People v. Quinn

487 N.W.2d 194

Mich.

1992

Check Treatment

PEOPLE v QUINN

Docket No. 91667

Supreme Court of Michigan

July 14, 1992

440 MICH 178

Argued March 4, 1992 (Calendar No. 6).

Kеvin Quinn was convicted by a jury in the Oakland Circuit Court, Alice L. Gilbert, J., of transporting or possessing a loaded firearm, other than a pistol, in a vehicle. The Court of Appeals, SULLIVAN, P.J., and MAHER and GRIFFIN, JJ., reversed in an opinion per curiam, holding that knowledge that the firearm was loaded is a necessary element of the offense, MCL 750.227c; MSA 28.424(3), and that because the state failed to prove that the defendant knew the firearm was loaded, the evidence was insufficient to support the conviction (Docket No. 120672). The people appeal.

In an opinion by Justice BOYLE, joined by Chief Justice CAVANAGH, and Justices BRICKLEY, RILEY, GRIFFIN, and MALLETT, the Supreme Court held:

Knowledge that a firearm is loaded is not an element of the offense of transporting or possessing a loaded firearm, other than a pistol, in a vehicle.

1. Where a criminal statute does not codify a common-law offense, and omits the elеment of knowledge or intent, it is the intent of the Legislature that determines whether knowledge must be proven as an element of the offense or whether the offender will be held liable regardless of what was known. A state may decide, under its police power, that public policy requires certain acts or omissions to be punished regardless of the actor‘s intent. While statutes creating strict liability regarding all their elements are not favored, where a statute requires a criminal mind for some but not all of its elements, it is not one of strict liability. True strict liability crimes are proper under certain circumstances, however. Thus, the Legislature may define an act to make it criminal without defining the actor‘s knowledge as an element of the offense.

2. MCL 750.227c; MSA 28.424(3) prohibits the transportation or possession of a loaded firearm other than a pistol in a motor vehicle. The legislative history of the statute evidences an intent to protect the public by regulatory sanction and to hold violators liable for knowing transportation of a firearm that in fact is loaded, irrespective of whether a violator actually knew that the firearm was loaded, because it is the violator‘s duty to ascertain this fact. The duty imposed by the statute is the duty to protect the public safety by guarding against the fortuity of accidental or intentional discharge.

3. Knowledge that a firearm is loaded is not an element of § 227c. Under the statute, those who transport firearms in vehicles have a duty to inspect them before transporting and, if loaded, to unload them. In this case, no evidence was presented that the defendant actually placed the loaded firearm into the vehicle. However, as the driver of the car transporting the firearm, he had the opportunity to ascertain whether it was loaded, and was in the best position to protect against the dangers recognized in § 227c.

Justice LEVIN, concurring in the reversal of the decision of the Court of Appeals, stated that before transporting or possessing a firearm other than a pistol in a motor vehicle a citizen must see to it that the firearm is taken down, enclosed in a case, or placed in the trunk of the vehicle or in a place inaccessible from the interior of the vehicle, and also must assure that it is unloaded. Consistent with the statutory purpose to impose such obligations, a prima facie case of violation of the statutory proscriptions is made on evidence tending to show that the accused transported or possessed a loaded firearm in a vehicle.

Knowledge that the firearm is loaded is an element of the offense, and the prosecution has the burden of establishing and persuading the trier of fact beyond a reasonable doubt that the accused not only knowingly transported or possessed a firearm, but also that it was done with the knowledge that the firearm was loaded. It would be reasonable to conclude that the prosecutor establishes a prima facie case of knowledge upon adducing evidentiary facts tending to show that the accused transported or possessed a loaded firearm other than a pistol in a motor vehicle, without proffering additional evidence respecting knowledge that the firearm was loaded. There is no need to eliminate knowledge as an element of the offense in order to effectively enforce this legislation, which was not aimed at any problem confronting prosecutors in estаblishing knowledge, but rather at the absence of any legislation proscribing the carrying of loaded firearms other than pistols in motor vehicles in urban areas.

Reversed.

