BUSINESS UPSWING

Legal Officers may expect an increase in business as a result of an article scheduled to appear in the "Safety Review" and in a letter to Navy and Marine Corps drivers, both published by the Safety Branch, Office of Industrial Relations. This article, addressed to the attention of Investigation Officers and drivers of Navy vehicles, cautions against the disclosure of information contained in official records and the completion of forms which may prejudice the interests of the United States. Drivers who are required by law to make. official police reports will be directed by the article and letter to submit them for approval to the legal officer of the Naval Activity or to the police. This is advanced as the most practicable method of insuring that undesirable disclosures of information are not made.

The subject is becoming increasingly important as more and more persons are availing themselves of the right, given by the Federal Tort Claims Act, to sue the United States in tort. Although, as a general rule, statements of drivers may not be introduced in evidence to prove the truth of the material therein contained they can be used to discredit the testimony of the person making the statement. Any statement, form, or document should be carefully examined therefore to insure that it does not contain material prejudicial to the interests of the Government. Most automobile casualty insurance policies contain a clause which permits the insurance company to void the policy if the insured admits liability. The practice outlined above is an effort to afford the United States Government much the same protection, as a practical result, in view of the passage of the Federal Tort Claims Act making the United States liable

to tort.

The foregoing is not to be construed as limiting or restricting the cooperation expected by Naval Activities with United States Attorneys. It also does not affect the policy set forth in the JAG's letter of September 1947 regarding legal assistance for operators of Naval vehicles involved in collisions (published in the November issue of the JAG Journal).

SOUNDING BOARD

Lest the impression get abroad that this is an office publication, exclusively, we go on record right now to the effect that this is your publication, too. We don't believe that all the legal or literary ability in the Navy is concentrated in Washington, any more than we believe all the tea comes from China. The JAG JOURNAL is published here because the JAG, who sponsors it, is here; also, what funds are available for the purpose, and the Navy's publication and processing group. And because Department policy

is so often involved it has been, and will continue to be, published in Washington, where those concerned with policy can keep a firm hold on it.

We will welcome articles on legal topics from readers, including Reserve officers on inactive duty. We know full well that each of you has had occasion at some time to "work up" a brief on an intricate legal point, and that copies of these masterpieces or the notes, at least, are in your files, doing nobody any good now. Perhaps there is some particular phase of law in which you are an expert, which you believe can bear exposition for the rest of us. Don't "hold out" on your brethren, but share the mental wealth. If you believe a column of legal humor would enliven the columns, you have lots of company--including the editor. However, just saying so, without sending along a sample of your wares, makes you a "nonvoting member".

Articles may be of any length, but it is believed that interest is lost, unless the subject matter is particularly controversial, if it extends for more than two columns. Topics which require extended treatment and are timely will be given in installments, a la Sat Eve Post. The theme song of the Navy (and all other government agencies) being "No Dough, So Heave Ho! we can offer no financial inducement. However, we don't make you send any box, tops, corks or candy wrappers, either.

The terms mens rea" (guilty mind) and criminal intent" are, according to general concept in the terms, misnomers. The purpose of this article is to point out why this is true, to discuss in a general way the variance in degree of intent required in the several classes of offenses, and to comment briefly on some of the defenses relative to criminal intent. No attempt will be made to set forth with mathematical certainty the degree of criminal intent necessary to support a conviction on each separate offense triable by court-martial, for such a treatment of the subject would extend this article beyond the space allotted.

To say that an accused must have had a "guilty mind" before he could become criminally liable for his act would result in allowing a person who does not realize the wrongfulness of his act to escape punishment, where another individual who has such realization would be convicted for the iden

tical act. The law does not contemplate such injustice, all persons being presumed to know what acts are unlawful. Neither can it be said that an act is not a crime because it was prompted by laudable motives or that immorality is essential to crime. Therein lies the distinction between "motive" and "intent". For example, A killed B in order to rid the community of a dangerous criminal. He is none the less guilty by reason of his laudable motive. His criminal liability accrued by reason of the fact that he voluntarily did an unlawful act for which a penalty had been provided.

Most of the offenses triable by courtmartial fall within one of the following general classes with respect to the degree of intent required:

(1) Offenses of which a specific intent is an element.

(2) Offenses not requiring a specific intent, and in which the voluntary act gives rise to a rebuttable presumption that it was done with the requisite criminal intent.

