Kansas v.

Hendricks
United States Supreme Court
521 U.S. 346 (1997)

Rule of Law
A state law providing for the involuntary civil commitment of
persons whose mental abnormality makes them likely to
commit acts of sexual violence does not create a criminal
proceeding and is therefore not subject to the Double
Jeopardy and Ex Post Facto Clauses.

Facts
Hendricks (defendant), a prisoner with a record of criminal
convictions for child sexual molestation, was brought to trial by the
State of Kansas (plaintiff) under the Kansas Sexually Violent Predator
Act (Act). The Act provided for the civil commitment of individuals
who were likely to engage in “predatory acts of sexual violence”
caused by a “mental abnormality.” The trial court ordered Hendricks
committed on the ground that his admitted incurable pedophilia
constituted “mental abnormality.” Hendricks appealed on the grounds
that the Act violated both the Double Jeopardy and Ex Post Facto
Clauses of the United States Constitution. The Supreme Court of
Kansas struck down the Act as a violation of substantive due process
and reversed the trial court. The United States Supreme Court
granted certiorari.
Issue
Does a state law providing for the civil commitment of potential
sexual predators with a mental abnormality create a criminal
proceeding subject to the Double Jeopardy and Ex Post Facto
Clauses?
Holding and Reasoning (Thomas, J.)
No. Criminal statutes have two principal purposes: retribution and/or
deterrence. The Act does not attempt to determine whether the
person whose commitment is sought was criminally responsible for
his or her conduct, so it is not retributive.
The Act’s purpose is not retributive because it does not affix
culpability for prior criminal conduct. Instead, such conduct is used
solely for evidentiary purposes, either to demonstrate that a ‘‘mental
abnormality’’ exists or to support a finding of future
dangerousness. . . . In addition, the Kansas Act does not make a
criminal conviction a prerequisite for commitment —persons
absolved of criminal responsibility may nonetheless be subject to
confinement under the Act.

Furthermore, there is no requirement of criminal intent, which is an

essential element in differentiating criminal from civil legislation.
Moreover, unlike a criminal statute, no finding of scienter is required
to commit an individual who is found to be a sexually violent
predator; instead, the commitment determination is made based on a
‘‘mental abnormality’’ or ‘‘personality disorder’’ rather than on one’s
criminal intent. The existence of a scienter requirement is
customarily an important element in distinguishing criminal from civil
statutes. . . . The absence of such a requirement here is evidence
that confinement under the statute is not intended to be retributive.

Finally, the Act is aimed at persons who are unable to control their
conduct and thus there is little chance that they will be deterred by
the fear of commitment.
The mere fact that a statute seeks to protect society from harm does
not make it punitive or criminal.
Since the Act does not involve a criminal proceeding, the Double
Jeopardy and Ex Post Facto Clauses do not apply, and Hendricks’
cross-petition is denied.

JUSTICE THOMAS delivered the opinion of the Court.

In 1994, Kansas enacted the Sexually Violent Predator Act, which establishes procedures for the
civil commitment of persons who, due to a ‘‘mental abnormality’’ or a ‘‘personality disorder,’’
are likely to engage in ‘‘predatory acts

1. The Purposes and Limits of Punishment of sexual violence.’’ Kan. Stat. Ann. §59-
29a01 (1994). The State invoked the Act for the first time to commit Leroy Hendricks, an inmate
who had a long history of sexually molesting children, and who was scheduled for release from
prison shortly after the Act became law. Hendricks challenged his commitment on . . . double
jeopardy, and ex post facto grounds. The Kansas Supreme Court invalidated the Act, holding
that its pre-commitment condition of a ‘‘mental abnormality’’ did not satisfy what the court
perceived to be the ‘‘substantive’’ due process requirement that involuntary civil commitment
must be predicated on a finding of ‘‘mental illness.’’ . . . We now reverse. . . .

The Kansas Legislature enacted the Sexually Violent Predator Act (Act) in 1994 to grapple with
the problem of managing repeat sexual offenders. . . . In the Act’s preamble, the legislature
explained:
[A] small but extremely dangerous group of sexually violent predators exist who do
not have a mental disease or defect that renders them appropriate for involuntary
treatment pursuant to the [general involuntary civil commitment statute]. . . . In
contrast to persons appropriate for civil commitment under the [general
involuntary civil commitment statute], sexually violent predators generally have
anti-social personality features which are unamenable to existing mental illness
treatment modalities and those features render them likely to engage in sexually
violent behavior. The legislature further finds that sexually violent predators’
likelihood of engaging in repeat acts of predatory sexual violence is high. The
existing involuntary commitment procedure . . . is inadequate to address the risk
these sexually violent predators pose to society. . . .
. . . Hendricks admitted that he had repeatedly abused children whenever he was not
confined. He explained that when he ‘‘gets stressed out,’’ he ‘‘can’t control the urge’’ to molest
children. Although Hendricks recognized that his behavior harms children, and he hoped he
would not sexually molest children again, he stated that the only sure way he could keep from
sexually abusing children in the future was ‘‘to die.’’ Hendricks readily agreed with the state
physician’s diagnosis that he suffers from pedophilia and that he is not cured of the condition;
indeed, he told the physician that ‘‘treatment is bull—.’’ The jury unanimously found beyond a
reasonable doubt that Hendricks was a sexually violent predator. The trial court subsequently
determined, as a matter of state law, that pedophilia qualifies as a ‘‘mental abnormality’’ as
defined by the Act, and thus ordered Hendricks committed to the Secretary’s custody. . . .

2
 Kansas argues that the Act’s definition of ‘‘mental abnormality’’ satisfies ‘‘substantive’’
due process requirements. We agree. Although freedom from physical restraint ‘‘has always
been at the core of the liberty protected by the Due Process Clause from arbitrary governmental
action,’’ Foucha v. Louisiana, 504 U.S. 71 (1992), that liberty interest is not absolute. . . .
Accordingly, States have in certain narrow circumstances provided for the forcible civil
detainment of people who are unable to control their behavior and who thereby pose a danger
to the public health and safety. . . .

We granted Hendricks’ cross-petition to determine whether the Act violates the

Constitution’s double jeopardy prohibition or its ban on ex post facto lawmaking. The thrust of
Hendricks’ argument is that the Act establishes criminal proceedings; hence confinement under
it necessarily constitutes punishment. He contends that where, as here, newly enacted
‘‘punishment’’ is predicated upon past conduct for which he has already been convicted and
forced to serve a prison sentence, the Constitution’s Double Jeopardy and Ex Post Facto Clauses
are violated. We are unpersuaded by Hendricks’ argument that Kansas has established criminal
proceedings. . . .
. . . [C]ommitment under the Act does not implicate either of the two primary
objectives of criminal punishment: retribution or deterrence. The Act’s purpose is not
retributive because it does not affix culpability for prior criminal conduct. Instead, such
conduct is used solely for evidentiary purposes, either to demonstrate that a ‘‘mental
abnormality’’ exists or to support a finding of future dangerousness. . . . In addition, the
Kansas Act does not make a criminal conviction a prerequisite for commitment —persons
absolved of criminal responsibility may nonetheless be subject to confinement under the
Act. An absence of the necessary criminal responsibility suggests that the State is not
seeking retribution for a past misdeed. Thus, the fact that the Act may be ‘‘tied to criminal
activity’’ is ‘‘insufficient to render the statute punitive.’’ United States v. Ursery, 518 U.S.
267, 291 (1996).
Moreover, unlike a criminal statute, no finding of scienter is required to commit an
individual who is found to be a sexually violent predator; instead, the commitment
determination is made based on a ‘‘mental abnormality’’ or ‘‘personality disorder’’ rather
than on one’s criminal intent. The existence of a scienter requirement is customarily an
important element in distinguishing criminal from civil statutes. . . . The absence of such a
requirement here is evidence that confinement under the statute is not intended to be
retributive.
Nor can it be said that the legislature intended the Act to function as a deterrent.
Those persons committed under the Act are, by definition, suffering from a ‘‘mental
abnormality’’ or a ‘‘personality disorder’’ that prevents them from exercising adequate
control over their behavior. Such persons are therefore unlikely to be deterred by the
threat of confinement. And the conditions surrounding that confinement do not suggest a
punitive purpose on the State’s part. The State has represented that an individual
confined under the Act is not subject to the more restrictive conditions placed on state
prisoners, but instead experiences essentially the same conditions as any involuntarily
committed patient in the state mental institution. . . .
Although the civil commitment scheme at issue here does involve an affirmative
restraint, ‘‘the mere fact that a person is detained does not inexorably lead to the
conclusion that the government has imposed punishment.’’ United States v. Salerno, 481
U.S. 739 (1987). The State may take measures to restrict the freedom of the dangerously
mentally ill. . . . If detention for the purpose of protecting the community from harm
necessarily constituted punishment, then all involuntary civil commitments would have
to be considered punishment. . . .
We therefore hold that the Act does not establish criminal proceedings and that
involuntary confinement pursuant to the Act is not punitive. Our conclusion that the Act
is nonpunitive thus removes an essential prerequisite for both Hendricks’ double
jeopardy and ex post facto claims.

