I am unable to concur in the majority opinion. The defendant was prosecuted under an indictment, which charged him with the violation of section 8581-c21 of the Code of 1931, which is as follows:
"False statements, entries, and representations. Any person, firm, association, company or corporation subject to the provisions of this chapter, that shall subscribe or cause to be made any false statement or false entry in any book required to be kept or relating to any business to be transacted in this state pursuant to the provisions of this chapter, or make or subscribe to any false statement, exhibit or paper filed with the secretary of state, or shall make to the secretary of state, his superintendent, agent or representative any false or fraudulentstatement concerning the proposed plan of business to be transacted, or the nature, value or character of securities to be sold in this state, or shall make to said secretary of state, his superintendent, agent or representative any false statement as to the financial condition of such person, firm, association, company or corporation shall be deemed guilty of a felony, and upon conviction shall be fined in the sum of not more than five thousand dollars, or imprisoned not to exceed five years in the penitentiary or reformatory, or by both such fine and imprisonment in the discretion of the court."
It will be noted from a reading of the above statute that it makes no reference in terms to the intent or knowledge of the person charged with violation thereof. The jury could have found from the evidence in the record that the defendant believed the statement signed by him to be true, when he signed it, and that he had no intent *Page 867 to deceive. The position of the state is that the knowledge and intent of the defendant in the signing of such statement were immaterial. This contention is predicated upon the fact that the words "knowledge" and "intent" are not contained in the statute itself and that their absence therefrom evinced the legislative intent to eliminate those subjects as elements of the crime charged. Consistent with such view the jury was instructed on the trial that it was not available to the defendant to show in defense that he believed the statements signed by him to be true. The question therefore arising at this point is: May an act of the defendant be deemed "false" and "fraudulent" though withoutscienter and without intent to deceive? The position of the defendant is that knowledge of falsity and intent to deceive inhere in the statutory terms "false" and "fraudulent". In other words, if the statement signed by the defendant was false and fraudulent, it was so because it was knowingly made with fraudulent intent. In the absence of knowledge and intent the statement could not be fraudulent in a legal sense. If the plaintiff had chosen to prosecute a civil action at law for damages against the defendant for the alleged false and fraudulent statements, it would be incumbent upon him without any doubt, to prove the scienter.
May the defendant be found guilty of the felonious crime of making false and fraudulent statements, upon less proof than is required to establish liability in a civil action? If a defendant be charged with making false and fraudulent statements, what is the nature of the proof required to establish such a charge? Can falsity or fraud be established without proof of scienter? Does not scienter of the wrongdoer inhere in the very essence of fraud? The state relies for authority in support of its contention upon State v. Dunn, 202 Iowa 1188, 211 N.W. 850, and Jamison v. Burton, 43 Iowa 282. What was held in the Dunn case was that the legislature has power in the proper case to dispense with knowledge and intent as an element of the crime charged. This doctrine is sometimes invoked in aid of the police power of the state. It is applied to cases where a duty to be performed is created and where the failure to perform the duty constitutes the essence of the charge. The pronouncement is one which in its very nature can operate only in a limited field. It is exceptional in character rather than general, and is to be applied in any case with caution, bearing in mind at all times that evil intent is usually the heart of the felonious crime. "False" and *Page 868 "fraudulent" comprise the incriminating terms of the above statute. These terms imply evil intent and moral turpitude as a part of their definition. Indeed, these implications constitute their only definition. A "fraudulent representation" is one made with guilty scienter and intent to deceive. No other definition is possible. To eliminate guilty scienter and intent from the definition of a fraudulent representation is to leave the term without any definition at all. What we said in the Dunn case, relied on by the state, was the following:
"Whether a criminal intent or guilty knowledge is an essential element of a statutory offense is to be determined as a matter of construction from the language of the act, in connection with its manifest purpose and design."