(3) Offenses, the criminal intent of which may be implied from negligence carelessness.

or

The offenses falling within classes (1) and (2) above require an affirmative general intent, which may be inferred from a voluntary overt act prohibited by law or custom of the service. In addition to this general intent, the offenses falling within class (1) require a specific intent not essential in the offenses falling within class (2). For example, in order that a person may be legally convicted of the crime of theft, it must be proved beyond a reasonable doubt that he voluntarily took into his possession property belonging to another without his permission. In the absence of evidence to the contrary, a presumption of general criminal intent as to this overt act arises by reason of the commission of the act. Since, however, the crime of the ft requires a specific intent to permanently deprive the rightful owner of his property, he cannot be legally convicted of the crime unless such specific intent is alleged and proved. In the event it is alleged and proved that the accused entertained the specific intent, the act of taking the property was, of necessity, voluntary, and for this reason general criminal intent is rarely referred to in offenses involving specific intent; although, technically, it is present in all actionable crimes.

Specific intent may not be presumed from the mere commission of a wrongful act. Direct evidence of a specific intent, which is a state of mind, is seldom available, for the criminal rarely advertises his intent. Proof of specific intent, therefore, depends largely upon inferences drawn from connected acts preceding the offense; the means ployed to accomplish the crime; the manner in which he accomplished it, including his actions and statements, if any; and, in some instances, his actions subsequent to the accomplishment of the crime.

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The general intent requisite to all crimes may be presumed not only from a wrongful overt act, but also from a failure to act, whether such failure be intentional or negligent. It is difficult for the mind to reconcile the terms "criminal intent" or "guilty mind" with "negligence", for the

first two terms imply an active or positive state of mind, whereas, "negligence" implies a passive or negative state. Nevertheless, general criminal intent may be inferred from negligence. It is elementary in the law that every man intends the necessary and natural or probable consequences of his act, even though the act standing alone may not constitute a crime, and that malice or crim inal intent may be inferred from gross or culpable negligence. A presumption of negligence may result from failure to do an act, the performance of which is imposed by law or demanded by due caution and circumspection; or from the performance of a lawful act in a careless, reckless, or wanton

manner.

The degree of negligence necessary to support or give rise to the requisite crim inal intent varies with different offenses. In the crime of involuntary manslaughter the carelessness must be aggravated and gross, implying indifference to consequences. The same degree of negligence is required in the offense of carelessly endangering the lives of others. In offenses such as neglect of duty and negligence in obeying orders, where the gravamen of the offense is the failure to perform an act that has been legally imposed, the mere failure or neglect of the accused to perform the act is sufficient to justify the inference that it was done with the required intent.

Where insanity exists to such a degree that the accused is unable to distinguish right from wrong or control his actions at the time of the commission of an alleged offense, such insanity is a complete defense thereto and is properly placed in issue under a plea of not guilty. This is true in all classes of offenses, for when under such disability, the accused is unable to entertain any criminal intent, either general or specific. Insanity occurring subsequent to the commission of an offense is not a defense, for the accused was not under the disability at the time of the commission of the offense and, consequently, was capable of entertaining the requisite intent.

As a general rule of law, voluntary drunkenness is not an excuse for crime. Evidence of intoxication in such degree as to render the accused incapable of formulating a specific intent is admissible, how

ever, for the purpose of reducing the gravity of an offense requiring specific intent to a lesser included offense which does not require such specific intent. Where there is no lesser included offense which does not require a specific intent, evidence of drunkenness in such a degree as to nullify specific intent may operate as a complete defense to a crime requiring such intent. Where, however, a specific intent was formed by the accused prior to intoxication and the drinking was done for the purpose of nerving himself for the encounter or act, the specific intent is not nullified by such drunkenness. Involuntary drunkenness such as that produced through trickery or force which renders an accused incapable of distinguishing right from wrong should be considered as having deprived him of the mental capacity to entertain either specific or general intent.

In offenses not requiring a specific intent, evidence of drunkenness is not admissible as a defense. If, however, it is shown that the accused had become permanently insane by reason of excess use of alcohol the insanity produced thereby stands on the same footing as permanent insanity of any other type

Other forms of unconsciousness, such as somnambulism, may be considered as defenses to crime unless such conditions have been voluntarily produced through artificial means or unless they were the result of criminal negligence.

The Civil Readjustment Section, Civil Relations Division of the Executive Office of the Secretary of the Navy, has prepared the pamphlet "State Bonus. Legislation", which contains actual copies of Bonus Laws adopted by eight jurisdictions for the benefit of veterans of World War II. It can undoubtedly be found in the District Legal offices or in District Civil Readjustment Offices. Information therein will be of particular benefit to legal assistance officers, since many men still on duty are eligible to receive the benefits provided by their home States.