189 Mich App 225; 471 NW2d 654 (1991) reversed.

WEAPONS — POSSESSION OF A LOADED FIREARM IN A VEHICLE — SCIENTER.

Knowledge that a firearm is loaded is not an element of the offense of transporting or possessing a loaded firearm, other than a pistol, in a vehicle (MCL 750.227c; MSA 28.424[3]).

Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Richard Thompson, Prosecuting Attorney, and Michael J. Modelski, Chief, Appellate Division, for the people.

Arthur James Rubiner for the defendant.

OPINION OF THE COURT

BOYLE, J. We granted leave in this case to decide whether under MCL 750.227c; MSA 28.424(3), knowledge that a firearm is loaded¹ is an element of the offense of transporting or possessing a loaded firearm other than a pistol in or upon a vehicle.² The Court of Appeals set aside the defendant‘s conviction and, because jeopardy precludes retrial following reversal for insufficiency of the

evidence,³ dismissed the charge. The Court held that knowledge that the firearm was loaded is a necessary element of the offense and that the state had failed to prove that the defendant knew thаt the firearm was loaded.

We hold that the Legislature did not intend that knowledge that a firearm is loaded is an element of the offense. We reverse the decision of the Court of Appeals and reinstate the defendant‘s conviction.

I

On March 3, 1987, the defendant and several other persons were firing a variety of firearms on state game land in rural Oakland County approximately twenty-five to thirty miles from the defendant‘s home. A neighbor, an off-duty police detective, heard the shooting and became concerned that, because there were so many shots, automatic weapons possibly were being fired. The off-duty officer drove to an area on the state-owned property where he saw several males shooting what appeared to him to be shotguns and automatic assault-type rifles. He also observed three four-wheel-drive vehicles that contained several rifles and shotguns laid out on the open tailgates. He asked one of the persons present to stop firing because the noise was scaring the livestock.

The detective returned to his home and telephoned the Michigan State Police. Before a trooper‘s arrival, the detective observed the vehicles leaving the area and was able to jot down the license tag numbers of two of the vehicles.

These vehicles, a Chevrolet Blazer and a four-wheel-drive Toyota, were eventually stopped by an Oakland County Sheriff‘s deputy at Dixie Highway and Levon, one street north of Interstate 75, approximately six to seven miles from the land where the occupants had been firing the firearms. The defendant, Kevin Quinn, was the driver of the Toyota; two other persons rode with him, one in the front passenger seаt, and one in the rear. The deputy contacted the troopers assigned to the complaint.

Shortly after their arrival, the troopers looked into the rear windows of both vehicles and saw many firearms⁴ in the back and on both back seats of each vehicle. Closer inspection disclosed that one of the firearms found in the Toyota, a Calico M-100 carbine .22 calibre assault rifle, was loaded. It contained one round of ammunition in its chamber. In addition to the firearms found, the officers located seventeen ammunition clips in the Chevrolet Blazer and a total of 883 live rounds of ammunition in both vehicles.

After being apprised of his Miranda⁵ rights, Quinn initially admitted owning only seven of the firearms found in the vehicles. However, he later told the officers that they “should just charge him with all the weapons because in fact they were all his. They did not belong to anyone else.”

Mr. Quinn was convicted by a jury of trаnsporting or possessing a loaded firearm other than a pistol in or upon a vehicle, pursuant to MCL 750.227c; MSA 28.424(3), and was sentenced to a term of imprisonment of forty-five days. He appealed, and the Court of Appeals, in a per curiam decision, vacated the conviction and dismissed the charge.

189 Mich App 225, 227; .

The premise of the Court of Appeals opinion was that MCL 750.227c; MSA 28.424(3), “is the counterpart” of Michigan‘s statutory prohibition against carrying a concealed weapon, MCL 750.227; MSA 28.424,⁶ being “similar in both wording and purpose.”

189 Mich App 227. Because a knowledge element had been read into the latter statute, , the Court concluded that it was necessary to engraft a knowledge requirement as an element of a violation of MCL 750.227c; MSA 28.424(3). Because the state had not proved that the defendant knew the gun was loaded, the panel held that the evidence was insufficient to support the conviction.

