A Rationale of Mens Rea

Author(s): Rollin M. Perkins

Source: Harvard Law Review , Apr., 1939, Vol. 52, No. 6 (Apr., 1939), pp. 905-928
Published by: The Harvard Law Review Association

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1939] RATIONALE OF MENS REA 905

A RATIONALE OF MENS REA

D EEPLY ingrained in human nature is the tende

tinguish intended results from accidental happ
didn't mean to" is an explanation so frequently accep
is often one of the early acquisitions of small children
jecture might thus lead to the conclusion that the ancie
law held a man answerable only for his intentional mis
of the evidence, however, points the other way. "
earliest days tries to make men answer for all the ills o
kind that their deeds bring upon their fellows."1 T
ment was in the direction of recognizing first one and
other mitigation of this rule. The harsh attitude of
criminal law, and the emergence and gradual developm
mens rea concept have been detailed elsewhere 2 and ne
repeated here.
Some years ago the mens rea doctrine was critici
ground that the Latin phrase is "misleading." If
" mens rea " were to be regarded as self-explanatory th
be open to this objection, but they are to be considered
a convenient label attached to any psychical fact suf
criminal guilt (in connection with socially harmfu
This includes a field too complex for any brief self-
phrase, and since it is important to have some sort
shorthand to express the idea, this time-honored label
well as any.
More recently attacks have been made upon the basic concept
itself. It has been asserted that " A crime is an act. It is not an
act plus an intent. 'In jure actus non facit reum nisi mens sit
rea' is no longer true. The modern maxim should be that most
ancient one: Actus facit reum." 3 But the notion that the mens
rea maxim is no longer true is based upon a misconception of the
1 2 POLLOCK AND MAITLAND, HISTORY OF ENGLISH LAW (2d ed. 1899) 470.
2 See id. at 470-7I, 479-80, 499; Sayre, Mens Rea (1932) 45 HARV. L. REV. 974;
Levitt, The Origin of the Doctrine of Mens Rea (I922) 17 ILL. L. REV. 117.
3 Levitt, Extent and Function of the Doctrine of Mens Rea (1923) 17 ILL. L.
REV. 578, 579; cf. Scanderett, The Obsolescence of Criminal Guilt (I937) 37 J. OF
CR. L. AND CR. 828.

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 906 HARVARD LAW REVIEW [Vol. 52
maxim itself. The present trend is very clearly not
tion of removing the requirement of a mental elem
the constituents of true crime (as distinguished
torts " or " civil offenses " 4).
Unquestionably, much has been said during the
of the mens rea doctrine which is not acceptable
punishment was in the hands of the priests it took t
expiatory rite, and traces of the " expiative theory "
in the language of some of the cases. The old notion
been that punishment was necessary as a " just re
requital for wickedness. But since omniscience is
divine justice, it is necessary to support social j
utilitarian rather than upon a divine basis. Furtherm
rea doctrine was developed before the growth of m
edge of the human mind, and much of the early ta
free will which God has given to man "5 gives no r
the limitations now known to exist.
In this connection, however, it is important to bear in mind that
the results reached in decided cases are frequently better than the
explanations offered in their support. When the strict law called
for punishment without reference to the state of mind of one
whose act had resulted in social harm, administrative techniques
were developed in the effort to protect those who were not really
to blame.6 These techniques, adopted because of a general feeling
that the strict law was not properly fitted to the social need, re-
sulted in a change in the criminal law itself so that the " mind at
fault" became an element of the crime. And this element,
strengthened by the trial and error process of many generations,
is not to be rejected merely because some of the explanations which
have been offered to support it are unsatisfactory. As more is
learned about human conduct in general, there will probably be
revolutionary changes in the treatment of those who have been
convicted of crime. But as far as criminality itself is concerned,

4 See Gausewitz, Criminal Law- Reclassification of Certain Offenses as Civil

instead of Criminal (I937) I2 Wis. L. REV. 365.
5 4 BL. COMM. *27.
6 " On the patent rolls of Henry III pardons for those who have committed
homicide by misadventure, in self-defense, or while of unsound mind are common."
POLLOCK AND MAITLAND, HISTORY OF ENGLISH LAW (2d ed. I899) 480; see HALL,
THEFT, LAW AND SOCIETY (1935) C. 3.

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 1939] RATIONALE OF MENS REA 907

the indications are that any change in re

ment involved will be in the direction of
than less.
A ctus Reus. - When the famous actor Garrick was said to have
declared he felt like a murderer whenever he acted Richard III,
Dr. Johnson, as a moral philosopher, retorted: " Then he ought
to be hanged whenever he acts it." But there is no criminal guilt
without some socially harmful result. " For," explained Black-
stone," as no temporal tribunal can search the heart or fathom the
intentions of the mind, otherwise than as they are demonstrated
by outward actions, it therefore cannot punish for what it cannot
know. For which reasons, in all temporal jurisdictions, an overt
act, or some open evidence of an intended crime, is necessary . . .
before the man is liable to punishment." 7 It might well be added
that the difference between the average law-abiding citizen and
the criminal is not that the former never has a momentary state of
mind which could be labeled mens rea, but that he does not permit
such a state of mind to rule his conduct; and it would not be fea-
sible for the courts of men to inflict punishment for bare mens rea
even if it could be known.
If the phrase " social harm " is used to include every invasion
of any social interest which has been placed under the protection
of a criminal sanction (whether by common law or by statute),
every crime may be said to involve (in addition to other require-
ments) (i) the happening of social harm and (2) the fact that the
act 8 of some person was the cause of this harm. And if all social
harm which has not been placed under the protection of a criminal
sanction is arbitrarily excluded, every remaining instance in which
both of the factors mentioned above are present may be placed
under the general label of "actus reus " 9 "guilty act" or " deed
of crime."
7 4 BL. COMM. *2I.
8 " Act " as used here includes the omission of a possible and legally requi
performance. See p. 912, infra.
9 See, e.g., KENNY, OUTLINES OF CRIMINAL LAW (I3th ed. 1929) 43, 44, 45, 4
66, 80, 267, 394. Obvioufsly it is not classical Latin, but neither is mens rea. Th
phrase " corpus delicti," which might otherwise be preferable in expressing this ide
is excluded because of the wide disagreements as to its meaning. It is frequen
used to mean not merely the physical element of crime, but that this deed was p
petrated by some one with mens rea. See, e.g., Davis v. State, 57 Okla. Cr. 367, 3
48 P.(2d) 339, 340 (I935).