BILL OF RIGHTS Amendment I religion, or prohibiting the free

Congress shall make no law exercise thereof; or abridging the
respecting an establishment of freedom of speech, or of the
press; or the right of the people
peaceably to assemble, and to
petition the government for a
redress of grievances.
Amendment II
A well regulated militia, being
necessary to the security of a free
state, the right of the people to
keep and bear arms, shall not be
infringed.
Amendment III
No soldier shall, in time of peace
be quartered in any house,
without the consent of the
owner, nor in time of war, but in
a manner to be prescribed by
law.
Amendment IV
The right of the people to be
secure in their persons, houses,
papers, and effects, against
unreasonable searches and
seizures, shall not be violated,
and no warrants shall issue, but
upon probable cause, supported
by oath or affirmation, and
particularly describing the place
to be searched, and the persons
or things to be seized.
Amendment V
No person shall be held to
answer for a capital, or otherwise
infamous crime, unless on a
presentment or indictment of a
grand jury, except in cases
arising in the land or naval
forces, or in the militia, when in
actual service in time of war or
public danger; nor shall any
person be subject for the same
offense to be twice put in
jeopardy of life or limb; nor shall
be compelled in any criminal
case to be a witness against
himself, nor be deprived of life,
4
liberty, or property, without due
process of law; nor shall private
property be taken for public use,
without just compensation.
Amendment VI
In all criminal prosecutions, the
accused shall enjoy the right to a
speedy and public trial, by an
impartial jury of the state and
district wherein the crime shall
have been committed, which
district shall have been
previously ascertained by law,
and to be informed of the nature
and cause of the accusation; to be
confronted with the witnesses
against him; to have compulsory
process for obtaining witnesses
in his favor, and to have the
assistance of counsel for his
defense.
Amendment VII
In suits at common law, where
the value in controversy shall
exceed twenty dollars, the right
of trial by jury shall be
preserved, and no fact tried by a
jury, shall be otherwise
reexamined in any court of the
United States, than according to
the rules of the common law.
Morissette v. United States
United States Supreme Court
342 U.S. 246 (1952)
Rule of Law
Acts which are bad in
themselves, including
larceny, require the element
of mens rea and any similar
strict liability statute will
not be construed as
eliminating the mens rea
element.
Facts
A scrap metal and junk dealer,
Morissette (defendant), entered
an Air Force bombing range and
took several spent bomb
casings that had been lying
around for years exposed to the
weather and rusting.
questions
They were not sacked 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.
An honorably discharged
veteran of World War II, he
enjoys a good name among his
neighbors and has had no
blemish on his record more
disreputable than a conviction
for reckless driving.
Morissette subsequently
flattened the casings out and
sold them for an $84 profit.
Morissette was indicted for
violating 18 U.S.C. § 641 which
made it a crime to “knowing
convert” government property.
At trial, Morissette admitted he
knew he was taking Air Force
property but honestly believed
the government had
abandoned the casings. The
trial judge rejected Morissette’s
defense and instructed the jury
that “[t]he question on intent is
whether or not he intended to
take the property.” He says he
did. Therefore, if you believe
either side, he is guilty.’
Petitioner’s counsel contended,
‘But the taking must have been
with a felonious intent.’ The
court ruled, however: ‘That is
presumed by his own act.’
Morissette was convicted and
he appealed. The court of
appeals affirmed and made the
assumption that Congress
meant for the term “knowingly
convert” to mean simply an
intentional exercise of dominion
over property not belonging to
the individual. The U.S.
Supreme Court granted
certiorari to review.
Issue
Do acts which are bad in
themselves, including larceny,
require the element of mens
rea and will any similar strict
liability statute not be
construed as eliminating the
mens rea element?
Holding and
Reasoning (Jackson, J.)
Yes. The relationship between
an intrinsically harmful act and
some mental element has
given way to a legislative
scheme creating absolute, or
strict, liability to cover many
public welfare offenses. Public
welfare laws require a person to
exercise care, or not act, when
a specific duty is imposed.
Many violations of these laws
result in no direct or immediate
injury to person or property,
but merely create the danger or
probability of it which the law unlike a criminal statute, no
seeks to minimize. finding of scienter is
required to commit an
As a result, regardless of
individual who is found to
the intent of the violator,
the injury and be a sexually violent
consequences are the same. predator; instead, the
Even if a violator “did not commitment determination
mean to” violate the law, he is made based on a ‘‘mental
can be found guilty. Thus, abnormality’’ or
strict liability legislation ‘‘personality disorder’’
does not specify intent as a rather than on one’s
required element.
criminal intent. The
Section 641 at issue here is existence of a scienter
such a statute. However, requirement is customarily
stealing, larceny, and its an important element in
variants were among the distinguishing criminal
earliest offenses known to the from civil statutes. . . . The
law that existed prior to absence of such a
enactment of the legislation requirement here is
and state courts have
evidence that confinement
consistently required intent in
larceny-type offenses. under the statute is not
Congressional silence as to the intended to be retributive.
mental element in § 641 will inflicted.
not be construed as eliminating Amendment IX
that element from the crimes The enumeration in the
denounced. Here, the trial Constitution, of certain rights,
judge wrongly instructed the shall not be construed to deny or
jury that it was not allowed to
consider Morissette’s honest
disparage others retained by the
belief that he thought the people.
casings were abandoned as a Amendment X
defense. The judgment of The powers not delegated to the
conviction is reversed. United States by the
Constitution, nor prohibited by it
Amendment VIII to the states, are reserved to the
Excessive bail shall not states respectively, or to the
be required, nor excessive people.
fines imposed, Moreover,