We granted the prosecution‘s application for leave to appeal.

439 Mich 868 (1991).

A

While the defendant offers а passing reference to “due process” requirements, the respective parties’ analyses, like that of the Court of Appeals, actually focus on whether the Legislature intended to incorporate an element of knowledge into the statute. Thus, the defendant contends that, although scienter is not expressly mentioned in the statute, knowledge that the firearm is loaded should nonetheless be required “to limit the statute‘s application to knowing, rather than innocent, violations of the statute‘s provisions.”

Lane, 102 Mich App 15.

Stressing that the people agree that knowledge that a firearm is present in the vehicle is an element of the offense,⁸ the people respond that there is nothing in the language or legislative history of the statute evidencing the Legislature‘s intent to create a “double knowledge” requirement that would require proof not only of knоwledge of the presence of the firearm, but also proof that defendant knew that the firearm transported was loaded. In sum, the people contend that the interpretation of the statute advanced comports with the legislative intent to create an affirmative duty for those who knowingly possess or transport firearms in their vehicles to ensure that the firearms are unloaded.

We agree. The construction adopted today makes those who transport firearms ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍responsible for their safe transportation, protecting those in-

side and outside the vehicle against the dangers of discharge, without posing the danger of conviction for those who “transport” firearms without knowledge of their presence.

II

We deal with this issue as a matter of statutory construction. We observe at the outset, however, that while the wisdom and efficiency of excluding elements of knowledge from the definition of a crime has been questioned,⁹ the United States Supreme Court has recognized as a general matter that the constitution does not preclude the enactment of even strict liability criminal statutes.

Lambert v California, 355 US 225; 78 S Ct 240; 2 L Ed 2d 228 (1957). Thus, where the Legislature in enacting a statute has omitted language indicating that fault is a necessary ingredient, the challenge typically focuses, as here, not on the constitutionality of the enactment, but rather on whether the intent of the Legislature was actually to require some fault as a predicate to finding guilt, irrespective of the failure to expressly so state. See LaFave & Scott, Criminal Law (2d ed), § 3.8, p 243.

In the seminal case of

Morissette v United States, 342 US 246; 72 S Ct 240; 96 L Ed 288 (1952), the United States Supreme Court concluded that where the criminal statute is a codification of

the common law, and where mens rea was a necessary element of the crime at common law, the Court will not interpret the statute as dispensing with knowledge as a necessary element. The Court stated, “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion.”

Id. at 250. Distinguishing and approving , and , which declined to import a knowledge requirement into statutes creating public welfare offenses, and citing Justice COOLEY‘S statement that the purpose of imposing criminal penalties in this class of regulation is “‘to require a degree of diligence for the protection of the public which shall render violation impossible,‘” , the Court refused to extend the doctrine to crimes codifying common-law offenses.

Thus, where the offense in question does not codify a common-law offense and the statute omits the element of knowledge or intent, the United States Supreme Court examines the intent of the Legislature to determine whether it intended that knowledge be proven as an element of the offense, or whether it intended to hold the offender liable regardless of what he knew or did not know.¹⁰

We are persuaded that our interpretation of the Legislature‘s intent in enacting this statute falls comfortably within the parameters of federal authority holding that a state may decide under the police power that public policy requires that cer-

tain acts or omissions to act be punished regardless of the actor‘s intent.

Shevlin-Carpenter Co v Minnesota, 218 US 57; 30 S Ct 663; 54 L Ed 930 (1910). In these instances, the actor “shall do them at his peril and will not be heard to plead in defense good faith or ignorance.” . The statute does not punish crimes mala in se but, rather, regulates conduct under the state‘s police power to promote the social good, a course the Legislature may elect without requiring mens rea. This construction also compоrts with the purpose of public welfare regulation to protect those who are otherwise unable to protect themselves by placing “the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.” , citing Balint.