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 908 HARVARD LAW REVIEW [Vol. 52

The phrase " deed of crime " as so used indicat

itself but merely one of the ingredients of crime
ent may be present without any crime at all. It
the crime itself, however, that perhaps the Lati
reus " is less likely to cause confusion. The actus
to crime but is not sufficient for this purpose
sary mens rea, just as mens rea is essential to
moved by statute) but is insufficient without th
reus.

What has been said emphasizes the fact that there ar

ponents in every crime. One of these is objective, the o
jective; one is physical, the other psychical. Althou
more offenses may have the same objective component
case of murder and manslaughter, the actus reus genera
from crime to crime. In murder it is homicide; in bur
the breaking and entering the dwelling house of anoth
nighttime; in uttering a forged instrument it is the act
as good an instrument which is actually false. In like m
mens rea differs from crime to crime. In murder it is " malice
aforethought "; in burglary it is the intent to commit a felony (and
under some statutes an intent to commit any public offense); 10 in
uttering a forged instrument it is " knowledge " that the instru-
ment is false plus an intent to defraud.
The General Mens Rea. -The mental element of crime is
sometimes regarded as though there were one state of mind
mon to crime in general and sufficient for most offenses alth
some additional mental element is needed for certain crimes. This
assumption may be stated as a formula: " State-of-mind-X is com-
mon to all crimes and is sufficient for many, but there are certain
offenses for which some additional mental element is required,
such as state-of-mind-Y or state-of-mind-Z."
Care must be taken to be sure that such a formula does not
include too much. A person may be so young that nothing whic
takes place in his mind will meet the juridical requirement of me
rea; hence it may be said that for state-of-mind-X the person mu
not be too young. Again, for state-of-mind-X the mental facultie
must not be too greatly disturbed by mental disease, and under
certain circumstances they must not have been misled by reason
10 See, e.g., IOWA CODE (I935) ? 12994.

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1939] RATIONALE OF MENS REA 909

able mistake of fact, or have been constrained by

compulsion. Without going further into detail it
point out the need of excluding every mental pat
tains any factor sufficient in law to exculpate one
particular deed in question. If every such facto
there is present an intent to do the deed which
actus reus of a certain offense, the result may be s
mind-X. It is necessary to add, however, that for
will be possible to substitute some other menta
actual intent to do the actus reus.
In brief, while state-of-mind-X has certain factors which remain
constant, these have to do with the general outlines of the mental
pattern rather than with the minute details. Nevertheless, these
general outlines are entitled to attention. In a prosecution for any
particular crime the mens rea will be wanting unless the state of
mind of the defendant at the time of the alleged offense was free
from every factor which would be recognized as sufficient for ex-
culpation in such a case, and included an intent to do the deed
which constitutes the actus reus of that very crime, or some other
mental element (as, for example, criminal negligence) recognized
by law as a substitute in offenses of that nature. This is the so-
called general mens rea which is common to all true crime (unless
removed by statute) and is sufficient for guilt in many offenses
although some additional mental element is required for others.
Criminal Intent. - The phrase " criminal intent " is one that
has been bandied about with various meanings not carefully distin-
guished. At times it has been used in the sense of the " general
mens rea "- as, for example, in the phrase " the mental element
commonly called criminal intent." At times it has been used in the
sense of mens rea as the mental element requisite for guilt of the
very offense charged, " a varying state of mind which is the con-
trary of an innocent state of mind, whatever may be pointed out
by the nature of the crime as an innocent state of mind." 11 Often
it is used to include criminal negligence as well as an actual intent
to do the harmful deed, although at other times such negligence is
referred to as a substitute, so to speak, for criminal intent in con-
nection with certain offenses. Occasionally it is found in the sense
of an intent to violate the law, implying a knowledge of the law
11 I WIGMORE, EVIDENCE (2d ed. I923) ? 300.

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910 HARVARD LAW REVIEW [Vol. 52

violated. On the other hand, as suc

ordinarily required for conviction, it i
lish ignorance of the law does not dis
Only by careful analysis can conf
example, it is said that criminal int
matter of law from criminal negligenc
of crimes in which criminal negligen
rea (such as involuntary manslaugh
intent" will be used although the h
from such negligence rather than f
structive intent " is a fiction which pe
that intention is essential to criminal
nizing that unintended consequences
sufficient for guilt of some offenses
Holmes will state plainly that a man
of a very serious crime because his cr
in " consequences which he neither
add: " To say that he was presumed
merely to adopt another fiction, and t
It has been common to speak of cr
operation of act and intent, or crimin
gests a helpful guide for the use of t
Some other term such as "mens rea
be employed for more general purp
be restricted to those situations in
to do the actus reus and (2) no circum
What Is Intent. - In spite of the loos
word in the phrase " criminal inten
sight of the fact that " intent" in i
meaning as "intention." Hence we
intent means purpose or design. Th
meaning has not been free from di
writes Markby, " is the attitude of m
act adverts to a consequence of the
But the doer of an act may advert to

12 See Commonwealth v. Pierce, 138 Mass. 1

13 See, e.g., Brown v. State, 28 Ark. 126, 12
163 Ill. 56, 69, 45 N. E. 303 (1896).

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 1939] RATIONALE OF MENS REA 911

it: and therefore not intend it." 14 At the

says that a result is intended if it is con
consequence, whether it is desired or not.
element of desire but gives this word a som
tion. He says that a man desires not on
means to the end and hence desires, althou
gret " the necessity for, the means.16
As far as actual intention is concerned,
an expectation that the consequence is li
act. On the other hand it is not necessar
should be " desired " in the usual sense of t
element may become important. If one
causing a certain result, he intends that r
to happen or not. As to consequences not
he intends those, and only those, which h
tially certain to be produced." 17 Stated
Intended consequences include those which
purpose for which an act is done (regard
currence), or (b) are known to be substa
(regardless of desire).18
Presumed Intent. - It is frequently state
ations as to the exact wording, that " ever
tend the natural and probable consequence
" presumed " is the key to such a phrase
a rule of evidence which calls for a certain result as far as the
particular case is concerned unless the party adversely affect
by the presumption comes forward with evidence to overcome i
This is sometimes referred to as a " prima facie presumption " t
distinguish it from the so-called " conclusive presumption " whi
is a legal device in the form of a postulate used for the determin
tion of a particular case whether it corresponds with the act
facts or not. A third use is the so-called " presumption of fact

