State v. McDowell, Cr. N

• Decision Date: 28 October 1981
• Docket Number: Cr. N
• Citation: 312 N.W.2d 301
• Parties: STATE of North Dakota, Plaintiff, v. LaVonne S. McDOWELL, Defendant. o. 790.
• Court: North Dakota Supreme Court

Page 301

312 N.W.2d 301

STATE of North Dakota, Plaintiff, v. LaVonne S. McDOWELL, Defendant.

Cr. No. 790.

Supreme Court of North Dakota.

Oct. 28, 1981.

Larry E. Stern, Asst. State's Atty., Fargo, for plaintiff.

William Kirschner, Fargo, for defendant.

SAND, Justice.

The issues under consideration were certified to us pursuant to Rule 47.1 of the North Dakota Rules of Appellate Procedure by the Honorable Donald J. Cooke, Judge of Cass County Court with Increased Jurisdiction.

The certified questions and answers by the trial court are:

(1) Is it constitutional to subject an offender to imprisonment under Section 6-08-16 of the North Dakota Century Code? Answer: No

(2) If it is unconstitutional to subject an offender to imprisonment under Section 6-08-16 of the North Dakota Century Code, is it constitutional to subject such offender to a fine? Answer: Yes

The trial court's findings of fact of all pertinent facts needed to resolve the question of law are as follows:

"On or about the 19th day of October, 1980 in Fargo, County of Cass, the defendant made or drew a check upon the State Bank of Burleigh County, Bismarck, North Dakota, in the sum of $13.50, dated October 19, 1980, made payable to the General Store and uttered and delivered the same to said General Store of Fargo, North Dakota, and at the time of such making, drawing, uttering or delivering, or at the time of presentation for payment made within one week of the original delivery thereof, said defendant did not have sufficient funds in, or credit with such bank to meet such check in full upon presentation. The defendant thus submits all the material allegations and elements of the complaint and thus admits being an offender of the statute."

Section 6-08-16, North Dakota Century Code, provides as follows:

"1. Any person who for himself or as the agent or representative of another, or as an officer or member of a firm, company, copartnership, or corporation makes or draws or utters or delivers any check, draft, or order for the payment of money upon a bank, banker, or depository, and at the time of such making, drawing, uttering, or delivery, or at the time of presentation for payment if made within one week after the original delivery thereof, has not sufficient funds in or credit with such bank, banker, or depository to meet such check, draft, or order in full upon its presentation, shall be guilty of a class B misdemeanor. The word 'credit' as used in this section shall mean an arrangement or understanding with the bank, banker, or depository for the payment of such check, draft, or order. The making of a postdated check knowingly received as such, or of a check issued under an agreement with the payee that the same would not be presented for payment for a time specified, shall not constitute a violation of this section.

"2. A notice of dishonor may be sent by the holder of the check upon dishonor, said notice to be in substantially the following form:

Notice of Dishonored Check

Date ______

Name of Issuer ______

Street Address ______

City and State ______

You are according to law hereby notified that a check dated ____, 19__, drawn on the ______ Bank of ______ in the amount of ______ has been returned unpaid with the notation the payment has been refused because of nonsufficient funds. Within ten days from the receipt of this notice, you must pay or tender to

such instrument in full.

"Such notice may also contain a recital of the penal provisions of this section ...

"The criminal complaint for the offense of issuing a check, draft, or money order without sufficient funds under this section must be executed within not more than ninety days after the dishonor by the drawee of such instrument for nonsufficient funds. The failure to execute a complaint within said time shall bar the criminal charge under this section."

Initially we note, and it is conceded by both parties, that a culpability element is not required to constitute a violation of NDCC § 6-08-16. ¹

The defendant contends that NDCC § 6-08-16 is unconstitutional in that it does not set out a mens rea, intent, or culpability and in effect provides for strict criminal liability. The defendant further contends that if the statute is not unconstitutional for those reasons, then only a fine, but no incarceration penalty, may be imposed.

The State asserts that the statute, NDCC § 6-08-16, is a valid regulatory statute and that a violation of its provisions constitute a class B misdemeanor for which the penalty of a maximum of 30 days' imprisonment and a fine of $500, or both, may be imposed. NDCC § 12.1-32-01(5).

The pivotal issue we must resolve is: May the Legislature enact laws making the violation thereof a matter of strict criminal liability regardless of any mens rea, intent, or culpability involved? If so, is there any limitation as to the penalty which may be imposed?

The secondary issue is: If the Legislature may enact such laws, may the penalty be more than a fine, or may incarceration be part of the penalty?

At common law, criminal liability required proof of both a guilty mind and the proscribed physical act. W. LaFave & A. Scott, Handbook on Criminal Law 192 (1972). The advent of modern statutory crime which has no antecedent in common law, has, to a limited degree modified the traditional rule. See, e. g., United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922); United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922). In Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957), the Supreme Court stated:

"We do not go with Blackstone in saying that a 'vicious will' is necessary to constitute a crime, ... for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition."

However, Lambert v. California, supra, makes it clear the Legislature's "latitude" is not unlimited.

Both the defendant and the State relied heavily upon Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). But that case is not dispositive of the issues under consideration here for several reasons. In Morissette, the defendant, after hunting on a government bombing range, carried away and sold three tons of spent bomb casings in violation of 18 U.S.C. § 641. This statute, in pertinent part, provides:

"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 ... or thing of value of the United States ... shall be fined not more than $10,000 nor imprisoned not more than ten years, or both ...."

In Morissette the trial court refused to submit, or to allow defendant's counsel to argue to the jury that the defendant acted without wrongful or criminal intent, and instructed the jury that lack of criminal intent was not a defense, and that such intent was "presumed by his own act." The indictment, however, charged that he "did unlawfully, willfully, and knowingly steal and convert" property of the United States of the value of $84 in violation of 18 U.S.C. § 641.

The issue was whether or not Congress intended to impose liability for taking Government property where the defendant honestly believed the property had been abandoned.

The Morissette Court at 342 U.S. 274, 72 S.Ct. 255, 96 L.Ed. 306, said:

"Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury."

The indictment clearly included intent as a part of the crime charged even though the statute may not have specifically included intent. The Court observed that stealing, purloining, etc., was a common law offense and that intent was an ingredient of that crime. The Supreme Court then construed the statute to require proof that the defendant had knowledge he was taking Government property.

But more significantly, Morissette did not directly or indirectly rule on the issues that we have here under consideration. The Court specifically said:

"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 (United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922)) and Behrman (United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922)) cases has our approval and adherence for the circumstances to which it was there applied." Morissette, supra, 342 U.S. at 260, 72 S.Ct. at 248, 96 L.Ed. at 299.

In Balint the defendant was charged with unlawfully selling a derivative of opium and a certain amount of a derivative of coca leaves contrary to the provisions of § 2 of the Narcotic Act of December 17, 1914, ² and not pursuant to any written order or form issued in blank for that purpose by the commissioner of internal revenue. The defendants demurred on the ground that the charge failed to state that they sold the inhibited drugs knowing them to be such. The statute did not make knowledge an element of the offense. In determining whether or not there was a violation of due process for punishing a person for violating a crime which involved no culpability, the Court responded by saying:

"But that objection is considered and overruled in Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 69, 70, 30 S.Ct. 663, 666, 54 L.Ed. 930, in which it was held that in the prohibition or punishment of particular acts, the state may in the maintenance of a public policy provide 'that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.' Many instances of this are to be found in...