In summary, the United States Supreme Court, in interpreting legislative intent regarding the element of fault, has applied an analytical framework that considers each separate element of the statute. Statutes creating strict liability regarding all their elements are not favored. However, where a statute requires a criminal mind for some but not all of its elements, it is not one of strict liability,

United States v Freed, 401 US 601, 612; 91 S Ct 1112; 28 L Ed 2d 356 (1971).¹¹ In such a case, the Legislature is not imposing liability without any fault at all; instead, it has determined that regarding that element, responsibility for the protection of the public should be placed on the

person who can best avoid the harm sought to be prevented — the actor himself.

III

That true strict liability crimes are proper under some circumstances is also well settled in Michigan. The Legislature may impose certain penalties regardless of the actor‘s criminal intent and regardless of what the actor actually knew or did not know.¹² The initial development of this method of interpretation of statutes in the nature of police regulation began with laws concerning adulterated food, commerce, and liquor. Familiar contemporary examples include the fact that a reasonable or good-faith mistake regarding a victim‘s age is not a defense to third-degree criminal sexual conduct under MCL 750.520d(1)(a); MSA 28.788(4)(1)(a),

People v Cash, 419 Mich 230; 351 NW2d 822 (1984), that the prosecution need not prove as an element of the offense of carrying a concealed weapon, MCL 750.227; MSA 28.424, that the defendant knew his permit was expired, , and that a defendant need not know the quantity of narcotics possessed to be found guilty of possession of a controlled substance under MCL 333.7401; MSA 14.15(7401), , vacated in part ; , remanded on other grounds .

We have specifically acknowledged that, in some instances, requiring the prosecutor to prove knowledge would frustrate the regulatory purposes of the statute. Thus, in

People v Hatinger, 174 Mich 333, 335; , under a statute forbidding the sale of intoxicating liquor, this Court stated that “[l]aws 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.” Thus, statutes making acts criminal regardless of intent are “‘enacted and . . . sustained, for the most part, on grounds of necessity.‘” ; , accord Snowberger, ; .¹³

Contrary to the defendant‘s assertion, it is clear under both federal and state authority that the Legislature, as part of its police powers, may de-

fine an act to make it criminal without defining the actor‘s knowledge as an element of the offense.

IV

MCL 750.227c; MSA 28.424(3) provides:

(1) Except as otherwise permitted by law, a person shall not transport or possess in or upon a sailboat or a motor vehicle, aircraft, motorboat, or any other vehicle propelled by mechanical means, a firearm, other than a pistol, which is loaded.

(2) A person who violates this section is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years, or a fine of not more than $2,500.00, or both.

(3) This section does not apply to a person who violates section 10(1)(g) of chapter II of Act No. 286 of the Public Acts of 1929, as amended, being section 312.10 of the Michigan Compiled Laws.

MCL 750.2; MSA 28.192 also provides:

The rule that a penal statute is to be strictly construed shall not apply to this act or any of the provisions thereof. All provisions of this act shall be construed according to the fair import of their terms, to promotе justice and to effect the objects of the law.

V

When sister jurisdictions have been faced with this question, they have decided the issue as we do today — where the Legislature did not require knowledge that the firearm being transported or possessed is loaded, knowledge is not an element of the offense. In

People v Dillard, 154 Cal App 3d 261; 201 Cal Rptr 136 (1984), the California Court of Appeals held that a statute that prohibits carrying a loaded firearm in a vehicle¹⁹ did not require knowledge that the firearm was loaded.

The court characterized the statute as “a quintessential public welfare statute. . . .”

Id. at 266. According to the court, the legislature correctly placed the burden of avoiding harm on the person who is in the best position to avoid it.²⁰ The court, quoting Morissette, stated:

To avoid the sanction of the law, appellаnt need only have taken care to make certain that the weapon he carried was in fact unloaded — “no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.” [Dillard at 267.]