14 MARKBY, ELEMENTS OF LAW (4th ed. 1889) ? 220.

15 I AUSTIN, JURISPRUDENCE (5th ed. 1885) 424.
16 SALMOND, JURISPRUDENCE (8th ed. 1930) 395.
17 RESTATEMENT, TORTS (1934) ? 13, comment d.
18 One writer uses " full intent " to designate intention, and " imperfect intent
to refer to certain states of mind sufficient for mens rea but not involving an actu
intent to cause the actus reus. Robinson, Manslaughter by Motorists (I938) 2
MINN. L. REV. 755.

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912 HARVARD LAW REVIEW [Vol. 52

meaning " mere inferences of fact not affectin

a duty to produce evidence." Presumed inten
all three of these senses.'9 But in spite of so
the contrary, it seems fairly well established t
to intend" formula is not a true presumptio
otherwise than in the sense of " conclusive pre
merely an inference of fact.20 This, however,
law of evidence and has no direct bearing up
law of mens rea.
" Voluntary Act." -It is sometimes said that no crime has
been committed unless the harmful result was brought about by a
"voluntary act." Analysis of such a statement will disclose, how-
ever, that as so used the phrase " voluntary act" means no more
than the mere word "act." 21 An act must be a willed movement
or the omission of a possible and legally required performance.
This is essential to the actus reus rather than to the mens rea.
"A spasm is not an act." 22
The use of this phrase as one of the requisites of crime owes its
origin to early uncertainty as to the precise meaning of the word
" act." A positive act (willed movement) always has a voluntary
element and hence the phrase " voluntary act " is merely tauto-
logical as so applied. A negative act may be either a forbearance
or an unintentional omission of a legally required performance
The former is voluntary, the latter is not. If a watchman charged
with the duty of lowering the gates at a crossing whenever a train
is approaching fails to do so on a particular occasion, with fata
consequences to a motorist, the death is due to his (negative) act.
But it would be absurd to speak of this act as " voluntary " if he
was inattentive and did not see the train approaching. As his
legal duty required him to be attentive in this regard his want of
knowledge of the need for immediate action will not excuse him,
but it leaves his failure wholly unintentional. Hence the assertion

19 (I) See State v. Selby, 73 Ore. 378, 390, 144 Pac. 657, 660 (I914). (2) See
Bleiweiss v. State, I88 Ind. 184, I89, 119 N. E. 375, I22 N. E. 577 (I9g8). (3) See
State v. Blacklock, 23 N. M. 25I, 254, i67 Pac. 714, 715 (I9g8).
20 5 WIGMORE, EVIDENCE (2d ed. I923) ? 25IIa.
21 Stephen, for example, says: " Instances of involuntary actions are to be found
not only in such motions as the beating of the heart and the heaving of the ches
... coughing ... the struggles of a person in a fit of epilepsy ...." 2 STEPHEN
HISTORY OF THE CRIMINAL LAW OF ENGLAND (1883) 99-I00.
22 HOLMES, THE COMMON LAW (i88i) 54.

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1939] RATIONALE OF MENS REA 913

that there is no crime without a " voluntary act"

to positive action and incorrect as to negative a
Furthermore, such an assertion invites confusio
tions - first because the modifier may be improp
the legally recognized consequences of the act, an
it may raise a false issue as to the meaning of the
tary." As to the first, assume the unintentiona
charge of a firearm which had been unlawfull
deceased with no thought other than to intimidate
tional pointing of the weapon was an act and the
is attributable to the pointer. It is not improper to
guilty of criminal homicide in certain cases of th
speak of the "shooting " or the "killing " as volun
tional is merely confusion of words. Without elab
ond point it may be mentioned that the notion of a
as requisite to criminal guilt may result in the jur
by argument of counsel to the effect that defenda
mitted under the stress and strain of difficult circ
hence was not " voluntary." If the harm was ca
movement of the defendant it was caused by his
how much " pressure " he may have been under
If this pressure was sufficient to negative the elem
the law will excuse him.
Criminal Negligence. - Statements can be found to the effect
that " negligence is a state of mind " or on the other hand that it is
" not a state of mind." The difference is largely in the use of terms.
Thus if negligence is said to be a state of mind it is conceded that
to have juridical consequences it must be " manifested." 23 If it is
said not to be a state of mind, this is to emphasize that " the state
of mind, which is the cause, must be distinguished from the actual
negligence, which is its effect." The tendency is to use the word
"negligence " as a synonym for " negligent conduct." 24 This
implies something done (or not done under circumstances involv-
ing a breach of duty to perform) with some sort of blameworthy
state of mind.25

23 BIGELOW, TORTS (8th ed. I907) I9.

24 Terry, Negligence (I915) 29 HARV. L. REV. 40, 41; see RESTATEMENT, TORTS
(I934) ? 282.
25 If any evidence is necessary to establish the fact that negligence involves some
sort of blameworthy state of mind, no more is needed than the contrast between

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9I4 HARVARD LAW REVIEW [Vol. 52

