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COMMONWEALTH v. MORGAN (09/26/72)

decided: September 26, 1972.

COMMONWEALTH
v.
MORGAN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lawrence County, No. 500 of 1970, in case of Commonwealth of Pennsylvania v. Geoffrey Morgan.

COUNSEL

Wendell G. Freeland, with him Lichtenstein & Bartiromo, for appellant.

J. Caldwell, Assistant District Attorney, with him W. Thomas Andrews, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion. Dissenting Opinion by Packel, J.

Author: Per Curiam

[ 222 Pa. Super. Page 512]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

This is an appeal from appellant's conviction for violating the Flag Desecration Act.*fn1 The Act prohibits mutilating, defacing, defiling, trampling upon, or casting contempt upon the American Flag or any representation thereof.*fn2

Appellant was arrested on May 29, 1970, for wearing a six by eight inch replica of the American Flag sewn on the seat of his pants. The appellant was tried before a jury on September 23, 1970. During the course of the trial, the judge instructed the jury as follows: "In a crime such as the one charged in this case there must exist both the act or the conduct charged, and a criminal intent. To constitute criminal intent it is not necessary that there exists any intent to violate the law, but when a person intentionally does that which the law considers to be a crime, he is acting with criminal intent even though he may not know that his acts or conduct are unlawful." Appellant's attorney filed a general objection to the charge, but did not specifically object to the aforesaid portion of the charge on criminal intent.

[ 222 Pa. Super. Page 513]

Whether or not criminal intent is an essential element of a statutory offense is a matter of statutory construction which must be determined in light of the statute's language and in view of the purpose of the legislation. Commonwealth v. Jackson, 146 Pa. Superior Ct. 328, 331, aff'd per curiam, 345 Pa. 456, 28 A.2d 894 (1942). There are some statutory crimes -- e.g., the pure food and drug acts, child labor laws, liquor control legislation, and speeding ordinances -- which utilize the criminal justice machinery to enforce social regulations of a purely civil nature. Commonwealth v. Koczwara, 397 Pa. 575, 580, 155 A.2d 825 (1959). Punishment in those instances is totally unrelated to the question of criminal intent, for "social interest in the general well-being and security of the populace has been held to outweigh the individual interest of the particular defendant." Commonwealth v. Koczwara, supra. Flag desecration is not a "social interest" crime in which the statute was enacted to protect the physical well-being of the community. Where the subject matter of the prohibition does not indicate a legislative intent to dispense with the element of ...


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