6
 Supreme Court of the United States
MORISSETTE
v.
UNITED STATES.
342 U.S. 246 (1952)
Mr. Justice JACKSON delivered the opinion of the
Court.
This would 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 area 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 and 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 sacked 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 collector in
winter. An honorably discharged veteran of World
War II, he enjoys a good name among his neighbors
and has had no blemish on his record more
disreputable than a conviction for reckless driving.
The loading, crushing and transporting of these
casings were all in broad daylight, in full view 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
7
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. s
641, 18 U.S.C.A. s 641, which provides that ‘whoever
embezzles, steals, purloins, or knowingly converts’
government property is punishable by fine and
imprisonment.1 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.
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 wrongful or criminal
intent.
The trial court, however, was unimpressed, and
ruled: ‘(H)e took it because he thought it was
abandoned and he knew he was on government
property. * * * That is no defense. * * * I don’t think
anybody can have the defense they thought the
property was abandoned on another man’s piece of
property.’ The court stated: ‘I will not permit you to
show this man thought it was abandoned. * * * I hold
in this case that there is no question of abandoned
property.’ The court refused to submit or to allow
counsel to argue to the jury whether Morissette
acted with innocent intention. It charged: ‘And I
instruct you that if you believe the testimony of the
government in this case, he intended to take it. * * *
He had no right to take this property. * * * (A)nd it is
no defense to claim that it was abandoned, because
it was on private property. * * * And I instruct you to
this effect: That if this young man took this property
(and he says he did), without any permission (he
says he did), that was on the property of the United
States Government (he says it was), that it was of the
value of one cent or more (and evidently it was), that
he is guilty of the offense charged here. If you
believe the government, he is guilty. * * * The
question on intent is whether or not he intended to
take the property. He says he did. Therefore, if you
believe either side, he is guilty.’ Petitioner’s counsel
contended, ‘But the taking must have been with a
felonious intent.’ The court ruled, however: ‘That is
presumed by his own act.’
1 18 U.S.C. s.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, money, or thing of value of
the United States or of any department or agency thereof, or
any property made or being made under contract
The Court of Appeals suggested that ‘greater
restraint in
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.’
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 own
admissions.’ Its construction of the statute is that it
creates several separate and distinct offenses, one
being knowing conversion of government property.
The court ruled that this particular offense requires
no element of criminal intent. This conclusion was
thought to be required by the failure of Congress to
express such a requisite and this Court’s decisions in
United States v. Behrman, 258 U.S. 280, 42
S.Ct. 303, 66 L.Ed. 619, and United States v. Balint,
258
U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604.
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
crimes, except when expressly preserved, the
ancient requirement of a culpable state of mind. We
think a re sume 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 harmful act is almost as instinctive
as the child’s familiar exculpatory ‘But I didn’t mean
to,’ and has afforded the rational basis for a tardy
and unfinished substitution of deterrence and
reformation in place of retaliation and vengeance as
the motivation for public prosecution.5 Unqualified
acceptance of this doctrine by English common law
8
in the Eighteenth Century was indicated by
Blackstone’s sweeping statement that to constitute
any crime there must first be a ‘vicious will.’ 6
Common-law commentators of the Nineteenth
Century early pronounced the same principle, 7
although a few exceptions not relevant to our
present problem came to be recognized.8
Crime, as a compound concept, generally
constituted only from concurrence of an evil-
meaning mind with an evildoing hand, was
congenial to an intense individualism and took deep
and early root in American soil. 9 As the state
codified the common law of crimes, even if their
enactments were silent on the subject, their courts
assumed that the omission did not signify
disapproval of the principle but merely recognized
that intent was so inherent in the idea of the offense
that it required no statutory affirmation. Courts,
with little hesitation or division, found an
implication of the requirement as to offenses that
were taken over from the common law. 10 The
unanimity with which they have adhered to the
central thought that wrongdoing must be conscious
to be criminal is emphasized by the variety,
disparity and confusion of their definitions of the
requisite but elusive mental element. However,
courts of various jurisdictions, and for the purposes
of different offenses, have devised working
formulae, if not scientific ones, for the instruction of
juries around such terms as ‘felonious intent,’
‘criminal intent,’ ‘malice aforethought,’ ‘guilty
knowledge,’ ‘fraudulent intent,’ ‘wilfulness,’
‘scienter,’ to denote guilty knowledge, or ‘mens rea,’
to signify an evil purpose or mental culpability. By
use or combination of these various tokens, they
have sought to protect those who were not
blameworthy in mind from conviction of infamous
common-law crimes.
However, the Balint and Behrman offenses belong to
a category of another character, with very different
antecedents and origins. The crimes there involved
depend on no mental element but consist only of
forbidden acts or omissions. This, while not
expressed by the Court, is made clear from
examination of a century-old but accelerating
tendency, discernible both here11 and in England,12 to
call into existence new duties and crimes which
disregard any ingredient of intent. The industrial
revolution multiplied the number of workmen
exposed to injury from increasingly powerful and
complex mechanisms, driven by freshly discovered
sources of energy, requiring higher precautions by
employers. Traffic of velocities, volumes and
varieties unheard of came to subject the wayfarer to
intolerable casualty risks if owners and drivers were
not to observe new cares and uniformities of
conduct. Congestion of cities and crowding of
quarters called for health and welfare regulations
undreamed of in simpler times. Wide distribution of
goods became an instrument of wide distribution of
harm when those who dispersed food, drink, drugs,
and even securities, did not comply with reasonable
standards of quality, integrity, disclosure and care.
Such dangers have engendered increasingly
numerous and detailed regulations which heighten
the duties of those in control of particular industries,
trades, properties or activities that affect public
health, safety or welfare.
While many of these duties are sanctioned by a more
strict civil liability,13 lawmakers, whether wisely or
not,14 have sought to make such regulations more
effective by invoking criminal sanctions to be
applied by the familiar technique of criminal
prosecutions and convictions. This has confronted
the courts with a multitude of prosecutions, based
on statutes or administrative regulations, for what
have been aptly called ‘public welfare offenses.’
These cases do not fit neatly into any of such
accepted classifications of common-law offenses,
such as those against the state, the person, property,
or public morals. Many of these offenses are not in
the nature of positive aggressions or invasions, with
which the common law so often dealt, but are in the
nature of neglect where the law requires care, or
inaction where it imposes a duty. Many violations of
such regulations result in no direct or immediate
injury to person or property but merely create the
danger or probability of it which the law seeks to
minimize. While such offenses do not threaten the
security of the state in the manner of treason, they
may be regarded as offenses against its authority, for
their occurrence impairs the efficiency of controls
deemed essential to the social order as presently
constituted. In this respect, whatever the intent of
the violator, the injury is the same, and the
consequences are injurious or not according to
fortuity. Hence, legislation applicable to such
offenses, as a matter of policy, does not specify
intent as a necessary element. The accused, if he
does not will the violation, usually is in a position to
prevent it with no more care than society might
reasonably expect and no more exertion than it
might reasonably exact from one who assumed his
responsibilities. Also, penalties commonly are
relatively small, and conviction does not grave
damage to an offender’s reputation. Under such
considerations, courts have turned to construing
statutes and regulations which make no mention of
9
intent as dispensing with it and holding that the
guilty act alone makes out the crime. This has not,
however, been without expressions of misgiving.
…
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 burden of
interpreting criminal law in this country, have
consistently retained the requirement of intent in
larceny-type offenses.19 If any state has deviated, the
exception has neither been called to our attention
nor disclosed by our research.
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 constituent states of the Union
holding intent inherent in this class of offense, even
when not expressed in a statute. Congressional
silence as to mental elements in an Act merely
adopting into federal statutory law a concept of
crime already so well defined in common law and
statutory interpretation by the states may warrant