Intentional harm falls into quite a different c

act may be done with such a wanton and wilful
cially harmful consequence known to be likely
attitude of mind will be more socially blamewo
ported by the word " negligence." 26 Hence
directed to risks of such harm created by a state
from either of these. Since some element of risk is involved in
many kinds of useful conduct, socially acceptable conduct cannot
be limited to acts which involve no risk at all. To distinguish risks
not socially acceptable from those regarded as fairly incident to
our civilization, the former are spoken of as "unreasonable."
Even an unreasonable risk, however, may have been created with-
out social fault, if the one who created the risk did not know or
have reason to know of the existence of such risk under the circum-
stances. Hence a distinction is made between risks that are " real-
izable " and those that are not. Conduct, therefore, may be said
to fall below the line of social acceptability if it involves a realizable
and unreasonable risk of social harm. With this preface the fol-
lowing definition may be offered: Negligence is any conduct, ex-
cept conduct intentionally or wantonly and wilfully disregardful
of an interest of others, which falls below the standard established
by law for the protection of others against unreasonable risk of
harm.
The social purpose underlying the requirement of compensation
to the person harmed is not identical with that which forms the
basis of punishment. Conceivably, therefore, the standard adopted
in the criminal law of negligence might be entirely different from
that used in civil cases. This is not exactly the answer since the
" measuring stick " here, as well as there, is the conduct of a rea-
sonable man under like circumstances. But whereas the civil law
requires conformity to this standard, a very substantial deviation

negligence and intended harm on the one hand, and between negligence and liability
without fault on the other. See RESTATEMENT, TORTS (1934) ? 282, comments c
and d.
26 . .. negligence is any conduct, except conduct recklessly disregardful of an
interest of others .. . ." Id. at ? 282. The word " recklessly " used at this point
in the Restatement is not employed here in the text, because in the criminal cases
it is frequently adopted to signify criminal negligence rather than malice. See, e.g.,
State v. Thomlinson, 209 Iowa 555, 228 N. W. 8o (1929); State v. Cope, 204 N. C.
28, I67 S. E. 456 (I933).

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 1939] RATIONALE OF MENS REA 915

is essential to criminal guilt. It is " uniform

Florida court, that the kind of negligence require
nal guilt " must be of a higher degree than that
lish simple negligence upon a mere civil issue." 27
may occasionally be required by statute. Thus
gan enactment one whose operation of a motor v
death, although not guilty of involuntary mansla
conduct did not amount to criminal negligence,
of " negligent homicide " if his driving was such
ordinary negligence.28 For the most part, ho
offenses for which the mens rea requirement can
the basis of negligence, there has been no chang
that a greater degree of social fault is required fo
is demanded in a civil case. While the words " criminal," " cul-
pable " and " gross " (as modifiers of the word " negligence ") have
been used interchangeably to express this requirement, the phrase
"criminal negligence " seems most appropriate.2
Malice. - The mental element known to the law under the name
of " malice " has been subjected to the most thorough examination
in the homicide cases.30 In this branch of the law it is well estab-
lished that while malice may arise from "personal ill-will or
grudge " or " hatred " or " spite," it may also be present without
anything of this nature. In malicious mischief, however, numerous
statements can be found to the effect that the malice necessary for
conviction requires some actual ill-will, spite or grudge against
the owner or possessor of the property, or at times, if an animal
is involved, that the injury must be actuated by " either ill-will to
the owner or cruelty to the animal." 31
27 See Cannon v. State, 9I Fla. 214, 222, IO7 So. 360, 363 (I926).
28 MICH. COMP. LAWS (1929) ? 16743; People v. Orr, 243 Mich. 300, 220 N. W.
777 (I928); People v. McMurchy, 249 Mich. I47, 228 N. W. 723 (1930). Accord:
People v. Warner, 27 Cal. App.(2d) I90, 80 P.(2d) 737 (I938).
29 The phrase " culpable negligence" seems to have been used most frequently
in the statutes. See, e.g., FLA. COMP. GEN. LAWS ANN. (Skillman, 1927) ? 7141;
KAN. GEN. STAT. ANN. (1923) ?? 21-407, 21-414; N. Y. PENAL LAW ? 1052; WIS.
STAT. (I933) ??340-IO, 340-19; cf. WYO. REV. STAT. ANN. (Courtright, I931)
? 32-205 (" culpable neglect or criminal carelessness "); CONN. GEN. STAT. (Supp.
I935) ? i686c (" gross negligence ").
30 Judicial interpretation has attached to the phrase " malice aforethought" in
the homicide cases some shades of meaning not found where malice is an element
in other kinds of offenses. See Perkins, A Re-Examination of Malice Aforethought
(1934) 43 YALE L. J. 537. 31 Wright v. State, 30 Ga. 325, 327 (I86o).

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 916 HARVARD LAW REVIEW [Vol. 52

A careful examination of these cases will usually

no such statement was needed to reach the conclu
was not established. In some it will be found that the harm itself
was insufficient for an offense of this serious nature.32 In some
the harm was serious enough but was neither intended nor contem-
plated as a probable consequence, although it resulted from an
unlawful act.33 In others, serious harm may have resulted unin-
tentionally from conduct which involved no greater degree of so-
cial blameworthiness than that imported by the phrase " criminal
negligence." 4 And in many other of these cases serious harm
was caused intentionally, but under circumstances which, if they
did not excuse, at least presented sufficient elements of mitigation
to negative any idea of malice, as this term is used in the law.35
Where the issue has been squarely presented the courts have
tended to reject the notion that any element of ill-will, grudge or
spite is required for conviction of malicious mischief.36
The malice in such cases is sometimes spoken of as " inferred"
or " presumed." What is really meant is that the mental element
required for conviction and known to the law as " malice " re-
quires no more than the intentional doing of the particular harm
without circumstances of justification, excuse or substantial miti-
gation. It is rather generally recognized that this is sufficient for
malice in the commission of other crimes, such as blackmail, false
imprisonment, libel, malicious prosecution, mayhem or murder.
An important qualification must be added to avoid overempha-
sis of the element of actual intent. It has been suggested that
" malice implies intention," but this is not a helpful mode of ex-
pression since a certain type of " constructive intent " may result
in " constructive malice." 37 To emphasize that malice requires

32 Cf. Commonwealth v. Williams, iio Mass. 401 (I872).

33 Cf. Mayn v. People, 56 Colo. I70, 136 Pac. Ioi6 (I913).
84 Cf. State v. Robinson, 20 N. C. io8 (I838).
35 Cf. Wright v. State, 30 Ga. 325 (i860); State v. Churchill, I5 Idaho 645, 98
Pac. 853 (I909); Duncan v. State, 49 Miss. 331 (I873); Fears v. State, 33 Ariz. 432,
265 Pac. 600 (I928).
36 Smith v. District, I2 App. D. C. 33 (I897); State v. Boies, 68 Kan. 167, 74
Pac. 630 (1903); Brown v. State, 26 Ohio St. I76 (I875); Regina v. Welch,
i Q. B. D. 23 (I875).
37 Regina v. Pembliton, 12 Cox Cr. C. 607, 6ii (I874); Pool v. State, 87 Ga.
526, 13 S. E. 556 (I89I).

