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Phillips v. State3/10/2000
e defining an offense, an appropriate culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability." (Emphasis added.)
The commentary to § 13A-2-4 states:
"Subsection (b) explicitly states a policy adverse to arbitrary use of `strict liability' concepts. An express statement is required in the statute defining the offense if strict liability is being imposed." The State argues that § 13A-2-4 should not apply to § 9-11-244 because § 9-11-244 was enacted in 1951 and § 13A-2-4 was enacted in 1977. However, the Legislature revised § 9-11-244 in 1991. If the Legislature had intended § 9-11-244 to state a strict-liability offense, it could have added an express statement to that effect in 1991. The Legislature did not add such an express statement. Therefore, we must assume that the Legislature was aware of § 13A-2-4, when it revised § 9-11-244, and chose not to make the offense a strict-liability offense. In the absence of an express statement by the Legislature indicating an intent to make hunting over a baited field a strict-liability offense, we decline to make a criminal conviction resulting in up to six months' jail time "an unavoidable occasional consequence of ... hunting." Delahoussaye, 573 F.2d at 912.
Because we conclude that a conviction under § 9-11-244 requires a showing that the defendant either knew or should have known that the area over which he was hunting was baited, the trial court erred in instructing the jury that Phillips could be found guilty even without proof that he baited the field or knew that the field was baited. Therefore, we remand this case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Hooper, C.J., and Maddox, Houston , See, Lyons, Johnstone, and England, JJ., concur
Brown, J., recuses herself.
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