The California Court of Appeals also addressed the mistake of fact defense that the defendant had attempted to use at trial. It said that since knowledge that the gun was loaded was not an element of the offense, mistake of fact regarding the firearm‘s condition was not a defense. Moreover, the court, in dictum, noted that the defendant had not attempted to show that he had made an effort to determine whether the firearm was loaded or not. “A mere belief, unsupported by a showing of due care and bona fide, reasonable effort to ascertain thе facts, is insufficient to constitute a mistake of fact defense.”

Id. The court did, however, state that if the defendant did not know that he possessed the firearm, mistake with regard to that fact would be a defense. We agree with the California Court of Appeals.²¹

VI

Whether approached with the guidance of federal courts and sister jurisdictions, the methodology of our own precedent, or the factor analysis distilled by LaFave and Scott, we conclude that knowledge that a firearm is loaded is not an element of MCL 750.227c; MSA 28.424(3).

The legislative history “throw[s] some light on the matter.” LaFave & Scott, supra, § 3.8, p 244. The Legislature realized there was a loophole in the existing statutes. Furthermore, it realized the difficulty of proving the unlawful intent element under MCL 750.226; MSA 28.423, and noted that the proposed statute did not include that element. Finally, it realized the dangers associated with transporting a loaded firearm in a vehicle.²²

Section 227c “promote[s] justice and . . . effect[s] the objects of the law”²³ by imposing on those who transport firearms in their vehicles the duty to ensure that those firearms are unloaded. Section 227d also does this. When these statutes are read

together, the intent of the Legislature is clear. The person who transports a firearm must inspect it before transporting it.

It is true that the people presented no evidence regarding who actually placed the Calico M-100 into the defendant‘s Toyota. However, Kevin Quinn, the driver of the car transporting the firearm, certainly had an “opportunity to ascertain the true facts.” LaFave & Scott, supra at 244. By simply removing the clip and pulling back the slide of the Calico M-100 to ensure that it was not loaded, he was in the best position to protect against the dangers that thе Legislature considered when it enacted MCL 750.227c; MSA 28.424(3). This involves “‘no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.‘” Dillard at 267.

Accordingly, we reverse the decision of the Court of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Appeals and reinstate the defendant‘s conviction.

CAVANAGH, C.J., and BRICKLEY, RILEY, GRIFFIN, and MALLETT, JJ., concurred with BOYLE, J.

LEVIN, J. (concurring in the reversal of the Court of Appeals). The statute proscribes as a ninety-day misdemeanor transporting or possessing a loaded firearm other than a pistol in a motor vehicle.¹ It further proscribes, as a two-year misde-

meanor, transporting or possessing a firearm, loaded or unloaded, except “[t]aken down,” “[e]nclosed in a case,” “[c]arried in the trunk of the vehicle,” or “[i]naccessible from the interior of the vehicle.”²

I agree with the majority that the statute imposes on a person who would so transport or рossess a firearm the obligations both to so render the firearm inaccessible and to unload the firearm. Before transporting or possessing a firearm other than a pistol in a motor vehicle a citizen is thus obliged to see to it that the firearm is “taken down,” or enclosed in a case, or placed in the trunk of the vehicle, or in a place inaccessible from the interior of the vehicle, and also to assure that it is unloaded.

Consistent with the statutory purpose to impose such obligations, a prima facie case of violation of the statutory proscriptions is made on evidence tending to show that the accused transported or possessed a loaded firearm in a vehicle. So far, the majority and I agree.

I write separately because I would hold that knowledge that the firearm is loaded is an element of the offеnse. Although the prosecutor makes a prima facie case on evidence tending to show that a loaded firearm was so transported or possessed, he has the burden of establishing and persuading the trier of fact beyond a reasonable doubt that the accused not only knowingly transported or possessed the firearm but also that he did so knowing that the firearm was loaded.³

The law does not impose on the plaintiff, in a civil or criminal case, an impossible burden of proof. It aids the plaintiff by permitting the trier of fact to infer knowledge or scienter from evidentiary facts that reasonably permit such an inference to be drawn.⁴ I would thus agree that it is reasonable to also conclude that the prosecutor makes a prima facie case of knowledge that the firearm was loaded upon adducing evidentiary facts tending to show no more than that the accused transported or possessed in a motor vehicle a loaded firearm other than a pistol, without proferring additional evidence respecting knowledge that the firearm was loaded.