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 1939] RATIONALE OF MENS REA 917

a greater degree of social fault than is involv

" criminal negligence " and yet does not require a
to cause the resulting harm, the courts have resort
of expression as " absolute recklessness," "a reckle
whether " the harm was caused or not, a dangero
recklessly or wantonly as to evince depravity of
regard " of consequences, or done with " knowled
cumstances that according to common experience
and strong likelihood that" a certain type of
ensue.

In brief, malice in the legal sense imports (i) t

all elements of justification, excuse or substantial m
(2) the presence of either (a) an actual intent to
ticular social harm which is caused or harm of th
nature, or (b) the wanton and wilful doing of an ac
edge of circumstances indicating awareness of a pla
likelihood that such harm may result.
Knowledge.- The relation of knowledge to gui
variable factor. At one extreme is found the type o
which knowledge of some particular matter is requ
by the very definition of the crime itself - as, for
ing a forged instrument with knowledge of the forg
stolen property knowing it to have been stolen;
designedly obtaining the property of another by f
with intent to defraud; receipt of deposit by a b
that his bank is insolvent; or transportation of a
terstate commerce knowing it to have been stolen.
extreme is found the type (which should be restric
called public torts or civil offenses 38) in connectio
the element of knowledge or lack of knowledge
Such " offenses " are within the category which do
the requirement of mens rea, and hence are who
present study. Between these two extremes are f
for guilt of which the matter of knowledge cannot
though the definitions themselves contain no specif
thereof. This is because knowledge or lack of k
be among the determining factors of some other re

38 Sayre, Public Welfare Offenses (I933) 33 COL. L. REV. 5

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 9I8 HARVARD LAW REVIEW [Vol. 52

of mind, such as intent, wilfulness, malic

gence.39
From the standpoint of the prosecution (leaving out of con-
sideration those " offenses " which have no mens rea requirement)
knowledge may be a positive factor, or the want of knowledge may
be a negative factor. In some prosecutions the state must prove
the defendant's knowledge of some particular matter to make out
even a prima facie case of guilt; in others the want of knowledge
may be " peculiarly a matter of defence." 40 The present discus-
sion is limited, for the most part, to knowledge as a positive factor.
"Absolute knowledge can be had of very few things," '4 said
the Massachusetts court, and the philosopher might add " if any."
For most practical purposes "knowledge" "is not confined to
what we have personally observed or to what we have evolved
by our own cognitive faculties." 42 Even within the domain of
the law itself the word is not always employed in exactly the same
sense. The need, therefore, is to search for the state of mind,
or states of mind, which the courts have spoken of as "knowl-
edge" for any particular crime. One who has sold a chattel
with an untrue representation which has induced the buyer to
pay money for a thing he would not have purchased had he known
the real facts may or may not have been aware of the incorrect-
ness of his statement. In fact, his attitude of mind may vary
through a wide range; and while the positions shade one into an-
other the following seem entitled to special attention. (i) He
may have been aware of the falsity of his statement because of
his own personal observation. If he was not so aware because
of such observation, (2) he may have believed the statement to

39 Want of knowledge of a most important fact may be insufficient to negative

criminal negligence in a particular case. Thus one who intentionally points a gun
at another (without justification or excuse) and pulls the trigger, will be guilty of
manslaughter if death results, even if he intended no harm and did not know the
weapon was loaded. Rampton's Case, Kelyng 41, 84 Eng. Rep. 1073 (1664); State
v. Hardie, 47 Iowa 647 (1878). But a fatal discharge resulting from the handling
of a weapon not intentionally pointed at another will not necessarily amount to
manslaughter. Fitzgerald v. State, 112 Ala. 34, 20 So. 966 (1895). In such a case,
knowledge or lack of knowledge that the gun was loaded might well be one of the
factors to be considered on the question of criminal negligence.
40 Mergentheim v. State, I07 Ind. 567, 573, 8 N. E. 568, 571 (i886).
41 Story v. Buffum, 8 Allen 35, 38 (Mass. 1864).
42 State v. Ransberger, io6 Mo. 135, 140, 17 S. W. 290, 292 (189I).

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1939] RATIONALE OF MENS REA 919
be false; (3) he may have fully realized that h
slightest notion whether it was true or false; (4)
believed the statement to be true but have had no reasonable
grounds for this belief; or (5) he may have believed the statement
to be true and have had reasonable grounds for this belief. Apart
from the peculiar use of " knowledge " in this branch of the law,
these would probably be labeled: (i) guilty knowledge, (2)
guilty belief, (3) guilty avoidance of knowledge, (4) bona fide
belief resulting from negligence, and (5) bona fide belief free
from any taint of negligence.
The extremes here require little comment. Only in the most
theoretical discussions would it even be questioned that one has
knowledge of facts of which he has been made aware by his own
observations. Nor would it be suggested that one has knowledge
of facts when he has a bona fide belief to the contrary, based upon
reasonable grounds. Such a person will be treated as if the facts
were as they reasonably appeared to him to be unless the particular
" offense " does not require mens rea for conviction, or the deed,
even under the circumstances as they were reasonably supposed
to be, would have involved such a degree of social fault that the
doer may properly be held to have acted at his peril in this regard.43
In theory, class (2), " guilty belief," might be further divided
according to the data upon which this belief is based. This seems
to be unnecessary in view of the great distinction between a belief
which corresponds with the facts. and one which does not. The
former is " knowledge " as the word is used in regard to mens rea.
Usually it will be necessary for the prosecution to show very con-
vincing reasons for the guilty belief in order to satisfy the jury
that such belief existed in the defendant's mind. But if the de-
fendant should admit that he actually had such a belief he would
not be entitled to a directed verdict of acquittal merely because
the state was unable to show exactly the grounds upon which
the belief was based. It is necessary to distinguish a mere fugi-
tive doubt based upon no grounds at all, which is not a " belief."
The law-abiding citizen is not to be barred from the normal chan-
nels of commerce, for example, merely because he understands
43 One, for example, who has unlawful intercourse with a girl under the age of
consent is guilty of statutory rape although he believed she was over that age. E.g.,
State v. Sherman, Io6 Iowa 684, 77 N. W. 46I (I898).