Jamison v. Burton, 43 Iowa 282, relied on by the State, was a civil action to recover for the benefit of the school fund a penalty for the sale of intoxicating liquor to a minor. In construing the statute we held that knowledge of the minority on the part of the defendant was not a necessary element of the charge. This holding was put upon the ground that the sale of intoxicating liquors was under a "general inhibition" and that its legality was exceptional and that the liquor vendor was bound to know whether he was within the permission of the statute. The final sentence of the opinion is:
"When one sells intoxicating liquors, he must know at his peril whether or not a lawful sale can be made to the purchaser."
This case has no bearing whatever upon the question before us. It will be noted that the crime defined in the above section carries a maximum punishment of five years in the penitentiary, and a fine of $5,000. It is the contention of the State that the term "false statement" as used in the statute means no more than that the statement is not true; and that it is immaterial whether the untrue character of the statement is the result of mistake or inadvertence, or not. The State resists the idea that a "false statement" within the meaning of the statute carries any implication of an intent to deceive.
We had this question before us in Hatcher v. Dunn, 102 Iowa 411, 71 N.W. 343, 36 L.R.A. 689. That case was a civil action for damages against a state inspector of oils on his official bond wherein the inspector was charged with having falsely branded a certain barrel or package of oil. The trial court instructed the jury *Page 869 that the defendant was liable for the wrong branding, if such, and was so liable regardless of his knowledge or intent. We said:
"It is important to determine the meaning which should be attached to the word `falsely', as used in the statute. Does it mean inaccurate, erroneous, or faulty, merely, or does it include the thought of intentional wrong? It is true that a false branding may be said to be inaccurate, erroneous, faulty; but the word `false' usually includes, not only the element of error, but also of intentional wrong. It is said in 7 Am. Eng. Enc. Law, 661, that `this word means something more than untrue; it means something designedly untrue, deceitful, and implies an intention' to perpetrate some treachery or fraud.' See, also, Putnam v. Osgood, 51 N.H. 192-206; State v. Smith, 63 Vt. 201, 22 A. 604; Clapp v. Association, 146 Mass. 519, 16 N.E. 433, 436; Mason v. Association, 18 U.C.C.P. 19; Franklin Insurance Co. v. Culver,6 Ind. 137; Cohn v. Neeves, 40 Wis. 393. See, also, State v. Brady, 100 Iowa 191, 69 N.W. 290 [36 L.R.A. 693, 62 Am. St. Rep. 560]. The statute under consideration makes the officer who violates its provisions liable both civilly and criminally upon precisely the same state of facts, and is therefore a penal statute, to be strictly construed. Hanks v. Brown, 79 Iowa 563, 44 N.W. 811, and cases therein cited; Suth. St. Const., sections 208, 371."
The question has been often considered in other jurisdictions.
In People v. Luchetti, 119 Cal. 501, 51 P. 707, the Supreme Court of California discussed this question as follows:
"The word `falsely' as used in the statutory provision that if a witness has, in the opinion of the jurors, sworn falsely in any material respect, his testimony is not to be accepted and acted on without great caution, is not the equivalent of `mistakenly' and the omission or insertion of the word `wilfully' before the words `sworn falsely' would not change the effect of the language in a charge."
To the same effect, see Wood v. State, 48 Ga. 192, 15 Am. Rep. 664, and State v. Smith, 63 Vt. 201, 22 A. 604. The term "false statement" has been frequently interpreted by the federal courts in bankruptcy cases. Under the federal statute it is a bar to a discharge in bankruptcy if the applicant had been guilty of "obtaining money on a materially false statement in writing." In Doyle v. First *Page 870 National Bank of Baltimore, 231 F. 649 (C.C.A. Md.) the Circuit Court of Appeals for that district held as follows:
"A member of a bankrupt firm, who did not prepare the false statement, and who knew nothing of its contents, and did not know of the falsity of the statement which he did sign, cannot be denied a discharge under Bankr. Act July 1, 1898, c. 541, section 14b, cl. 3, 30 Stat. 550, as amended by Act June 25, 1910, c. 412, section 6, 36 Stat. 839 [11 USCA section 32], entitling him to a discharge, unless he had obtained money on a materially false statement in writing made by him, since `false' means that which is not true, coupled with a lying intent, and in jurisprudence imports more than the vernacular sense of erroneous or untrue."