On the facts of this case, this is somewhat academic. The evidence was overwhelming that Kevin Quinn, who was sentenced to serve a term of forty-five days, committed the lesser offense by transporting, loaded or unloaded, a large quantity of firearms readily accessible from the interior of the vehicle.

In another case, however, the accused might

offer evidence that he dutifully took the firearm apart and carefully ascertained that it was unloaded before storing it in a case in the trunk of the vehicle. In the months following, he did not recheck to determine whether the firearm was still in the case or trunk, let alone whether it was loaded. Somehow or other, an еrrant child, or companion, or other person, “must have” “borrowed” the firearm and returned it without the accused‘s knowledge to the case and the trunk loaded with a cartridge.

Unless the duty imposed by the statute requires a person to recheck the firearm to determine whether it is still unloaded every time he enters the vehicle, the trier of fact would, if persuaded by such an exculpatory factual recital, be justified in finding that the statute was not violated. Under the majority‘s construction, the judge is obliged to instruct the jury that it must find the defendant guilty even if it believes the exculpatory recital.

The trier of fact, the jury in many cases, is bright enough to see through a defense asserting lack of knowledge where such defense is unwarranted. There is no need to eliminate knowledge as an element of the offense in order to effectively enforce this legislation, which was not aimed at any problem confronting prosecutors in establishing knowledge, but rather at the absence of any legislation proscribing the carrying of loaded firearms other than pistols in motor vehicles in urban areas.⁵

following:

* * *

Transport, or have in possession, in or upon an automobile, aircraft, motorboat, sailboat, or any other vehicle propelled by mechanical means, while in an area frequented by wild birds and wild animals, a gun or other firearm, except a pistol or revolver, unless the gun or firearm is unloaded in both the barrel and magazine; or a bow, unless it is unstrung. [MCL 312.10(1)(g); MSA 13.1339(1)(g).]

Notes

The prosecutor does not contest that the statute requires proof of knowledge of the presence of the firearm in the vehicle. We assume arguendo that proof of knowledge of the presence of the firearm is an element of the offense in question, recognizing that the question has not been decided by this Court or the Court of Appeals. 1981 PA 103, adding § 227d to the Penal Code:

(1) Except as otherwise permitted by law, a person shall not transport or possess in or upon a motor vehicle or any self-propelled vehicle designed for land travel a firearm, other than a pistol, unless the firearm is unloaded and is 1 or more of the following:

(a) Taken down.

(b) Enclosed in a case.

(d) Inaccessible from the interior of the vehicle.

MCL 750.227c; MSA 28.424(3) provides:

(1) Except as otherwise permitted by law, a person shall not transport or possess in or upon a sailboat or a motor vehicle, aircraft, motorboat, or any other vehicle propelled by mechanical means, a firearm, other than a pistol, which is loaded.

(2) A person who violates this section is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years, or a fine of not more than $2,500.00, or both.

(3) This section does not apply to a person who violates section 10(1)(g) of chapter II of Act No. 286 of the Public Acts of 1929, as amended, being section 312.10 of the Michigan Compiled Laws.

(2) A person who violates this section is guilty of a misdemeanor, punishable by imprisonment for not more than 90 days, or a fine of not more than $100.00, or both. [MCL 750.227d; MSA 28.424(4).]

2 1981 PA 103, adding § 227c to the Penal Code:

(2) A person who violates this section is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years, or a fine of not more than $2,500.00, or both.

(3) This section does not apply to a person who violates section 10(1)(g) of chapter II of Act No. 286 of the Public Acts of 1929, as amended, being section 312.10 of the Michigan Compiled Laws. [MCL 750.227c; MSA 28.424(3).]

See n 5 for text of § 10(1)(g) referred to in § 227c(3).

. A jury finding that the accused did not ascertain that the firearm was unloaded before it was stored in the vehicle, would tend to discredit a claim that the accused did not know, when the firearm was transported or possessed, that it was loaded.