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920 HARVARD LAW REVIEW [Vol. 52

that stolen goods sometimes find their way into

Any practical problem that might be raised in
be considered under class (3) which has been
avoidance of knowledge," for want of a better
take either of two forms. One with a delibera
pose in mind may make a positive statement
based upon his own knowledge, being fully awar
such knowledge, in order to forestall an inqu
by another, or to mislead an inquiry in a procee
trial of a case. Or one, with a similar purpose,
" shut his eyes " to avoid knowing what would o
vious to view. In such cases, as far as criminal
the person acts at his peril in this regard, and is
" knowledge " of the facts as they are ultimately
Indeed, one may be convicted of perjury for
sworn to facts he purported to know, being at th
that he had no such knowledge, even if what
to be in accord with the actual fact.45
Awareness of fault is the characteristic which distinguishes
class (3) from class (4). In the latter, - bona fide belief con-
trary to fact, not based upon reasonable grounds - there is no
fault in the belief itself, but only in the mental processes which
have induced the belief. Conviction of some offenses is possible
although the fault does not exceed the boundaries of this category.
But where a belief contrary to fact is entertained in good faith,
no amount of negligence in its acquisition will meet the require-
ment, if " knowledge " of this matter is essential to guilt.46 Oc-
casional indications to the contrary seem to result either from a
failure to distinguish between criminal negligence and "guilty
avoidance of knowledge," 7 between a showing which will be

44 Cf. People v. Cummings, 123 Cal. 269, 55 Pac. 898 (1899); Rand v. Com-
monwealth, I76 Ky. 343, I95 S. W. 802 (I917).
45 Commonwealth v. Miles, 140 Ky. 577, 131 S. W. 385 (I9Io); cf. State v.
Gates, 17 N. H. 373 (I845).
46 E.g., Commonwealth v. Brady, 5 Gray 78 (Mass. 1855); Commonwealth v.
Wilson, 266 Pa. 236, 109 Atl. 913 (1920); State v. Pickus, 63 S. D. 209, 257 N. W.
284 (I934).
47 Cf. McClure v. People, 27 Colo. 358, 6i Pac. 612 (1900). But cf. People v.
Cummings, 123 Cal. 269, 271, 55 Pac. 898 (1899). A clear distinction between the
two is found in State v. Pickus, 63 S. D. 209, 229-30, 257 N. W. 284, 294 (I934).

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1939] RATIONALE OF MENS REA 921

sufficient to support a jury's finding that

edge " and one which may be held as a ma
"knowledge,"48 or between decisions un
" when he knows or has good reason to be
require knowledge.49
Motive. -" Although sometimes confus
are not synonymous terms." 50 The differ
motive may be emphasized by illustration
the death of another by a pistol shot, his i
one of an almost infinite number, such as
frighten the deceased by shooting near hi
or to intimidate the deceased by pointing t
out shooting. If in the particular case th
deceased, the motive of the shooter ma
more of a number of possible motives, suc
jealousy, avarice, fear, or even love.
Some writers have advanced the notion th
mitted with more than one object in view,
intent is called " intent" and any " ulter
motive of the act." 51 Stroud, for exam
burglar breaks and enters the dwelling of a
with intent to steal, his mental attitude in
plated larceny is not (at the time of break
intent but a motive.52 This, however, i
juridical usage of these terms. The burgl
far from being no intent at all that it is c
The search for the distinction must go mu
in the supposed case the burglar's purpose

48 "Guilty knowledge means not only actual k

knowledge, through notice of facts and circumstanc
edge may fairly be inferred." People v. Tantenella,
474, 476 (1920). But the holding was merely that t
support the jury's verdict of guilty.
49 Cf. McClure v. People, 27 Colo. 358, 61 Pac.
"criminal negligence" in not knowing is "knowled
case, the court relies upon cases which were decided
the conviction of one knowing " or having good reas
50 People v. Kuhn, 232 Mich. 3Io, 312, 205 N. W.
51 Hitchler, Motive as an Essential Element of Cr
IO5, io8.
52 STROUD, MENS REA (1914) 114.

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 922 HARVARD LAW REVIEW [Vol. 52

he wished to eat, his intent to eat would also be a

one more step removed from his immediate inte
the breaking. But his urge to satisfy his appetit
intent, but a motive.
An emotional urge, unless counteracted by oth
the mind to desire " a particular result. This desi
may not prompt an intent to bring about that e
activity continues until such an intent is develop
might occur with lightning speed) the desire is
intention and may in a sense be a part thereof.
important to distinguish between the basic urge itsel
which resulted in the mind of the particular per
might not have been generated in the mind o
for example, it is said that a legatee, who was
bequest in his favor, had a motive for killing his
it is not meant that this fact is sufficient to establish an intent to
kill. No more is meant than that this fact was sufficient to generate
a primitive urge in that direction, although it might be completely
checked by more social impulses.
Frequently, it is said that motive is not an essential element of
crime. But factual situations may arise in which motive may have
a determining influence upon the issue of guilt or innocence. Hence
the statement should appear in some modified form such as:
"Proof of motive is never necessary to support a conclusion of
guilt otherwise sufficiently established."
The motive with which an actus reus was committed is always
relevant and material. The presence or absence of a motive on
the part of the defendant which might lead to the commission of
such a deed may always be considered by the jury on the question
of whether he did commit it. But whenever it is clearly established
that he committed it, with whatever state of mind is required for
the mens rea of the particular offense, all the requisites of criminal
guilt are present, even if no possible motive for the deed can be
shown. In fact, in such a case, even proof of a good motive will
not save the defendant from conviction.53

53 People v. Corrigan, 195 N. Y. i, 87 N. E. 792 (1909); People v. Roberts, 211

Mich. 187, 178 N. W. 690 (1920); Commonwealth v. Pear, 183 Mass. 242, 66 N. E.
719 (1903); Knowles v. United States, 170 Fed. 409 (C. C. A. 8th, 1909); Reynolds
v. United States, 98 U. S. I45 (1878); Davis v. Beason, I33 U. S. 333 (1890).

