specially concurring.
Concurring in the opinion of the Court and write only to further discuss State v. Adjustment Department, Credit Bureau, Inc., 94 Idaho 156, 483 P.2d 687 (1971). That case dealt with the issue of whether or not a corporation could be found guilty of a specific intent crime, extortion. The opinion in that case is somewhat ambiguous. It quotes in pertinent part:
The corporation in this case could not be bound by the actions of its agent unless that agent’s acts were authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment.
Subsequently, in the next line, it says as follows:
(2) Corporation law and practice, Horstine, 1959 S 566, pg. 47, in our opinion correctly states the rule as to criminal liability:
A corporation may be convicted if ... (c) the commission of the offense was authorized, requested, commanded or performed (i) by the board of directors (ii) by an agent having responsibility for formation of corporate policy or (iii) by a ‘high managerial agent’ having supervisory responsibility over the subject matter of the offense and acting within the scope of his employment on behalf of the corporation ____ However in this case we are dealing with an analysis of whether a corporation could have been found to have committed the specific intent crime as defined in I.C. § 18-1501. I.C. § 18-1501(1) deals with the felony provision in which circumstances or conditions likely to produce great bodily harm or death are discussed and (2) defines those circumstances and conditions other than those likely to produce great bodily harm or death and are therefore defined as a misdemeanor.
However, in this case we are dealing with an analysis of whether the corporation could be liable for committing the specific intent crimes found in I.C. § 18-1501. In Idaho Code § 18-1501, the first subsection deals with felony conduct and the second with misdemeanor conduct. The consistent theme in both of these provisions however is that any *858person who “willfully causes or permits any child to suffer ____ unjustifiable physical pain or mental suffering or who having the care and custody of any child willfully causes or permits the person of such child to be injured or willfully causes or permits such child to be placed in such a situation that its personal health may be in danger.” The statute thereby defines a cause of action when a person “permits” a child to suffer unjustifiable physical pain or mental suffering, or the health of such child to be injured, or endangered, and the type of injury, then defines the punishment.
I would note that “permit” as defined in the Tenth Edition ofMerriam Webster’s Collegiate Dictionary is: “1: to consent to expressly or formally 2: To give leave 3: to make possible: to give an opportunity: allow.” The definition of “allow” in the same dictionary has as one of its definitions “to forebear or neglect to restrain or prevent.” As a result, liability under this statutory construct can be attributed to action as well as a lack of action consistent with the majority’s discussion.
Justice J. JONES concurs.