Speidel v. State
|21 October 1969
|460 P.2d 77
|Robert E. SPEIDEL, Appellant, v. STATE of Alaska, Appellee.
|Alaska Supreme Court
Douglas B. Baily, Dist. Atty., Fairbanks, for appellee.
Before DIMOND, RABINOWITZ, BONEY and CONNOR, JJ.
Appellant was convicted by a jury of failure to return a rented motor vehicle. From this conviction an appeal has been taken.
The indictment alleged a violation of AS 28.35.026. Appellant moved to dismiss the indictment because the statute failed to provide for proof of criminal intent before conviction. The motion was denied.
At trial it was shown that appellant had rented an automobile from Avis Rent-A-Car Company pursuant to a signed agreement, and had failed to return the automobile at the time stated in the agreement. In regard to the allegation that AS 28.35.026 failed to require proof of criminal intent, the trial judge said:
I find that the statute does require an element of intent as such as to constitute * * * wilfull conduct on the part of the person charged that his indifference must be a conscious indifference * * * whether the wrong is done to the owner. * *
AS 28.35.026 provides:
(a) A person in possession of a motor vehicle under an agreement in writing which requires him to return the vehicle to a particular place or at a particular time who refuses or wilfully neglects to return it to the place and at the time specified in the agreement in writing, or who secretes, converts, sells or attempts to sell the vehicle or any part of it is, upon conviction, punishable by imprisonment for not more than five years, or by a fine of not more than $1,000, or by both.
(b) As used in this section, 'wilfully neglects' means omits, fails, or forbears, with a conscious purpose to injure, or without regard for the rights of the owner, or with indifference whether a wrong is done the owner or not.
Appellant asserts that the trial court's interpretation of AS 28.35.026 is incorrect. He states that failure to return a rented automobile under the statute is a felony and requires proof of criminal intent for conviction. He argues that AS 28.35.026 has no criminal intent requirement and is, therefore, invalid.
It is said to be a universal rule that an injury can amount to a crime only when inflicted by intention-that conduct cannot be criminal unless it is shown that one charged with criminal conduct had an awareness or consciousness of some wrongdoing. 1
But this rule is not without exception. During the past century there has been an ever increasing tendency to impose new duties with criminal sanctions which disregard any ingredient of intent. This has been caused primarily by the industrial revolution, out of which grew the necessity of imposing more stringent duties on those connected with particular industries, trades, properties, or activities that affect public health, safety or welfare. As the United States Supreme Court pointed out in Morissette v. United States:
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, the 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. 2
The statute under consideration here, however, ever, does not represent what could be classified as a 'public welfare offense.' The health, safety and welfare of the public is not involved. All that the statute is concerned with is the protection of one select group of persons in the business community-those who rent automobiles.
Moreover, as was indicated in Morissette, penalties for public welfare offenses 'commonly are relatively small, and conviction does no grave damage to an offender's reputation.' 3 That is not true here. The penalty is not small-the offender under AS 28.35.026 is subject to conviction of a felony and imprisonment for a term of five years. 4 This would do considerable damage to one's reputation. The basis for dispensing with the requirement of criminal intent with respect to 'public welfare' types of offenses has no application in this case.
It is true that one will sometimes find felony statutes that are silent on the subject of criminal intent. But these are instances where the states have codified the common law of crimes, and their courts have assumed that the omission of the requirement of criminal intent did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it needed no statutory affirmation. Thus, as to felony-type offenses codified from the common law, the courts have found an implication of intent. 5 Representative of these instances are larceny-type offenses where the state courts have consistently retained a requirement of criminal intent. 6
But the statute under consideration is not of that type. It is not silent as to the mental elements of the acts made criminal, so as to give rise to the inference that criminal intent is inherent in the idea of the offense denounced. A person is guilty of a crime under AS 28.35.026 if he 'willfully neglects' to return a motor vehicle to the owner. The term 'willfully neglects' is defined as meaning-
omits, fails, or forbears, with a conscious purpose to injure, or without regard for the rights of the owner, or with indifference whether a wrong is done the owner or not.
By defining 'willfully neglects' so specifically, the legislature has indicated that the ordinary criminal or felonious intent, as in the case of larceny (the intent to deprive the owner permanently of the property taken 7), is not inherent in the offense of failing to return a rented automobile. In place of inherent criminal intent the legislature has substituted something else. The question if whether this substitution meets the conventional requirement for criminal conduct in this kind of case, i. e., the infliction of injury on the owner of a vehicle by intention, with awareness of some wrongdoing.
By one of the definitions of 'willfully neglects' the statute makes it a criminal offense to fail to return a motor vehicle 'with conscious purpose to injure.' 8 Here the statute incorporates an element of conscious wrongdoing or criminal intent. To that extent the statutory offense meets the conventional requirement of criminal conduct.
But that is not so as to the other definitions which make it a crime to fail to return a motor vehicle 'without regard for the rights of the owner' or 'with indifference whether a wrong is done the owner or not.' 9 Under this terminology it is possible for one to be found guilty of the offense when there was an entire lack of any conscious deprivation of property or intentional injury. If one fails to return an automobile out of neglect, without any intention to deprive the owner of his property or to convert the property to his own use, or of doing wrong to the owner, he is made guilty of a felony although he may have acted unwittingly or inadvertently or negligently. This is contrary to the general conditions of penal liability requiring not only the doing of some act by the person to be held liable, but also the existence of a guilty mind during the commission of the act.
Although an act may have been objectively wrongful, the mind and will of the doer of the act may have been innocent. In such a case the person cannot be punished for a crime, unless it is one such as the 'public welfare' type of offense, which we have discussed, where the penalties are relatively small and conviction does no great damage to an offender's reputation. Under the terms of AS 28.35.026 there is no escape from a felony conviction and a possible five-year prison term for simple neglectful or negligent failure to return a rented automobile at the time specified in the rental agreement. To make such an act, without consciousness of wrongdoing or intention to inflict injury, a serious crime, and criminals of those who fall within its interdiction, is inconsistent with the general law. To convict a person of a felony for such an act, without proving criminal intent, is to deprive such person of due process of law. To the extent that AS 28.35.026 permits that to happen, it is invalid and of no effect. 10
However, the statute is invalid and ineffective only to the extent mentioned, and not in its entirety. It is severable by virtue of AS 01.10.030 which provides:
Any law heretofore or hereafter enacted by the Alaska legislature which lacks a severability clause shall be construed as though it contained the clause in the following language, 'If any provision of this Act, or the application thereof to any person or circumstances is held invalid, the remainder of this...
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