no.t be found to fit their fixed definitions. It is also pertinent to note that it renders one subject to its penalty who “knowingly Converts to his own use” property of the United States. The word “converts” does not appear in any of its predecessors. 18 U. S. C. (1940 ed.) § 82 is applicable to one who “take[s] for- his [own] use . . . with intent to steal or purloin . . . .” 18 U. S. C. (1940 ed.) § 87 uses the words “knowingly apply to his own use.” Neither 18 U. S. C. (1940 ed.) §§ 99, 100, nor 101 has any words resembling “knowingly converts to his own use.” The 1948 Revision was not intended to create new crimes but to recodify those then in existence. We find no suggestion that a guilty intent was not a part of each crime now embodied in § 641.
18 U. S. C. §§ 1, 641.
Had the indictment been limited to a charge in the words of the statute, it would have been defective if, in the light of the common law, the statute itself failed to set forth expressly, fully, and clearly all elements necessary, to constitute the offense.
United States
v.
Carll,
Harker
v.
Dement,
9 Gill (Md.) 7,
The Larceny Act of 1916, 6 & 7 Geo. V, c. 50, an Act'“to consolidate and simplify the Law relating to Larсeny triable on Indictment and Kindred Offences,” provides:
“1. For the purposes of this Act—
“(1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:
“Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner . . . .”
For the growth and development of the crime of larceny in England, see 2 Russell on Crime (10th ed., Turner, 1950), 1037-1222, from which the material above was taken.
N. Y. Penal Law, § 1290, defines larceny as follows:
“A person.who, with the intent to deprive or defraud another .of ' the use and benefit of property .or to appropriate the same to the use
The same section provides further that it shall be no defense to a prosecution that:
“2. The accused in the first instance obtained possession of, of title to, such property lawfully, provided he subsequently wrongfully withheld or appropriated such property to his own use or the use of any person not entitled to the use and' bénefit of such property . . . .”
The Historical Note to - that section discloses that it represents an attempt to -abolish the distinctions between kinds of larcenies. Laws 1942, c. 732, § 1, provided:
“It is hereby declared as the public policy of the state that the best interests of the people of the state will be served, and confusion and injustice avoided, by eliminating and abolishing the. distinctions which' have hitherto differentiated one sort of theft from another, each of which, under section twelve hundred apd ninety of the penal Jaw, was denominated a larceny, to wit: common law larceny by asportation, common law larceny by trick and device, obtaining property by false pretenses, and embezzlement.”
Cf. Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47 Harv. L. Rev. 59; Morgan, Some Observations Concerning Presumption, 44 Harv. L. Rev. 906.