quite contrary inferences than the same silence in
creating an offense new to general law, for whose
definition the courts have no guidance except the
Act. Because the offenses before this Court in the
Balint and Behrman cases were of this latter class,
we cannot accept them as authority for eliminating
intent from offenses incorporated from the common
law. Nor do exhaustive studies of state court cases
disclose any well-considered decisions applying the
doctrine of crime without intent to such enacted
common-law offenses,20 although a few deviations
are notable as illustrative of the danger inherent in
the Government’s contentions here.21
The Government asks us by a feat of construction
radically to change the weights and balances in the
scales of justice. The purpose and obvious effect of
doing away with the requirement of a guilty intent is
to ease the prosecution’s path to conviction, to strip
the defendant of such benefit as he derived at
common law from innocence of evil purpose, and to
circumscribe the freedom heretofore allowed juries.
Such a manifest impairment of the immunities of the
individual should not be extended to common-law
crimes on judicial initiative.
The spirit of the doctrine which denies to the federal
judiciary power to create crimes forthrightly22
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.
10
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 s 641 of any
mention of intent will not be construed as
eliminating that element from the crimes
denounced.
…
Reversed
People v. Beeman
Supreme Court of California
35 Cal. 3d 547 (1984)
Rule of Law
An individual is guilty of aiding and
abetting the commission of a crime if
he knows of another’s intention to
commit a crime, intends to
encourage or facilitate the
commission of the crime, and in
furtherance of that intent, commits
an act that aids or encourages the
commission of the crime.
Facts
James Gray and Michael Burk robbed
Timothy Beeman’s sister-in-law. Beeman
(defendant) was charged with aiding and
abetting Gray and Burk in the robbery.
Gray and Burk testified that Beeman was
involved in planning the robbery,
including them giving information about
the layout of the victim’s house, what was
inside, what to wear to be able to talk
their way in, and agreeing to sell some of
the stolen goods. Beeman testified that
although he did give some of this
information, he did not do so with an
intent that Gray and Burk commit the
crime. He also testified that when he was
told about the robbery plan, he told Gray
that he did not want to be involved. In
fact, Gray’s testimony confirmed that
Beeman had said before the robbery that
he did not want to be a part of it. Finally,
although Beeman was found with missing
jewelry, he claimed that he had only
taken possession of it in order to return it
to his sister-in-law. Also, information from
Beeman led to the initial arrest of Gray
and Burk. However, Beeman was
convicted of aiding and abetting Gray and
Burk in the robbery. Beeman appealed on
the grounds that the jury instruction did
not include a requirement that Beeman
14
intended his actions would aid in the
commission of the robbery.
Issue
Is a jury instruction on aiding and abetting
the commission of a crime proper if it
does not contain a requirement that the
defendant intended with his actions that
the crime be committed?
Holding and Reasoning (Reynoso, J.)
No. An individual is guilty of aiding and
abetting the commission of a crime if he
(1) knows of another’s intention to
commit a crime, (2) intends to encourage
or facilitate the commission of the crime,
and (3) in furtherance of that intent,
commits an act that aids or encourages
the commission of the crime. A jury
instruction that does not include element
(2) above is improper.
An aider and abettor must act with the
intent that the crime will be committed.
Thus, it is possible that an individual’s
actions may aid in the commission of a
crime, but the individual is nonetheless
innocent of aiding and abetting. If the jury
were instructed that an individual could
be found guilty of aiding of abetting solely
by the result of his actions, it would
effectively improperly eliminate intent as
an element of the crime. Under such an
instruction, an individual could be found
guilty of aiding and abetting if his true
purpose was to prevent or expose the
crime. Therefore, in this case, the jury
instructions were improper because they
did not include a requirement that
Beeman intended his actions would aid in
the commission of the robbery. Beeman’s
conviction is reversed.
Supreme Court of California
The PEOPLE, Plaintiff and Respondent,
v.
Timothy Mark BEEMAN, Defendant and
Appellant.
Feb. 6, 1984.
REYNOSO, Justice.
Timothy Mark Beeman appeals from a judgment of
conviction of robbery, burglary, false imprisonment,
destruction of telephone equipment and assault with
intent to commit a felony (Pen.Code, §§ 211, 459, 236,
591, 221). Appellant was not present during
commission of the offenses. His conviction rested on
the theory that he aided and abetted his
acquaintances James Gray and Michael Burk.
The primary issue before us is whether the standard
California Jury Instructions (CALJIC Nos. 3.00 and
3.01) adequately inform the jury of the criminal
intent required to convict a defendant as an aider
and abettor of the crime.2
We hold that instruction No. 3.01 is erroneous.
Sound law, embodied in a long line of California
decisions, requires proof that an aider and abettor
rendered aid with an intent or purpose of either
committing, or of encouraging or facilitating
commission of, the target offense….
James Gray and Michael Burk drove from Oakland
to Redding for the purpose of robbing appellant’s
sister-inlaw, Mrs. Marjorie Beeman, of valuable
jewelry, including a 3.5 carat diamond ring. They
telephoned the residence to determine that she was
home. Soon thereafter Burk knocked at the door of
the victim’s house, presented himself as a poll taker,
and asked to be let in. When Mrs. Beeman asked for
identification, he forced her into the hallway and
entered. Gray, disguised in a ski mask, followed. The
two subdued the victim, placed tape over her mouth
and eyes and tied her to a bathroom fixture. Then
they ransacked the house, taking numerous pieces of
jewelry and a set of silverware. The jewelry included
a 3.5 carat, heart-shaped diamond ring and a blue
sapphire ring. The total value of these two rings was
over $100,000. In the course of the robbery, telephone
wires inside the house were cut.
Appellant was arrested six days later in Emeryville.
He had in his possession several of the less valuable
2 CALJIC No. 3.00 defines principals to a crime to include
“Those who, with knowledge of the unlawful purpose of the one
who does directly and actively commit or attempt to commit the
crime, aid and abet in its commission ..., or ... Those who,
whether present or not at the commission or attempted
commission of the crime, advise and encourage its
commission....”
15
of the stolen rings. He supplied the police with
information that led to the arrests of Burk and Gray.
With Gray’s cooperation appellant assisted police in
recovering most of the stolen property.
Burk, Gray and appellant were jointly charged. After
the trial court severed the trials, Burk and Gray pled
guilty to robbery. At appellant’s trial they testified
that he had been extensively involved in planning
the crime…. [They testified that Beeman had
supplied them with information about the contents
and layout of the house, discussed the method used,
made suggestions about how Burk and Gray should
dress, and agreed to sell the loot for 20 percent of the
proceeds. Gray’s testimony did indicate that shortly
before the robbery Beeman said he wanted no part of
it, and afterward expressed anger that the robbery
had been committed and Burk had not disguised
himself.]
Appellant Beeman’s testimony contradicted that of
Burk and Gray as to nearly every material element of
his own involvement. Appellant testified that he did
not participate in the robbery or its planning. He
confirmed that Burk had lived with him on several
occasions, and that he had told Burk about Mrs.
Beeman’s jewelry, the valuable diamond ring, and
the Beeman ranch, in the course of day-to-day
conversations. He claimed that he had sketched a
floor plan of the house some nine months prior to
the robbery, only for the purpose of comparing it
with the layout of a house belonging to another
brother. He at first denied and then admitted
describing the Beeman family cars, but insisted this
never occurred in the context of planning a
robbery….
Appellant requested that the jury be instructed in
accord with People v. Yarber that aiding and abetting
liability requires proof of intent to aid. The request
was denied.
CALJIC No. 3.01 defines aiding and abetting as
follows: “A person aids and abets the commission of
a crime if, with knowledge of the unlawful purpose
of the perpetrator of the crime, he aids, promotes,
encourages or instigates by act or advice the
commission of such crime.”
After three hours of deliberation, the jury submitted
two written questions to the court: “We would like
to hear again how one is determined to be an
accessory and by what actions can he absolve
himself”; and “Does inaction mean the party is
guilty?” The jury was reinstructed in accord with the
standard instructions, CALJIC Nos. 3.00 and 3.01.
The court denied appellant’s renewed request that
the instructions be modified as suggested in Yarber,
explaining that giving another, slightly different
instruction at this point would further complicate
matters. The jury returned its verdicts of guilty on all
counts two hours later.
I adequately protected from conviction for acts
Penal Code section 31 provides in pertinent part:
“All persons concerned in the commission of a crime,
... whether they directly commit the act constituting
the offense, or aid and abet in its commission, or, not
being present, have advised and encouraged its
commission, ... are principals in any crime so
committed.” Thus, those persons who at common
law would have been termed accessories before the
fact and principals in the second degree as well as