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1939] RATIONALE OF MENS REA 923

All this, however, is on the assumption that th

as the actus reus has been clearly established in
The vital problem is whether proof of motive m
minant of guilt or innocence even in an unus
certain offenses for which guilt requires a spec
expressed by the word " corruptly." In some of
be found statements indicating the necessity
motive " for a corrupt state of mind. The word
ever, seems to have been improperly used in th
jury, for example, requires wilful and corrupt f
the witness who testifies under oath to what he knows is not true
is guilty of this offense regardless of his motive.
Criminal libel presents quite a different problem. It is not
necessary for the prosecution to establish a bad motive to make out
a prima facie case of guilt of this offense; but if the defendant seeks
to justify his publication, the motive which prompted it may be-
come an important issue in the case. At common law the truth of
the statement published was no defense; in fact the early view
was that " the greater the truth the worse the libel." 54 But by a
very common provision in this country justification is established
if " the matter charged as libelous was true, and was published with
good motives and for justifiable ends." 55 Furthermore, even when
a communication is privileged (unless the privilege is absolute) the
protection is lost if a libelous statement is published with an im-
proper motive.
Motive may also be a determinant of guilt or innocence in an
unusual case of homicide. Suppose a grave felony is about to
be committed under such circumstances that killing the offender
to prevent the crime would be justified by law. At that very
moment he is shot and killed. If the slayer was prompted by the
impulse to promote the social security by preventing the felony
he is guilty of no offense. If he had no such impulse but merely
acted upon the urge to satisfy an old grudge by killing a personal
enemy, he is guilty of murder.56 The intent is the same in either
case, -to kill the person. The difference between innocence
and guilt lies in the motive which prompted this intent.

54 See Thomas v. State, 34 Okla. Cr. 63, 67, 244 Pac. 1116, III7 (1926).
55 IOWA CONST. art. I, ? 7; IOWA CODE (1935) ? I3259. Most of the states have
similar provisions. 56 Laws v. State, 26 Tex. Cr. 643 (i888).

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924 HARVARD LAW REVIEW [Vol. 52
Specific Intent. - The loose use of the word
phrase " criminal intent" has caused the courts
in the effort to convey the idea of intent in its s
tention. At times the phrase "specific intent
ployed for this purpose. More frequently, how
"specific intent " is used to connote somethin
intentional doing of the actus reus itself - an int
cifically required for guilt in a particular offe
with intent to murder, burglary, using the mail
defraud, or criminal attempt.
Dobbs' Case 57 is one of the most illuminating on
specific intent although this phrase was not used
and entered in the nighttime the stable of anoth
dwelling-house," with intent to cut the sinews
foreleg to prevent his running in a particular ra
guilty of burglary although the horse died. Be
of the horse was the result of an unlawful act done with wanton
and wilful disregard of an obvious risk to the horse's life, Dobbs
was guilty of the felony of maliciously killing the horse. But
since he did not intend to kill the horse he was not guilty of bur-
glary which required a specific intent to commit a felony.
The crime of assault with intent to murder has been a useful
testing ground for this mental element. Murder may be com-
mitted without an actual intent to take life. " But to constitute
the offense of an assault with intent to murder there must be a
specific intent to kill." Hence it is error to instruct the jury that
the same facts and circumstances which would have made the
offense murder if death had ensued, will furnish sufficient eviden
of intention to convict of assault with intent to murder.58 An
intent " to maim, rob, rape or other than to kill " will not meet
the requirement. Even an assault with an actual intent to kil
will be insufficient if the circumstances are such that resulting
death would have been manslaughter rather than murder.59

57 2 EAST P. C. 513 (I770).

58 E.g., Moore v. State, i8 Ala. 532 (1851); Bonfanti v. State, 2 Minn. 123
(1858). It is possible to find occasional authority the other way. E.g., Chambli
v. State, 37 Ga. App. 124, 139 S. E. 80 (1927).
59 Ogletree v. State, 28 Ala. 693 (i856); Hankins v. State, Io3 Ark. 28, I45
S. W. 524 (1912); State v. Schaefer, 35 Mont. 217, 88 Pac. 792 (I907); State v.
Butman, 42 N. H. 490 (I86I). For the necessity of specific intent in other type

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1939] RATIONALE OF MENS REA 925

Where a specific intent is an essential ingredien

charged, it is imperative to make a careful analys
sumed to intend " formula.60 " The doctrine of a
differing from an intent in fact, is not applicable
The intent with which a harmful act is done i
pressed in words, and the jury is permitted to dr
ences of intent as are warranted under all of the circumstances of
the particular case. But there is no presumption of law, either
conclusive or rebuttable, that an act was done with any specific
intent, unless some statute provides for such presumption in the
trial of a particular offense.
Special Mental Element. - The logical starting point in the
search for the mental element required for conviction of any par-
ticular crime is the intent to do the deed which constitutes the
actus reus of that offense. But for various offenses, assuming the
absence of any special circumstance of exculpation such as extreme
youth or insanity, the mens rea may consist of (a) this intent,
(b) something distinctly less than this intent, (c) something dis-
tinctly more than this intent, or (d) something different from this
intent which cannot be designated as distinctly either more or less
than the intent itself. Mens rea which is distinctly less than an
intent to commit the actus reus is best exemplified by those offenses
which may result from criminal negligence, such as involuntary
manslaughter. Larceny is a typical example of a crime in which
the mens rea is something distinctly more than an intent to do the
actus reus. An intentional trespassory taking and carrying away
of the chattel of another is not larceny if it is only a temporary
(though wrongful) "borrowing." There must be an intent not
only to take and carry away but also to steal - to deprive the
owner of his property permanently.
Mens rea which is other than an intent to commit the actus reus
and yet something which cannot be designated as distinctly either
more or less than this intent itself, finds an excellent illustration

of aggravated assaults, cf. State v. Meadows, 18 W. Va. 658 (1881) (intent to

maim); People v. Smith, 217 Mich. 669, 674, I87 N. W. 304 (1922) (intent to do
great bodily harm); Jones v. State, go Ala. 628, 8 So. 383 (1890); Barr v. People,
113 Ill. 471 (1885). But cf. State v. Carnagy, Io6 Iowa 483, 76 N. W. 805 (1898)
(intent to commit rape).
60 See p. 911, supra.
61 See Chrisman v. State, 54 Ark. 283, 285, 15 S. W. 889 (1891).