In the Toyota, the officers found four firearms and a bayonet. The firearms found were: (1) a loaded Calico M-100 carbine .22 calibre assault rifle, (2) an unloaded Armalite AR-180 5.56 calibre assault rifle, (3) an unloaded FEG 7.62 calibre assault rifle, and (4) an unloaded Valmet M-76 5.56 calibre assault rifle. Six firearms were found in the Chevrolet Blazer: (1) a loaded Winchester Defender 12-gauge shotgun, (2) an unloaded Ithaca 12-gauge shotgun, (3) an unloaded H & K Model 94 9 mm assault rifle, (4) an unloaded Colt Model AR-15 .223 calibre assault rifle, (5) an unloaded Colt Model AR-15 9 mm assault rifle, and (6) an unloaded Winchester Defender 12-gauge shotgun. See, generally, ; ; 9 Wigmore, Evidence (Chadbourn rev), § 2486, p 288; 2 McCormick, Evidence (4th ed), §§ 337, 342, 343, pp 427, 449-460.

. See majority ante, pp 191-194, discussing § 10(1)(g) of the Game Law (MCL 311.1 et seq.; MSA 13.1321 et seq., which provided that it is a ninety-day misdemeanor to transport, or have in possession, in a motor vehicle a loaded firearm in an area frequented by wild birds or ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍wild animals, and the legislative purpose to proscribe transporting or possessing loaded firearms in motor vehicles in an urban area. Section 10(1)(g) provides:

Unless otherwise specified, a person shall not do any of the

MCL 750.227; MSA 28.424 provides:

(1) A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person.

(2) A person shall not carry a pistоl concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license.

(3) A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.

We do not here express any opinion regarding the court‘s statement in Lane that scienter is necessary to prevent overbreadth.

In light of the prosecutor‘s concession, we do not deal with the more controversial issues involved in true strict liability crimes, i.e., statutes requiring no mens rea at all.

The Model Penal Code “is vigorously anti-strict liability, рroviding that there are no strict liability ‘crimes’ within the Code, only strict liability ‘violations’ . . . .” Singer, The resurgence of mens rea: III — The rise and fall of strict criminal liability, 30 BCLR 337, 381 (1989). Singer points out that, under the Model Penal Code, a violation is an act for which imprisonment is not a penalty. Crimes, however, do involve imprisonment as a penalty.

According to LaFave and Scott, “The consensus can be summarily stated: to punish conduct without reference to the actor‘s state of mind is both inefficacious and unjust.” LaFave & Scott, Criminal Law (2d ed), § 3.8, p 248, quoting Packer, Mens rea and the Supreme Court, 1962 Sup Ct R 107, 109.

See ; ; ; , reh den ; ; , reh den ; ; .

Brennan, J., concurring. Thus, in Bailey, supra, the Court concluded that a federal statute punishing escape from custody required proof that defendants knew that they were leaving the jail without authorization, but not proof of intent to avoid confinement. And in Freed, supra, construing a statute punishing possession of unregistered firearms, the Court оbserved that lower court decisions held that the only knowledge to be proved was knowledge that the instrument was a firearm, not knowledge of the registration requirement.

See, e.g., (an equally divided Court affirmed a truck owner‘s conviction for operating an overloaded truck on the highway even without the owner‘s knowledge of weight violation); (an equally divided Court affirmed a conviction for violation of liquor laws absent a showing of intent); (it would defeat the purpose of the statute to require the state to prove knowledge); (the Legislature, under its police power, may declare an act criminal without making intent an element of the offense); (ignorance of the facts that violate a statute is no excuse ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍where intent is not an element of the offense); (the “purpose [is] to require a degree of diligence for the protection of the public whiсh shall render violation impossible“); (no intent is necessary under the statute requiring bars to be kept closed on Sundays); (where the penalty is relatively small and where conviction does not “gravely besmirch” a defendant‘s reputation, dispensing with the element of criminal intent does not violate due process); (the Legislature can define a crime without regard to criminal intent); , app dis (the statute imposed a “duty to implement measures that will insure that violations will not occur,” quoting ).