those who actually perpetrate the offense, are to be
prosecuted, tried and punished as principals in
California. The term “aider and abettor” is now often
used to refer to principals other than the perpetrator,
whether or not they are present at the commission of
the offense….3
Appellant asserts that the current instructions, in
particular CALJIC No. 3.01, substitute an element of
knowledge of the perpetrator’s intent for the element
of criminal intent of the accomplice, in contravention
of common law principles and California case law.
He argues that the instruction given permitted the
jury to convict him of the same offenses as the
perpetrators without finding that he harbored either
the same criminal intent as they, or the specific intent
to assist them, thus depriving him of his
constitutional rights to due process and equal
protection of the law.
Appellant further urges that the error requires
reversal because it removed a material issue from the
3 The major purpose and effect of this abrogation of the common
law distinction between parties to crime apparently has been to
alleviate certain procedural difficulties. For instance, at common
law an accessory before the fact was punishable where the
incitement occurred while the principals were punishable where
the offense occurred; one could not be convicted as an accessory
if charged as a principal and vice versa; an accessory could not
be tried before the principal had been found guilty.
16
jury and on this record it is impossible to conclude
that the jury necessarily resolved the same factual
question that would have been presented by the
missing instruction.
The People argue that the standard instruction
properly reflects California law, which requires no
more than that the aider and abettor have knowledge
of the perpetrator’s criminal purpose and do a
voluntary act which in fact aids the perpetrator. The
People further contend that defendants are
committed under duress or which inadvertently aid
a perpetrator by the limitation of the liability of an
aider and abettor to those acts knowingly aided and
their natural and reasonable consequences. Finally,
the People argue that the modification proposed by
Yarber, supra, is unnecessary because proof of
intentional aiding in most cases can be inferred from
aid with knowledge of the perpetrator’s purpose.
Thus, respondent argues, it is doubtful that the
requested modification would bring about different
results in the vast majority of cases.
II
There is no question that an aider and abettor must
have criminal intent in order to be convicted of a
criminal offense. Decisions of this court dating back
to 1898 hold that “the word ‘abet’ includes
knowledge of the wrongful purpose of the
perpetrator and counsel and encouragement in the
crime” and that it is therefore error to instruct a jury
that one may be found guilty as a principal if one
aided or abetted. The act of encouraging or
counseling itself implies a purpose or goal of
furthering the encouraged result. “An aider and
abettor’s fundamental purpose, motive and intent is
to aid and assist the perpetrator in the latter’s
commission of the crime.”
The essential conflict in current appellate opinions is
between those cases which state that an aider and
abettor must have an intent or purpose to commit or
assist in the commission of the criminal offenses and
those finding it sufficient that the aider and abettor
engage in the required acts with knowledge of the
perpetrator’s criminal purpose….
The subsequent Ellhamer and Ott decisions explain
the reasoning process behind the theory that
knowledge is all that is required: “... the criminal
intent of the aider and abettor is presumed from his
actions with knowledge of the actor’s wrongful
purpose. [Citations.]” (People v. Ellhamer, supra, 199
Cal.App.2d at p. 782, 18 Cal.Rptr.
905; People v. Ott, supra, 84 Cal.App.3d at p. 130, 148
Cal.Rptr. 479.) In Ott the court specifically upheld
the
(See generally, Perkins, Criminal Law (1982) pp. 751–
757.) Now, as at common law, one who is found
guilty of the same offense on a theory of aiding and
abetting while present at the scene of the crime, or
conspiring with the perpetrator beforehand or
instigating, encouraging, or advising commission of
the crime, is subject to the same punishment as the
one who with the requisite criminal intent commits
the crime by his or her own acts.
current version of CALJIC Nos. 3.00 and 3.01 against
the argument that they omit the element of criminal
intent.
The reasoning of Ellhamer and Ott has been forcefully
and correctly criticized by a number of subsequent
Court of Appeal opinions which find that the weight
of authority requires an aider and abettor to have an
intent or purpose to commit or assist in commission
of the underlying offense. The leading case is People
v. Yarber, supra, 90 Cal.App.3d 895, 153 Cal.Rptr. 875,
which explained that “[t]he Ellhamer/Ott synthesis
that intent is inferred from the knowledge by the
aider and abettor of the perpetrator’s purpose is
sound, generally, as a matter of human experience,
but we cannot extrapolate therefrom, as a matter of
law, that the inference must be drawn. Intent is what
must be proved; from a person’s action with
knowledge of the purpose of the perpetrator of a
crime, his intent to aid the perpetrator can be
inferred. In the absence of evidence to the contrary,
the intent may be regarded as established. But where
a contrary inference is reasonable— where there is
room for doubt that a person intended to aid a
perpetrator—his knowledge of the perpetrator’s
purpose will not suffice.”
This court has not addressed the intent of an aider
and abettor since the Yarber opinion….
We agree with the Yarber court that the facts from
which a mental state may be inferred must not be
confused with the mental state that the prosecution
is required to prove. Direct evidence of the mental
state of the accused is rarely available except through
his or her testimony. The trier of fact is and must be
free to disbelieve the testimony and to infer that the
truth is otherwise when such an inference is
17
supported by circumstantial evidence regarding the
actions of the accused. Thus, an act which has the
effect of giving aid and encouragement, and which is
done with knowledge of the criminal purpose of the
person aided, may indicate that the actor intended to
assist in fulfillment of the known criminal purpose.
However, as illustrated by Hicks v. U.S. (1893) 150
U.S. 442, 14 S.Ct. 144, 37 L.Ed. 1137 (conviction
reversed because jury not instructed that words of
encouragement must have been used with the
intention of encouraging and abetting crime in a case
where ambiguous gesture and remark may have
been acts of desperation) and People v. Bolanger (1886)
71 Cal. 17, 11 P. 799 (feigned accomplice not guilty
because lacks common intent with the perpetrator to
unite in the commission of the crime), the act may be
done with some other purpose which precludes
criminal liability.
If the jury were instructed that the law conclusively
presumes the intention of the accused solely from his
or her voluntary acts, it would “ ‘effectively
eliminate intent as an ingredient of the offense’ ” and
would “ ‘conflict with the overriding presumption of
innocence with which the law endows the accused
and which extends to every element of the crime.’ ”
(Sandstrom v. Montana (1979) 442 U.S. 510, 522, 99
S.Ct. 2450, 2458, 61 L.Ed.2d 39, quoting from
Morissette v. United States (1952) 342 U.S. 246, 274–
275, 72 S.Ct. 240, 255–256, 96 L.Ed. 288; original
emphasis omitted.) Where an appellate court
employs the same presumption to support the
adequacy of a jury instruction, the reviewing court
announces its willingness to permit a conviction to
stand regardless of whether the trier of fact has
found the required criminal intent. Thus at the
appellate level, the element of criminal intent is
effectively eliminated as an ingredient of the offense.
Thus, we conclude that the weight of authority and
sound law require proof that an aider and abettor act
with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of
committing, or of encouraging or facilitating
commission of, the offense.
When the definition of the offense includes the intent
to do some act or achieve some consequence beyond
the actus reus of the crime, the aider and abettor must
share the specific intent of the perpetrator. By
“share” we mean neither that the aider and abettor
must be prepared to commit the offense by his or her
own act should the perpetrator fail to do so, nor that
the aider and abettor must seek to share the fruits of
the crime. Rather, an aider and abettor will “share”
the perpetrator’s specific intent when he or she
knows the full extent of the perpetrator’s criminal
purpose and gives aid or encouragement with the
intent or purpose of facilitating the perpetrator’s
commission of the crime. The liability of an aider and
abettor extends also to the natural and reasonable
consequences of the acts he knowingly and
intentionally aids and encourages.
CALJIC No. 3.01 inadequately defines aiding and
abetting because it fails to insure that an aider and
abettor will be found to have the required mental
state with regard to his or her own act. While the
instruction does include the word “abet,” which
encompasses the intent required by law, the word is
18
arcane and its full import unlikely to be recognized
by modern jurors. Moreover, even if jurors were
made aware that “abet” means to encourage or
facilitate, and implicitly to harbor an intent to further
the crime encouraged, the instruction does not
require them to find that intent because it defines an
aider and abettor as one who “aids, promotes,
encourages or instigates” (emphasis added). Thus, as
one appellate court recently recognized, the
instruction would “technically allow a conviction if
the defendant knowing of the perpetrator’s unlawful
purpose, negligently or accidentally aided the
commission of the
crime.”…
We suggest that an appropriate instruction should
inform
the jury that a person aids and abets the
commission of a crime when he or she, acting with
(1) knowledge of the unlawful purpose of the
