Also known as: malum in se · mala in se crimes · inherently wrongful acts
Written by attorneys — see sources below.
A category of crimes or acts that are inherently immoral or wrong in themselves. Courts distinguish these from regulatory offenses that carry no inherent moral wrong.
Monica Morgan, captain of a small charter vessel, knowingly carried ten passengers when harbor rules limited the boat to six. In choppy seas the overloaded craft capsized and a passenger drowned. Because the capacity violation was treated as malum in se, the resulting death supported involuntary manslaughter under the misdemeanor-manslaughter rule without separate proof of foreseeability.
Miranda Morales, a hospital administrator, parked in a clearly marked ambulance-only zone to save time. An arriving ambulance carrying a heart-attack patient had to wait, and the patient died. Because the parking ordinance was merely malum prohibitum, the majority rule required proof that death was a foreseeable consequence of the violation before manslaughter liability attached.
Mustafa Mahmoud, a long-time resident, never registered as required by a local ordinance after a prior conviction. Prosecutors charged him with the regulatory offense. The court treated the violation as malum prohibitum rather than malum in se, so the absence of any inherent moral wrong limited the scope of criminal liability.
The Los Angeles Municipal Code defined a "convicted person" to include any individual convicted of an offense punishable as a felony in California after January 1, 1921, or equivalent out-of-state offenses. The code made it unlawful for such a person to remain in Los Angeles for more than five days without registering with the Chief of Police. It also made it unlawful to enter the city five or more times in a thirty-day period without registering. Failure to register constituted a continuing offense with each day counting separately. Virginia Lambert had lived in Los Angeles for more than seven years at the time of her arrest. During that time she had been convicted in Los Angeles of forgery, a felony under California law. She had not registered as required by the municipal code when she was arrested on suspicion of another offense and charged with violating the registration law. At her trial Lambert offered proof that she lacked actual knowledge of the duty to register, but the court refused to consider this defense. The jury convicted her, and the court fined her two hundred fifty dollars while placing her on three years' probation. She moved for arrest of judgment and a new trial, but the trial court denied the motions. The Appellate Department of the Superior Court affirmed the judgment on appeal. The Supreme Court of the United States noted probable jurisdiction under 28 U.S.C. § 1257(2) to review the case.
View caseMichael Miller accepted government surplus property believing it had been abandoned. Federal prosecutors charged him with conversion of public property. Because the underlying offense was classified as malum in se, the court required proof of criminal intent rather than treating the act as a strict-liability regulatory violation.
In December 1948, Morissette went hunting on a large tract of land in Michigan that the Government had used as a practice bombing range for the Air Force. Spent bomb casings from the range had been dumped into heaps and left exposed to the weather for four years or more. Morissette collected three tons of the casings, flattened them at a nearby farm, and sold them for eighty-four dollars. Morissette worked as a fruit stand operator in the summer and as a trucker and scrap iron collector in the winter. He was an honorably discharged veteran of World War II who had a good reputation among his neighbors. He loaded the casings onto his truck and transported them in broad daylight without any effort to conceal what he was doing. When authorities began an investigation, Morissette voluntarily and candidly told them the whole story, explaining that he believed the casings were abandoned and that he had no intention of stealing them. He was indicted for unlawfully, willfully, and knowingly stealing and converting property of the United States valued at eighty-four dollars in violation of 18 U.S.C. § 641. At trial, the District Court refused to permit Morissette to show that he thought the property was abandoned or to argue that he lacked criminal intent. The court instructed the jury that if it believed the government testimony, Morissette was guilty, and the jury convicted him. The court sentenced him to two months in prison or a fine of two hundred dollars. The Court of Appeals affirmed the conviction. The Supreme Court granted certiorari.
View caseMalcolm McKinley, a prohibition-era enforcement agent, persuaded a reluctant citizen to obtain illegal liquor so that an arrest could be made. The citizen was later charged with the offense. The court viewed the underlying prohibition violation as malum prohibitum, requiring examination of whether the inducement created liability for an inherently wrongful act.
Defendant Sorrells was indicted on two counts for possessing and selling one-half gallon of whiskey on July 13, 1930, in violation of the National Prohibition Act. He pleaded not guilty and at trial relied on the defense of entrapment. Prohibition agent Martin visited Sorrells' home near Canton, North Carolina, on Sunday, July 13, 1930, accompanied by three local residents who knew Sorrells. Posing as an ex-service man and furniture dealer from Charlotte, Martin asked Sorrells multiple times to obtain liquor, eventually succeeding after invoking their shared World War experiences in the 30th Division; Sorrells returned with a half gallon for which Martin paid five dollars. Sorrells presented testimony from the three companions corroborating the repeated requests and his initial refusals, along with evidence of his steady employment since March 1924 and good character from multiple neighbors. The government offered rebuttal testimony that Sorrells had a reputation as a rum-runner, but introduced no evidence of any prior liquor transactions by him. The trial court denied a motion for directed verdict, refused to submit the entrapment issue to the jury, and ruled as a matter of law that there was no entrapment. Following a guilty verdict, the court sentenced Sorrells to eighteen months' imprisonment, and the Circuit Court of Appeals affirmed. The Supreme Court granted certiorari limited to the question whether the evidence was sufficient to go to the jury upon the issue of entrapment.
View caseMariam Mansour sold a substance later shown to contain opium. Prosecutors charged her under a federal narcotics statute that omitted any intent element. The Court treated the offense as malum prohibitum, allowing Congress to dispense with proof of knowledge because the conduct lacked the inherent moral wrong of traditional common-law crimes.
The Narcotic Act was enacted on December 17, 1914. Section 2 of that statute prohibited the sale of derivatives of opium and coca leaves except pursuant to a written order on a form issued in blank by the Commissioner of Internal Revenue. Defendants in error were subsequently indicted in federal district court for selling specified quantities of such derivatives to another person without complying with the order requirement. The indictment contained no allegation that the defendants knew the character of the substances they had sold. The defendants responded by filing a demurrer that challenged the indictment for its failure to charge knowledge of the inhibited drugs. After considering the demurrer the District Court sustained it and quashed the indictment. The United States then brought a writ of error directly to the Supreme Court of the United States under the Criminal Appeals Act of March 2, 1907. This procedural path brought before the Court the question of whether the District Court had properly interpreted the Narcotic Act in requiring an allegation of scienter in the indictment.
View caseWhen the underlying misdemeanor is malum in se, most courts impose manslaughter liability for any resulting death without requiring separate proof that the death was foreseeable. When the misdemeanor is merely malum prohibitum, the majority rule requires that the death be a natural or foreseeable consequence of the unlawful conduct.
Supporting sources
Malum in se offenses are inherently immoral or wrong in themselves, such as murder, arson, or rape. Malum prohibitum offenses are wrong only because a statute or regulation prohibits them, such as many regulatory or safety violations.
Yes. Crimes classified as malum in se traditionally require proof of mens rea because they involve conduct that is morally wrongful. Regulatory offenses classified as malum prohibitum may be enforced on a strict-liability basis without proof of intent.
Courts generally treat safety regulations as malum prohibitum unless the conduct itself carries inherent moral wrongfulness. When the violation creates an obvious danger to human life, however, some decisions treat it as sufficiently wrongful to support manslaughter without additional foreseeability analysis.
Supporting sources
…of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se .” Surely there can hardly be a difference as a matter of fairness, of hardship, or of justice, if one may invoke it, between the case of a person wholly innocent of wrongdoing, in the…