Request By:
Mr. George L. Johnson, Director
Division of Weights and Measures
Kentucky Department of Agriculture
Capital Plaza Tower
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of July 11 in which you relate that the Division of Weights and Measures has encountered some difficulty in enforcing the provisions of KRS 248.360 of the Tobacco Warehouse Law. You present the following question:
"I would like to request an opinion as to whether or not we must prove intent in a case where a warehouseman is charged with violating this section. For example, if the defendant claims he was advised by an attorney or other persons that his actions were legal, would this relieve him of prosecution under this act?"
KRS 248.360 prohibits a warehouse or warehouseman from giving rebates, special privileges and services. We find nothing in this statute, directly or indirectly, indicating that proof of intent to violate the statute is necessary for conviction. Referring initially to the Penal Code, particularly KRS 501.070 (1) (b) we find the following:
"A person's ignorance or mistake as to a matter of fact or law does not relieve him of criminal liability unless:
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"(b) The statute under which he is charged or a statute related thereto expressly provides that such ignorance or mistake constitutes a defense or exemption;"
Next referring to KRS 501.050 defining absolute liability, we quote the following:
"A person may be guilty of an offense without having one of the culpable mental states [which includes intent] defined in KRS 501.020 only when:
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"(2) The offense is defined by a statute other than this Penal Code and the statute clearly indicates a legislative purpose to impose absolute liability for the conduct described."
Aside from the criminal code sections referred to above, the courts have consistently held that whether criminal intent is a necessary offense is a matter of construction to be determined from the language of the statute.
United States v. Schultze, 28 F.Supp. 234. In the case of
Goodman v. Commonwealth, 169 Ky. 542, 184 S.W. 876 (1916), it was held that criminal intent may be imputed to a person voluntarily doing an act declared unlawful by statute. Referring next to the case of
Duncan v. Commonwealth, 289 Ky. 231, 158 S.W. 396 (1942), we quote the following:
"It would appear to be scarcely necessary to say that crimes are divided into two classes, i.e., malum prohibitum and malum in se, the offense here being one of the first class. In the text in 14 Am.Jur. 784, Section 24, the 784, Section 24, the distinction between the two classes of offenses is clearly pointed out, and it is stated that criminal intent is not a necessary element of offenses 'which are merely malum prohibitum, or of prohibitive statutes which cover misdemeanors in aid of the police power where no provision is made as to intention. * * * In other words it is immaterial that the defendant acted in good faith or did not know that he was violating the law.'"
Under the circumstances and in view of the language found in KRS 248.360, we are of the opinion that it is not necessary for the department to prove that the warehouse or warehouseman intentionally violated the statute in order to obtain a conviction under the penalty section, namely KRS 248.990 (2).