perpetrator, and (2) the intent or purpose of
committing, encouraging, or facilitating the
commission of the offense, (3) by act or advice aids,
promotes, encourages or instigates, the commission
of the crime.
III
… Respondent urges that any instructional error
was harmless …. Respondent argues that the jury
clearly found that appellant knew his accomplices’
purpose was to rob his sister-in-law and rejected his
testimony that he did not in fact assist them. Thus,
the only reasonable inference from the evidence was
that appellant intentionally aided the actual
perpetrators.
We do not agree with respondent’s assessment of
the effect of the error. Correct instruction on the
element of intent was particularly important in this
case because appellant’s defense focused on the
question of his intent more than on the nature of his
acts. The prosecution produced considerable
evidence which showed that appellant in fact aided
the robbery. The prosecution’s evidence also sought
to show that he had participated extensively in the
planning of the robbery and agreed beforehand to
sell the jewelry for a percentage of its value, but
refused to be present when the offenses were
committed.
Appellant did not deny that he had given
information to Burk and Gray which aided their
criminal enterprise, but he claimed his purposes in
doing so were innocent. Appellant admitted that he
was at some time made aware of his friends’ intent
to rob Mrs. Beeman, but insisted that he had
repeatedly stated that he wanted nothing to do with
a robbery of his relatives. He testified that he didn’t
think Burk would really go through with the
robbery or that Gray would help. Two days before
the incident, he again told Gray that he didn’t want
to be involved. Gray’s testimony confirmed that
appellant had twice said he did not want to be
involved. Finally, appellant claimed to have taken
possession of the jewelry and feigned attempts to
sell it in order to recover the property and return it
to the victims. Thus, the essential point of his
defense was that although he acted in ways which
19
in fact aided the criminal enterprise, he did not act
with the intent of encouraging or facilitating the
planning or commission of the offenses.
The jury certainly could have believed Burk and Gray
while disbelieving appellant, and thus found that
appellant intentionally aided and encouraged his
friends in their crimes. However, the fact that the jury
interrupted its deliberations to seek further
instruction regarding accomplice liability indicates
that the jurors did not dismiss appellant’s testimony
out of hand. Rather, the questions asked indicate the
jury’s deliberations were focused on the very issue
upon which the defense rested and upon which the
court’s instructions were inadequate: the elements—
including the mental element—of aiding and
abetting. When it reinstructed the jury according to
the standard instructions and again refused the
Yarber modification requested by appellant, the court
repeated its original mistake.
Under these circumstances, where the defense
centered on the very element as to which the jury
was inadequately instructed and the jurors’
communication to the court indicated confusion on
the same point, we cannot find the error harmless….
The convictions are reversed.
RICHARDSON,* Justice, concurring and dissenting.
I concur in the court’s conclusion that the jury
instructions given in this case were inadequate
because they failed to inform the jury that appellant
could be guilty of aiding and abetting a crime only if
he acted with the intent or purpose of committing,
encouraging or facilitating the commission thereof.
I respectfully dissent, however, from the reversal of
appellant’s conviction. The verdicts clearly
demonstrated that the jury disbelieved the testimony
of appellant which would have supported a finding
that he did not have the requisite criminal intent.
Further, the record amply supports the conclusion
that appellant acted knowingly and intentionally in
encouraging and facilitating the commission of the
offenses. Accordingly, the trial court’s error in
refusing to give the modified instruction sought by
appellant was harmless and the conviction should be
affirmed. (See People v. Watson (1956) 46 Cal.2d 818,
299
P.2d 243.)
People v. Lauria
California District Court of
Appeal
59 Cal. Rptr. 628 (1967)
Rule of Law
In order to make a supplier of
goods or services a participant
in a criminal conspiracy, the
prosecution must show the
supplier had knowledge of the
illegal use of the goods or
services and had an intent to
further the illegal use of the
goods or services.
Facts
A police investigation revealed that
three known prostitutes were using
Lauria’s (defendant) telephone
answering service for business
purposes. Stella Weeks, a police
officer, went undercover, posed as a
prostitute, and signed up with
Lauria’s answering service. Over
approximately a three month
period, Weeks periodically
complained to Lauria’s office
manager about losing calls and not
receiving messages for “tricks.”
Lauria defended his service and
emphasized that “his business was
taking messages.” Thereafter,
Lauria and the three prostitutes
were arrested and charged with
conspiracy to commit prostitution, a
misdemeanor. Lauria objected to
the arrest and told the police that,
while he knew of only one known
prostitute, his records were always
available whenever the police had a
specific name to investigate, but
also that his service did not
20
“arbitrarily tell the police about
prostitutes.” The trial court
dismissed the indictment brought
against Lauria and the three
prostitutes as lacking probable
cause. The People appealed.
Issue
In order to make a supplier of goods
or services a participant in a
criminal conspiracy, must the
prosecution show that the supplier
had knowledge of the illegal use of
the goods or services and had an
intent to further the illegal use of
the goods or services?
Holding and
Reasoning (Fleming, J.)
Yes. The prosecution attempted to
establish the element of an
agreement to further an illegal act,
required to show the presence of a
conspiracy, by showing that Lauria
knew his co-defendants were
prostitutes who used his service to
receive “business” calls and
continued to furnish them with the
service. This approach attempts to
equate knowledge of another’s
criminal activity with a conspiracy
to further that illegal activity.
In United States v. Falcone, 311 U.S.
205 (1940), sellers of sugar, yeast
and cans, who had only knowledge
of an illegal liquor conspiracy, were
held not to have participated in the
conspiracy with distillers who
purchased the goods from them.
In Direct Sales Co. v. United States,
319 U.S. 703 (1943), a wholesaler
of drugs was convicted of
conspiracy to violate the federal
narcotic laws by selling drugs in
quantity to a co-defendant
physician who was supplying them
to addicts. There, the wholesaler
actively promoted the sale of
morphine sulfate and sold the drug
in quantities 300 times his normal
requirements. The Court in Direct
Sales said that there must be more
than just knowledge of illegal
activity to be a conspiracy, there
must be an intent to further it and a
stake in the venture. To show intent,
it is easiest if there is proof of
direction participation in the illegal
acts. But when such evidence is
lacking, intent may be inferred
when the supplier of services has a
stake in the illegal venture. Here,
Lauria did not inflate his answering
service prices for his co-defendant
prostitutes in order to financially
gain from their illegal activity
versus his other customers.
Additionally, intent may be inferred
when no legitimate use for the
goods or services exists. Here, there
is nothing inherently illegal or
useless about an answering service.
Finally, intent may be inferred when
the supplier’s volume of business
with the buyer is grossly
disproportionate to any legitimate
demand or when the sales for the
illegal use account for a very high
proportion of the supplier’s total
business. Here, no such evidence of
unusual volume of Lauria’s business
was shown. When the supplier has
a “special interest” in the outcome
of the illegal activity, as shown by
the above examples, then the
supplier may be held to have
participated in the conspiracy.
There have been cases when a
supplier who simply had knowledge
of a buyer’s illegal activity was held
criminally culpable in a conspiracy.
However, those cases all involved
felony crimes, not misdemeanors as
Lauria has been charged here.
Here, there is no proof that Lauria
took any direct action to further,
encourage, or direct the prostitution
21
activities of his co-defendants. The
order dismissing the indictment is
affirmed.
Failure to reveal a felony to the
authorities is now authoritatively
determined to be misprision of
felony, which is a commonwealth
misdemeanour; misprision of
treason is punishable with
imprisonment for life. * * * No
offense is commited in failing to
disclose a misdemeanour.
Cal. Court of Appeal, Second District,
Division 2
The PEOPLE of the State of California,
Plaintiff and Appellant,
v.
Louis LAURIA et al., Defendants and
Respondents.
June 1, 1967
FLEMING, Associate Justice.
In an investigation of call-girl activity
prostitutes actively plying their trade on call,
each of whom was using Lauria’s telephone
answering service, presumably for business
purposes.
On January 8, 1965, Stella Weeks, a
policewoman, signed up for telephone
service with Lauria’s answering service. Mrs.
Weeks, in the course of her conversation with
Lauria’s office manager, hinted broadly that
she was a prostitute concerned with the
secrecy of her activities and their
concealment from the police. She was
assured that the operation of the service was
discreet and ‘about as safe as you can get.’ It
was arranged that Mrs. Weeks need not leave
her address with the answering service, but
could pick up her calls and pay her bills in
person.
On February 11, Mrs. Weeks talked to Lauria
on the telephone and told him her business
was modelling and she had been referred to
the answering service by Terry, one of the
three prostitutes under investigation. She