The Court of Appeals has also noted that it is the police powers of the Legislature that allow it to define a crime without regard to criminal intent. “In areas subject to strong police regulation, the state may impose the burden of acting at hazard upon a person otherwise innocent but standing in a responsible relation to a public danger.” Berry v Michigan Racing Comm‘r, n 12 supra at 169, citing Dotterweich, supra.

LaFave & Scott, supra, § 3.8, pp 244-245, in their treatise on Criminal Law, summarize a number of factors courts have considered important in interpreting statutes empty of words denoting fault, among them, (1) the statute‘s legislative history or its title, (2)

1981 PA 103 also amended MCL 750.231; MSA 28.428, regarding persons authorized to carry concealed weapons.

MCL 312.10; MSA 13.1339 was repealed by 1988 PA 256. Section (1)(g) now appears as MCL 750.227c; MSA 28.424(3). Subsection (1)(h) regarding safe transportation of firearms now appears as MCL 750.227d; MSA 28.424(4) and also in MCL 300.262(2); MSA 13.1262(2).

guidance to interpretation provided by other statutes, (3) the severity of the punishment provided, (4) the severity of potential harm to the public, (5) the opportunity to ascertain the true facts, and (6) the difficulty encountered by prosecuting officials in proving a mental state.

A memorandum from Robert M. Faulkner, Legal Counsel of the Legislative Service Bureau, acknowledged the gap in the existing statutes. On May 21, 1981, he wrote:

The section of the penal code concerning concealed weapons (MCL 750.227 [MSA 28.424]) has been adjudicated as not applying to rifles and shotguns generally . . . .

Section 226 pertains to carrying a firearm with “unlawful intent.” A person could be prosecuted under this section for carrying a firearm in a motor vehicle if the unlawful intent

MCL 300.262(2); MSA 13.1262(2) is not limited to wildlife areas as its predecessor, subsection (1)(h), was.

A recent news story which, fortuitously, did not end tragically for the humans involved, illustrates the scope of the accidental consequences that the statutory duty guards against. On April 16, 1992, Larry Lands, Jr., age sixteen, and his father, Larry Lands, Sr., were turkey hunting in Potosi, Missouri. They shot a turkey and placed it and their loaded Beretta 12-gauge automatic shotgun into the trunk of their car. Then as Larry, Jr., described it, “we left from the place where we killed the turkey. We drove directly to [a friend‘s home]. I opened the trunk [and] the turkey was flopping around, the nеxt thing the gun went off and shot my dad in the leg.” Had the shotgun been unloaded, the stunned, but not dead turkey would not have had its chance to get even with the hunters, and Lands, the Elder, would not have been injured. Washington County, Missouri, Sheriff‘s Office, Report of Investigation, April 16, 1992.

Cal Penal Code 12031, provides in pertinent part: “[E]very person who carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street . . . is guilty of a misdemeanor.”

The court examined the statute‘s legislative history to discern the intent of its legislature in enacting the statute. California‘s legislature had declared the act “‘necessary for the immediate preservation of the public peace, health or safety.‘” . The court noted that the “Legislature [had] cited the danger to the peace and safety of the people of this state from the increased incidence of

Similarly, the Washington Court of Appeals in , held that knowledge that a firearm is loaded is not required under Washington‘s statute prohibiting carrying or placing a loaded pistol in any vehicle. Wash Rev Code 9.41.050(3).

Wash Rev Code 9.41.050(3) provides:

A person shall not carry or place a loaded pistol in any

The Legislature also provided guidance in another statute to assist the court in determining the Legislature‘s intent — MCL 750.2; MSA 28.192. Requiring the state to prove that the defendant knew that the firearm was loaded would not “effect the objects of the law.” As the state argued, it would eviscerate the statute. Unless the state had a witness who aсtually saw a defendant loading a firearm, this knowledge would be extremely difficult to prove.

MCL 750.2; MSA 28.192.