State v. Alfonsi
| Decision Date | 10 January 1967 |
| Citation | 147 N.W.2d 550,33 Wis.2d 469 |
| Parties | STATE of Wisconsin, Respondent, v. Paul ALFONSI, Appellant. |
| Court | Wisconsin Supreme Court |
John C. Fritschler, Jr., Madison, Ray T. McCann, Milwaukee, and Donald C. O'Melia, Rhinelander, of counsel, for appellant.
Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., Michael B. Torphy, Jr., Dist. Atty., Madison, for respondent.
Stewart G. Honeck, Milwaukee, and A. W. Langner, Jr., Sheboygan Falls, for Willis Hutnik, as amicus curiae.
Criminal Intent in Bribery.
On a number of occasions this court has had to decide whether guilt under a given statute required a specific criminal state of mind. In the recent case of State v. Croy (1966), 32 Wis.2d 118, 145 N.W.2d 118, the accused was charged under sec. 943.21, Stats., with leaving a hotel without paying his bill. An earlier Wisconsin statute had explicitly required an 'intent to defraud,' but in the amended statute that phrase was omitted. We stated in the Croy Case, at page 122, 145 N.W.2d at page 120, that notwithstanding the amendment, 'the statute requires a specific intention on the part of the wrongdoer so that conviction cannot be had in the absence of an act of fraud.' In view of our holding, an accused charged under the new statute would clearly be entitled to an instruction that the state must prove an intent to defraud the innkeeper, even though the words 'intent to defraud' are no longer contained in the statute itself.
Other cases in which this court has wrestled with the problem of construing a statute to determine whether mens rea was required are City of West Allis v. Megna (1965), 26 Wis.2d 545, 548, 133 N.W.2d 252, and Pauly v. Keebler (1921), 175 Wis. 428, 185 N.W. 554.
The supreme judicial court of Massachusetts in a case decided on November 3, 1966, Commonwealth v. Corey, 221 N.E.2d 222, acknowledged that it is 'competent for the Legislature to define criminal offences without any element of scienter;' however, the court also observed that the 'existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.'
In the case at bar, despite the defendant's formal application, the trial court declined to give an instruction to the jury regarding the requirement of a corrupt intent in order to find Mr. Alfonsi guilty of bribery under sec. 946.10(2), Stats. We must determine whether a specific criminal intent is required for conviction under sec. 946.10(2).
Prior to its amendment in the 1953 Criminal Code, bribery was defined in sec. 346.06(1), Stats. 1951, and that statute (quoted in full above) expressly provided that it applied to an 'officer who shall corruptly accept or receive * * *.' (Emphasis added.) It is the state's contention that although the word 'corruptly' was dropped, the 'flavor of wickedness' was covered by other requirements in the new statute. Says the state in its brief, 'In other words, the concept of corruption as an element of the crime is retained but is spelled out in definite meaningful terms.'
There are a number of very persuasive reasons for the belief that the 'concept of corruption' and 'flavor of wickedness' were fully retained in the statute notwithstanding the changes in the criminal law brought about by the adoption of the 1953 Criminal Code. The judiciary committee report on the 1953 Criminal Code does not exhibit a legislative design to alter the crime of bribery so as to eliminate the requirement of a criminal intent. Indeed, the committee report contains language which tends to contradict such a major upheaval. At page 171 of the committee's report, the following statement appears: 'Bribery of officers is restated in the new section except that public employes as well as public officers are included in the new section.' Insofar as this suggests that a substantive change contemplated in the restatement of the crime was the inclusion of public employes, it tends to contradict the argument that so cataclysmic an alteration as the removal of corrupt intent was planned by the legislature.
In discussing the new section, the report also states:
The foregoing section also tends to demonstrate that the framers of the new enactment did not have in mind the elimination of scienter but, on the contrary, preserved the 'concept of corruption' by requiring that the various acts be done 'with an understanding.' In our view, the latter phrase brings sec. 946.10(2), Stats., within the scope of sec. 939.23 regarding the assertion of criminal intent in a statute.
As the supreme judicial court of Massachusetts stated in the Corey Case, the element of scienter is the rule rather than the exception in our criminal jurisprudence. This is particularly true with respect to the crime of bribery, which by its inherent nature has traditionally required a corrupt motivation; an illustration of the latter proposition is found in a 1937 decision of the Ohio court of appeals. In State v. Harwood, 26 Ohio Law Abst. 473, 474, the court said:
'The gravamen of the crime of bribery lays in the despicable act of unlawfully and corruptly soliciting and accepting sums of money or things of value to influence an official's acts with respect to his official duty.'
Our analysis of the language employed in the statute and its legislative background persuades this court that under sec. 946.10(2), Stats., the crime of bribery is not one that was meant to be malum prohibitum but, on the contrary, is one that requires an evil or corrupt motive to be proved.
There are several other states where the element of scienter in the bribery statute is not recited any more explicitly than it is in the Wisconsin statute, yet there are indications by other courts that a corrupt intent is nevertheless required. We fully recognize that comments by the courts of other states in considering their own statutes are not controlling as to what the Wisconsin legislature meant in this particular statute. However, we note some of the observations of other courts to illustrate the fact that so far as bribery is concerned, courts are reluctant to assume that the requirement of a corrupt intent has been eradicated.
For example, the Missouri statute (Ann.Mo.Stats. sec. 558.020) prohibits members of the legislature from accepting gifts 'under any agreement' that the legislator would act in a certain way on questions before him. Although the statute does not expressly require corruptness, the Missouri court stated that 'a corrupt agreement prior to the official's act is essential.' State v. Brown (1954), 364 Mo. 759, 766, 267 S.W.2d 682, 686.
The supreme court of errors of Connecticut also indicated the necessity of mens rea even though its need is not expressly required in the bribery statute. In State v. Foord (1955), 142 Conn. 285, 293, 113 A.2d 591, 595, the court quoted the bribery statute (sec. 8487), which provides in part:
'Any * * * member of the general assembly, who shall accept or receive * * * any * * * valuable thing, except the compensation provided by law, * * * for the purpose of influencing (or affecting) the conduct or behavior * * *.'
In the Foord Case, the court said:
'To find the defendants guilty, it was essential for the court to decide that the payment and acceptance of the money were for the corrupt purpose alleged in the information.'
The court of appeals of Maryland considered a charge under a bribery statute relating to athletic contests; sec. 30, art. 27 of the Maryland Code makes no direct reference to mens rea. In Glickfield v. State (1953), 203 Md. 400, 403, 101 A.2d 229, 231, the Maryland court examined the word 'bribery' in connection with that statute and stated:
In a North Carolina decision, State v. Greer (1953), 238 N.C. 325, 328, 77 S.E.2d 917, 919, the court considered General Statute 14--218, which provides in part as follows:
'(I)f any person shall offer a bribe, whether it be accepted or not, be shall be guilty of a felony.'
In the Greer Case, the court points out that '(t)his statute neither defines bribery, nor set forth its essential elements.' The court goes on then to define the term as follows:
Mr. Alfonsi's counsel made a timely demand for an instruction to the jury that a requirement for conviction was that the accused had engaged in this transaction with a guilty mind. The trial court's refusal to give this crucial instruction constituted prejudicial error and necessitates a new trial.
Other Assignments of Error.
This court bases its reversal upon a determination that the crime of bribery is...
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