complained that because of the operation of
the service she had lost two valuable
customers, referred to as tricks. Lauria
defended his service and said that her friends
had probably lied to her about having left
calls for her. But he did not respond to Mrs.
Weeks’ hints that she needed customers in
order to make money, other than to invite
her to his house for a personal visit in order
to get better acquainted. In the course of his
talk he said ‘his business was taking
messages.’
On February 15, Mrs. Weeks talked on the
telephone to Lauria’s office manager and
again complained of two lost calls, which she
described as a $50 and a $100 trick. On
investigation the office manager could find
nothing wrong, but she said she would alert
the switchboard operators about slip-ups on
calls.
On April 1 Lauria and the three prostitutes
were arrested. Lauria complained to the
police that this attention was undeserved,
stating that Hollywood Call Board had 60 to
70 prostitutes on its board while his own
service had only 9 or 10, that he kept separate
records for known or suspected prostitutes
for the convenience of himself and the police.
When asked if his records were available to
police who might come to the office to
investigate call girls, Lauria replied that they
were whenever the police had a specific
name. However, his service didn’t
‘arbitrarily tell the police about prostitutes on
our board. As long as they pay their bills we
tolerate them.’ In a subsequent voluntary
appearance before the Grand Jury Lauria
testified he had always cooperated with the
police. But he admitted he knew some of his
customers were prostitutes, and he knew
Terry was a prostitute because he had
personally used her services, and he knew
she was paying for 500 calls a month.
Lauria and the three prostitutes were
indicted for conspiracy to commit
prostitution, and nine overt acts were
specified. Subsequently the trial court set
aside the indictment as having been brought
without reasonable or probable cause.
(Pen.Code, s 995.) The People have appealed,
claiming that a sufficient showing of an
unlawful agreement to further prostitution
was made.
22
To establish agreement, the People need
show no more than a tacit, mutual
understanding between coconspirators to
accomplish an unlawful act. Here the People
attempted to establish a conspiracy by
showing that Lauria, well aware that his
codefendants were prostitutes who received
business calls from customers through his
telephone answering service, continued to
furnish them with such service. This
approach attempts to equate knowledge of
another’s criminal activity with conspiracy to
further such criminal activity, and poses the
question of the criminal responsibility of a
furnisher of goods or services who knows his
product is being used to assist the operation
of an illegal business. Under what
circumstances does a supplier become a part
of a conspiracy to further an illegal enterprise
by furnishing goods or services which he
knows are to be used by the buyer for
criminal purposes?
The two leading cases on this point face in
opposite directions…. [The court then cites
two U.S. Supreme Court cases, concludes
that they “may not be entirely consistent
with each other,” but argues that they
nonetheless “provide us with a framework
for the criminal liability of a supplier of
lawful goods or services put to unlawful
use.”] Both the element of knowledge of the
illegal use of the goods or services and the
element of intent to further that use must be
present in order to make the supplier a
participant in a criminal conspiracy.
Proof of knowledge is ordinarily a question of
fact and requires no extended discussion in
the present case. The knowledge of the
supplier was sufficiently established when
Lauria admitted he knew some of his
customers were prostitutes and admitted he
knew that Terry, an active subscriber to his
service, was a prostitute. In the face of these
admissions he could scarcely claim to have
relied on the normal assumption an operator
of a business or service is entitled to make,
that his customers are behaving themselves
in the eyes of the law. Because Lauria knew
in fact that some of his customers were
prostitutes, it is a legitimate inference he
knew they were subscribing to his answering
service for illegal business purposes and
were using his service to make assignations
for prostitution. On this record we think the
prosecution is entitled to claim positive
knowledge by Lauria of the use of his service
to facilitate the business of position.
The more perplexing issue in the case is the
sufficiency of proof of intent to further the
criminal enterprise.
The element of intent may be proved either
by direct evidence, or by evidence of
circumstances from which an intent to
further a criminal enterprise by supplying
lawful goods or services may be inferred.
Direct evidence of participation, such as
advice from the supplier of legal goods or
services to the user of those goods or services
on their use for illegal purposes, such
evidence as appeared in a companion case
we decide today, People v. Roy, 59 Cal.Rptr.
636, provides the simplest case. When the
intent to further and promote the criminal
enterprise comes from the lips of the supplier
himself, ambiguities of inference from
circumstance need not trouble us. But in
cases where direct proof of complicity is
lacking, intent to further the conspiracy must
be derived from the sale itself and its
surrounding circumstances in order to
establish the supplier’s express or tacit
agreement to join the conspiracy.
In the case at bench the prosecution argues
that since Lauria knew his customers were
using his service for illegal purposes but
nevertheless continued to furnish it to them,
he must have intended to assist them in
carrying out their illegal activities. Thus
through a union of knowledge and intent he
became a participant in a criminal
conspiracy. Essentially, the People argue that
knowledge alone of the continuing use of his
telephone facilities for criminal purposes
provided a sufficient basis from which his
23
intent to participate in those criminal
activities could be inferred.
In examining precedents in this field we find
that sometimes, but not always, the criminal
intent of the supplier may be inferred from
his knowledge of the unlawful use made of
the product he supplies. Some consideration
of characteristic patterns may be helpful.
1. Intent may be inferred from
knowledge, when the purveyor of legal
goods for illegal use has acquired a stake in
the venture. (United States v. Falcone, 2 Cir.,
109 F.2d 579, 581.) For example, in Regina v.
Thomas, (1957), 2 All.E.R. 181, 342, a
prosecution for living off the earnings of
prostitution, the evidence showed that the
accused, knowing the woman to be a
convicted prostitute, agreed to let her have
the use of his room between the hours of 9
p.m. and 2 a.m. for a charge of 3 a night. The
Court of Criminal Appeal refused an appeal
from the conviction, holding that when the
accused rented a room at a grossly inflated
rent to a prostitute for the purpose of
carrying on her trade, a jury could find he
was living on the earnings of prostitution.
In the present case, no proof was offered of
inflated charges for the telephone answering
services furnished the codefendants.
2. Intent may be inferred from
knowledge, when no legitimate use for the
goods or services exists. The leading
California case is People v. McLaughlin, 111
Cal.App.2d 781, 245 P.2d 1076, in which the
court upheld a conviction of the suppliers of
horse-racing information by wire for
conspiracy to promote bookmaking, when it
had been established that wire service
information had no other use than to supply
information needed by bookmakers to
conduct illegal gambling operations.
In Rex v. Delaval (1763) 3 Burr. 1434, 97 E.R.
913, the charge was unlawful conspiracy to
remove a girl from the control of Bates, a
musician to whom she was bound as an
apprentice, and place her in the hands of Sir
Francis Delaval for the purpose of
prostitution. Lord Mansfield not only upheld
the charges against Bates and Sir Francis, but
also against Fraine, the attorney who drew
up the indentures of apprenticeship
transferring custody of the girl from Bates to
Sir Francis. Fraine, said Lord Mansfield, must
have known that Sir Francis had no facilities
for teaching music to apprentices so that it
was impossible for him to have been
ignorant of the real intent of the transaction.
In Shaw v. Director of Public Prosecutions,
(1962) A.C. 220, the defendant was convicted
of conspiracy to corrupt public morals and of
living on the earnings of prostitution, when
he published a directory consisting almost
entirely of advertisements of the names,
addresses, and specialized talents of
prostitutes. Publication of such a directory,
said the court, could have no legitimate use
and serve no other purpose than to advertise
the professional services of the prostitutes
whose advertisements appeared in the
directory. The publisher could be deemed a
participant in the profits from the business
activities of his principal advertisers.
Other services of a comparable nature come
to mind: the manufacturer of crooked dice
and marked cards who sells his product to
gambling casinos; the tipster who furnishes
information on the movement of law
enforcement officers to known lawbreakers.
(Cf. Jackson v. State of Texas, 164 Tex.Cr.R.
276, 298 S.W.2d 837 (1957), where the
furnisher of signaling equipment used to
warn gamblers of the police was convicted of
aiding the equipping of a gambling place.) In
such cases the supplier must necessarily have
an intent to further the illegal enterprise
since there is no known honest use for his
goods.
However, there is nothing in the furnishing
of telephone answering service which would
necessarily imply assistance in the
performance of illegal activities. Nor is any
inference to be derived from the use of an
answering service by women, either in any
particular volume of calls, or outside normal
working hours. Night-club entertainers,
registered nurses, faith healers, public
stenographers, photographic models, and
freelance substitute employees, provide