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926 HARVARD LAW REVIEW [Vol. 52
in the crime of murder. The actus reus of murder is homicide.
But the mental element of this offense (malice aforethought) is
such that in one case an intentional killing may not be murder,
whereas in another case an unintentional homicide may constitute
this crime. For example, a killing (though without legal justifica-
tion or excuse) may be intentionally caused in the sudden heat of
passion engendered by such provocation that the offense will not
be murder but voluntary manslaughter; on the other hand the
robber who kills the person he is attempting to rob is guilty of mur-
der even if the killing was quite accidental.
Any mental requirement for guilt of a particular offense in addi-
tion to an intent to commit the deed which constitutes the actus reus
of that crime, or different from but not distinctly less than such
an intent, may be spoken of as a " special mental element." The
term "specific intent" has sometimes been employed for this
purpose, but such usage is inaccurate and confusing. Any specifi-
cally required actual intent, other than to do the deed which con-
stitutes the actus reus of the particular crime, is unquestionably
a special mental element; but not every special mental element is a
specific intent in the true sense of the word " intent." Malice
aforethought, for example, is a special mental element required
for the crime of murder; criminal homicide without this element
is only manslaughter. But since an unintentional killing may be
with malice aforethought, and an intentional killing (even in the
absence of justification or excuse) may be without malice afore-
thought, it is obviously misleading to speak of this element as an
" intent." An additional reason for not using the term " specific
intent " to refer to a special mental element which is not an intent
is that the latter is not governed by exactly the same rules as are
applied to specific intent. For example, there is no true presump-
tion (as distinguished from inference of fact) of a specific intent,
unless expressly provided by statute for some particular offense;
but this is not true of every special mental element.62

62 Thus every homicide is presumed to have been committed with malice afore-
thought " unless the evidence which proves the killing itself shows it to have been
done without malice." See Murphy v. State, 37 Ala. I42, 144 (i861); cf. 4 BL.
COMM. *20I; Stepp v. State, 170 Ark. Io6I, io67, 282 S. W. 684, 687 (1926); State
v. Bailey, 205 N. C. 255, 171 S. E. 8I (I933); State v. Cassim, II2 W. Va. 92, 163
S. E. 769 (1932).

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1939] RATIONALE OF MENS REA 927

Typical examples of crimes involving a speci

are: (i) all offenses which require a specific
ceny, burglary, assault with intent to murder,
intent to defraud, criminal attempt); (2) any o
requirement for guilt is that the actus reus b
(such as forgery, obtaining property by fal
maliciously (such as murder, arson, malicio
corruptly (such as perjury, common law extor
(where from the whole context this means so
voluntarily, such as wilful trespass, wilful usu
or (6) knowingly (such as uttering a forge
knowledge of the forgery, receiving stolen pro
have been stolen, illegal voting by one " knowi
a legal voter ").
" Transferred Intent." -It was stated by L
A. by malice aforethought strikes at B. and m
whereof he dies, tho he never bore any malice
der, and the law transfers the malice to the
questionably the slayer is guilty of murder in
any resort is to be made to the notion of t
should be limited to this type of situation.
pattern is the same whether the malicious end
or to kill C. Without the word "malicious " th
not be true. An intent to kill B might represe
very different from that of an intent to k
might at the time have been making a murde
under circumstances that would give A the pr
self-defense. If at the same time C were obvio
ing any harm to A, an intent by A to kill C wo
aforethought. But if, under those circumstan
at B in the proper and prudent exercise of his
defense, and should unexpectedly cause the
be free from criminal guilt. This seems to
theory of " transferred intent." The intent t
stitute mens rea and this innocent intent seems to be transferred
to the unintended victim and makes the killing of C innocent
homicide. If, on the other hand, A exercised his privilege of self-

63 I HALE P. C. 466.

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928 HARVARD LAW REVIEW [Vol. 52
defense so imprudently as to constitute a criminally
regard of the life of the innocent bystander, C, th
would be manslaughter.
In general it may be said that if one intends injur
son of another under circumstances in which such a
tern constitutes mens rea, and in the effort to accom
he inflicts the kind of harm intended upon a person
the one intended, he is guilty of the same kind of c
aim had been more accurate. The same is true of offenses which
do not involve injury to the person. Thus if A starts a fire for the
malicious purpose of burning the house of B, and it destroys the
house of C instead, A is guilty of arson. While the " transferred
intent" theory does not reach erroneous conclusions if sharply
limited to cases of this type, it is unnecessary even here. The true
explanation is this: In every such case both of the components of
the crime are present. The psychical element consists of a cer-
tain general mental pattern which is not varied by the particular
person or piece of property at which it is directed (unless there is a
privilege which applies to one and not the other). But where the
state of mind which prompted the action does not constitute the
particular mens rea required, the courts have repudiated the no-
tion that the intent to commit another crime should be " trans-
ferred." 4 This is entirely proper; mere fiction should be dis-
carded in favor of a careful analysis of the psychical element
which may be combined with the actus reus in order to constitute
the offense charged.
Rollin M. Perkins.
IOWA LAW SCHOOL.

64 Regina v. Faulkner, 13 Cox Cr. C. 550 (Ireland 1877); Baker v. State, 53

Tex. Cr. 14, io8 S. W. 665 (I908); Johnson v. State, 26 Tex. 117 (i86I); Regina v.
Pembliton, 12 Cox Cr. C. 607 (1874); cf. Rex. v. Kelly, I Craw. & D. i86 (Ireland
1832).

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