It was held to the same effect in In re Rosenfeld (C.C.A.) 262 F. 876. In the latter case the term "false statement" was construed to mean that the "statement must be intentionally false". In the foregoing holding the federal courts are wholly in accord. Fouts v. State, 113 Ohio St. 450, 149 N.E. 551, was a prosecution wherein the defendant was charged with falsely representing himself as a public officer. The question before us was quite fully discussed in that case by the Supreme Court of Ohio as follows:
"The defendant was indicted, not for representing himself to be a police officer, but for falsely representing himself to be a police officer. Now the word `false' has two distinct and well-recognized meanings: (1) intentionally or knowingly or negligently untrue; (2) untrue by mistake, accident or honestly after the exercise of reasonable care. United States v. Ninety-nine Diamonds, 139 F. 961, 966, 72 C.C.A. 9, 2 L.R.A. (N.S.) 185.
"`In the more important uses, in jurisprudence, of "false" and "falsely", they usually import somewhat more than the vernacular sense of "erroneous" or "untrue". They are oftenest used to characterize a wrongful or criminal act, such as involves an error or untruth, intentionally or knowingly put forward. A thing is called "false" when it is done, or made, with knowledge, actual or constructive, that it is untrue or illegal, or is said to be done falsely when the meaning is that the party is in fault for its error.' Ratterman, Treasurer, v. Ingalls, 48 Ohio St. 468, 483, 28 N.E. 168, 169; Hatcher v. Dunn, 102 Iowa 411, 71 N.W. 343, 36 L.R.A. 689; Putnam v. Osgood, 51 N.H. 192, 206; State v. Smith, 63 Vt. 201, *Page 871 22 A. 604; Clapp v. Mass. Benefit Assn., 146 Mass. 519, 16 N.E. 433; Franklin Ins. Co. v. Culver, 6 Ind. 137; Cohn v. Neeves, 40 Wis. 393.
"`Falsely', as used in an instruction stating that it is for the jury to determine whether defendant falsely represented certain facts, will be construed to mean something more than `mistakenly' or `untruly', and cannot be construed otherwise than to mean something designedly untrue or deceitful, and as involving an intention to perpetrate some fraud. State v. Brady,100 Iowa 191, 204, 69 N.W. 290, 36 L.R.A. 693, 62 Am. St. Rep. 560.
"If the word `falsely' meant nothing in section 12860, why should it have been used at all? The theory of the trial court seems to be that a mere misrepresentation, even though made in absolute good faith, renders one liable to indictment under this statute. Under that theory of the case the section might well read: Whoever, not a member of a regularly organized police department, a legally elected public official, or commissioned by the proper legal authority, represents himself to be a police officer, sheriff, deputy sheriff, or constable, is liable to fine and imprisonment. The legislature, however, evidently considered that the word `falsely' has some meaning in this section; that there must have been actual or constructive knowledge of the untruth of the representation, and there must have been the element of actual or constructive deceit present in order to constitute the falsity of the statement. By its use of the word `falsely' the legislature injected the element of good faith into the crime defined in section 12860."
To put the question in another way, falsity, as distinguished from mistake or accident or inadvertence, implies moral turpitude.
Behind every major crime lies an evil intent to commit it and to inflict resulting injury upon third persons. Indeed, there can be no such crime without intent behind it. The injury attempted may be frustrated and the attempt may fail of its accomplishment. But even so the attempt and the intent to commit the same may yet remain to be punished by criminal prosecution. In this case the purpose of the alleged fraudulent statement was to invite subscription to preferred stock. In that respect the alleged false statement had no result. The defendant's guilt, if any, must be predicated upon his intent. Upon this record the onlyincriminating element, if any, which can be contended for, is the guilty scienter and the intent to *Page 872 deceive. Why then should the defendant not be permitted to show in defense that he believed the statement to be true when he made it, and that he had no intent to deceive?