examples of women in legitimate
24
occupations whose employment might cause
them to receive a volume of telephone calls
at irregular hours.
3. Intent may be inferred from knowledge,
when the volume of business with the buyer
is grossly disproportionate to any legitimate
demand, or when sales for illegal use amount
to a high proportion of the seller’s total
business. In such cases an intent to
participate in the illegal enterprise may be
inferred from the quantity of the business
done. For example, in Direct Sales, supra, the
sale of narcotics to a rural physician in
quantities 300 times greater than he would
have normal use for provided potent
evidence of an intent to further the illegal
activity. In the same case the court also found
significant the fact that the wholesaler had
attracted as customers a disproportionately
large group of physicians who had been
convicted of violating the Harrison Act. In
Shaw v. Director of Public Prosecutions,
(1962) A.C. 220, almost the entire business of
the directory came from prostitutes.
No evidence of any unusual volume of
business with prostitutes was presented by
the prosecution against Lauria.
Inflated charges, the sale of goods with no
legitimate use, sales in inflated amounts,
each may provide a fact of sufficient moment
from which the intent of the seller to
participate in the criminal enterprise may be
inferred. In such instances participation by
the supplier of legal goods to the illegal
enterprise may be inferred because in one
way or another the supplier has acquired a
special interest in the operation of the illegal
enterprise. His intent to participate in the
crime of which he has knowledge may be
inferred from the existence of his special
interest.
Yet there are cases in which it cannot
reasonably be said that the supplier has a
stake in the venture or has acquired a special
interest in the enterprise, but in which he has
been held liable as a participant on the basis
of knowledge alone. Some suggestion of this
appears in Direct Sales, supra, where both
the knowledge of the illegal use of the drugs
and the intent of the supplier to aid that use
were inferred. In Regina v. Bainbridge (1959),
3 W.L.R. 656 (CCA 6), a supplier of oxygen-
cutting equipment to one known to intend to
use it to break into a bank was convicted as
an accessory to the crime. In Sykes v.
Director of Public Prosecutions (1962) A.C.
528, one having knowledge of the theft of 100
pistols, 4 submachine guns, and 1960 rounds
of ammunition was convicted of misprision
of felony for failure to disclose the theft to
the public authorities. It seems apparent
from these cases that a supplier who
furnishes equipment which he Knows will be
used to commit a serious crime may be
deemed from that knowledge alone to have
intended to produce the result. Such proof
may justify an inference that the furnisher
intended to aid the execution of the crime
and that he thereby became a participant. For
instance, we think the operator of a
telephone answering service with positive
knowledge that this service was being used
to facilitate the extortion of ransom, the
distribution of heroin, or the passing of
counterfeit money who continued to furnish
the service with knowledge of its use, might
be chargeable on knowledge alone with
participation in a scheme to extort money, to
distribute narcotics, or to pass counterfeit
money. The same result would follow the
seller of gasoline who knew the buyer was
using his product to make Molotov cocktails
for terroristic use.
Logically, the same reasoning could be
extended to crimes of every description. Yet
we do not believe an inference of intent
drawn from knowledge of criminal use
properly applies to the less serious crimes
classified as misdemeanors. The duty to take
positive action to dissociate oneself from
activities helpful to violations of the criminal
law as far stronger and more compelling for
felonies than it is for misdemeanors or petty
offenses. In this respect, as in others, the
distinction between felonies and
misdemeanors, between more serious and
less serious crime, retains continuing vitality.
25
In historically the most serious felony,
treason, an individual with knowledge of the
treason can be prosecuted for concealing and
failing to disclose it. (Pen.Code, s 38; 18
U.S.Code, s 2382.) In other felonies, both at
common law and under the criminal laws of
the United States, an individual knowing of
the commission of a felony is criminally
liable for concealing it and failing to make it
known to proper authority. (4 Blackstone
121; Sykes v. Director of Public Prosecutions
(1962) A.C. 528; 18 U.S.Code, s 4.) But this
crime, known as misprision of felony, has
always been limited to knowledge and
concealment of felony and has never
extended to misdemeanor. A similar
limitation is found in the criminal liability of
an accessory, which is restricted to aid in the
escape of a principal who has committed or
been charged with a Felony. (Pen.Code, s 32.)
We believe the distinction between the
obligations arising from knowledge of a
felony and those arising from knowledge of a
misdemeanor continues to reflect basic
human feelings about the duties owed by
individuals to society. Heinous crime must
be stamped out, and its suppression is the
responsibility of all. Backun v. United States,
4 Cir., 112 F.2d 635, 636, 637.)
Venial crime and crime not evil in itself
present less of a danger to society, and
perhaps the benefits of their suppression
through the modern equivalent of the posse,
the hue and cry, the informant, and the
citizen’s arrest, and outweighed by the
disruption to everyday life brought about by
amateur law enforcement and private
officiousness in relatively inconsequential
delicts which do not threaten our basic
security. The subject has been summarized in
an English text on the criminal law: ‘Failure
to reveal a felony to the authorities is now
authoritatively determined to be misprision
of felony, which is a commonwealth
misdemeanour; misprision of treason is
punishable with imprisonment for life. * * *
No offense is commited in failing to disclose
a misdemeanour. * * *
“To require everyone, without distinction, as
to the nature and degree of the offence, to
become an accuser, would be productive of
inconvenience in exposing numbers to penal
prosecutions, multiplying criminal charges,
and engendering private dissension. It may
sometimes be more convenient that offences
should be passed over, than that all should
indiscriminately be made the subject of
prosecution; and a law would be considered
to be harsh and impolitic, if not unjust, which
compelled every party injured by a criminal
act, and, still more so, to compel everyone
who happened to know that another had
been so injured, to make a public disclosure
of the circumstances. Here, therefore, there is
reason for limiting the law against mere
misprisions to the concealment of such
crimes as are of an aggravated complexion.”
(Criminal Law, Glanville Williams (2d ed.) p.
423.)
With respect to misdemeanors, we conclude
that positive knowledge of the supplier that
his products or services are being used for
criminal purposes does not, without more,
establish an intent of the supplier to
participate in the misdemeanors.
With respect to felonies, we do not decide the
converse, viz. that in all cases of felony
knowledge of criminal use alone may justify
an inference of supplier’s intent to participate
in the crime. The implications of Falcone
make the matter uncertain with respect to
those felonies which care merely prohibited
wrongs. See also Holman v. Johnson, 98 E.R.
1120, (1775) (sale and delivery of tea at
Dunkirk known to be destined for smuggling
into England not an illegal contract). But
decision on this point is not compelled, and
we leave the matter open.
From this analysis of precedent we deduce
the following rule: the intent of a supplier
who knows of the criminal use to which his
supplies are put to participate in the criminal
activity connected with the use of his
supplies may be established by (1) direct
evidence that he intends to participate, or (2)
through an inference that he intends to
26
participate based on, (a) his special interest in
the activity, or (b) the aggravated nature of
the crime itself.
When we review Lauria’s activities in the
light of this analysis, we find no proof that
Lauria took any direct action to further,
encourage, or direct the call-girl activities of
his codefendants and we find an absence of
circumstances from which his special interest
in their activities could be inferred. Neither
excessive charges for standardized services,
nor the furnishing of services without a
legitimate use, nor an unusual quantity of
business with call girls, are present. The
offense which he is charged with furthering
is a misdemeanor, a category of crime which
has never been made a required subject of
positive disclosure to public authority.
Under these circumstances, although proof
of Lauria’s knowledge of the criminal
activities of his patrons was sufficient to
charge him with that fact, there was
insufficient evidence that he intended to
further their criminal activities, and hence
insufficient proof of his participation in a
criminal conspiracy with his codefendants to
further prostitution. Since the conspiracy
centered around the activities of Lauria’s
telephone answering service, the charges
against his codefendants likewise fail for
want of proof.
In absolving Lauria of complicity in a
criminal conspiracy we do not wish to imply
that the public authorities are without
remedies to combat modern manifestations
of the world’s oldest profession. Licensing of
telephone answering services under the
police power, together with the revocation of
licenses for the toleration of prostitution, is a
possible civil remedy. The furnishing of
telephone answering service in aid of
prostitution could be made a crime. (Cf.
Pen.Code, s 316, which makes it a
misdemeanor to let an apartment with
knowledge of its use for prostitution.) Other
solutions will doubtless occur to vigilant
public authorities if the problem of call-girl
activity needs further suppression. The order
is affirmed.
27