Appellant-defendant Kipley Miller (Miller) appeals his conviction after a bench trial for the offense of receiving payment while indebted, a class D felony.
We reverse.
A summary of the facts shows that Miller contracted with Estil Spurlock in 1977 to build the Spurlocks a house. During construction, Miller accepted three installment payments totalling $28,900 from the Spurlocks but did not inform them that he had not yet paid for all the materials used in building their home. Miller subsequently declared bankruptcy, leaving the Spur-locks' house unfinished. Zeigler Building Materials, a supplier to the Spurlock construction, perfected a mechanic's lien on the Spurlocks' property. Miller was subsequently charged and convicted pursuant to IND.CODE 82-8-8-15 on June 10, 1985, and brings this appeal with three issues, the first of which determines this case: whether the evidence on the mens rea element is sufficient to support the conviction.
Miller argues that I.C. 82-8-8-15 requires a specific mens rea element which is *593absent from the statute and charging information. He alleges the State failed to offer evidence on this element and points out the statute has been amended to specifically require criminal intent since his conviction. See LC. 32-8-8-15 (as amended by Acts 1978 and 1988).
In 1977, as relevant here, 1.C. 382-8-8-15 read:
Receiving payment while indebted-Failure to give notice of indebtedness-Penalty.-Any person, firm or corporation who, as contractor or subcontractor or otherwise, shall have performed labor, supplied services or furnished material or machinery in the construction, reconstruction, erection, repair or remodeling of any building, structure or any other work of any description whatsoever, and who shall accept payment for the labor, services, material or machinery so furnished and supplied, and who, at the time of receiving such payment, is indebted to another for labor, including the cost of renting or leasing construction and other equipment and tools, whether or not an operator is also provided by the lessor, services, material or machinery used or employed in the construction, reconstruction, erection, repair or remodeling of such building or structure, and who at the time of receiving such payment shall fail or refuse to notify, in writing, the person, firm or corporation from whom such payment was received, of the existence of such outstanding indebtedness, and if the person, firm or corporation from whom such payment was received, shall suffer loss thereby, such person, firm or corporation, or the responsible officer thereof so accepting such payment shall be guilty of a felony and, upon conviction therefor, shall be fined in any sum not exceeding one thousand dollars [$1,000], or imprisoned in the Indiana state prison for not less than one [1] year nor more than five [5] years, or both such fine and imprisonment, in the discretion of the court.
It is fundamental in criminal law that an offense must contain both mens rea (guilty mind) and actus reus (voluntary conduct) elements. Rogers v. State, (1978) 267 Ind. 654, 373 N.E.2d 125; Sills v. State, (1984) Ind., 468 N.E.2d 228, 241 (See Givan, C.J., concurring in result). Further, criminal offenses are traditionally classified as either malum in se, ie. inherently evil as adjudged by society, or malum prohibi-tum, ie. wrong only because prohibited by legislation. Gregory v. State, (1973) 259 Ind. 652, 291 N.E.2d 67, 68.
In Indiana, proof of a mens rea element is rarely excused, and the narrow exceptions tend to involve certain malum prohi-bitum regulatory offenses. E.g.: Groff v. State, (1908) 171 Ind. 547, 85 N.E. 769 (adulterated food offense); Sewell v. State, (1983) Ind.App., 452 N.E.2d 1018 (traffic offense). However, like malum in se crimes, - malum - prohibitum - offenses usually require proof of a mens rea. 8 LLE. Criminal Law § 10 (1971). See eg.: Noble v. State, (1967) 248 Ind. 101, 223 N.E.2d 755; Johnson v. State, (1968) 251 Ind. 17, 238 N.E.2d 651, 653. But see Gregory, 291 N.E.2d at 68.
Many Indiana cases have construed mens rea elements into criminal statutes which omit language of culpability. See eg.: Noble, supra (false attestation as notary); Newton v. State, (1983) Ind.App., 456 N.E.2d 736 (child molesting); Gregory, supra (robbery); Satterfield v. State, (1984) Ind.App., 468 N.E.2d 571 (possession of bombs) quoting Malich v. State, (1929) 201 Ind. 587, 169 N.E. 531 (prohibition). We choose to follow these cases and construe knowledge and intent as statutory elements of the felony of which Miller was convicted. In support, we also note that when a criminal statute omits words of culpability, the legislative intent determines whether a mens rea element should be construed. Gregory, supra; LaFave Criminal Law § 90, p. 219. Here, I.C. 32-8-3-15 is a criminal statute which derived from the common law offense of fraud. 14 LLE. Froud § 3 (1959). Our courts favor the requirement of a mens rea in offenses from common law derivations. See: Gregory, 291 N.E.2d at 68; Newton, *594456 N.E.2d at 7389-740. See also: 22 C.J.S. Criminal Law § 30, p. 104.
It is well established that we will not reweigh evidence and will affirm a conviction when probative evidence supports a reasonable inference of guilt beyond a reasonable doubt on each element of an offense. Newton, 346 N.E.2d at 742.
However, we have read the record and agree with Miller that no evidence of eriminal intent was adduced. This element is often inferred from a defendant's conduct and the surrounding cireumstances. E.g.: Shields v. State, (1983) Ind.App., 456 N.E.2d 1033, 1039. However, we are unwilling to affirm a felony conviction on an offense which has its roots in fraud, 14 LLE. Froud § 3, when no intent to defraud has been proven beyond a reasonable doubt. In fact, no evidence supports this element in the present case and we are asked to infer it from Miller's conduct and the circumstances. This case is different from Gregory, supra, or Newton, supra, where criminal intent was inferred from the defendants' acts of robbery and child molesting. It is reasonable to infer that one who brandishes a gun while taking another's money, (Gregory, or molests young children, Newton, intends the criminal consequences of his acts. Here, however, there is nothing inferentially culpable about a contractor accepting payments for work he is providing. In fact, such payments could be used to pay the debts to his materialman and laborers1 We will not infer the requisite criminal intent from these circumstances.
Likewise, the information charging Miller was defective since it failed to allege as an essential element criminal intent. See IND.CODE 35-8.1-1-2(a)(d4) [now 1.0. 35-84-1-2(a)(4) ]; Head v. State, (1982) Ind., 443 N.E.2d 44, 52. Whether the elements are expressed in the statute or enter into the offense by construction, they must be included so that the accused may know what he must meet. McCormick v. State, (1954) 233 Ind. 281, 119 N.E.2d 5, 7; Ind. Const.Art. 1, § 18.
In short, unlike most offenses where the prohibited conduct might permit a reasonable inference of intent, the felony offense on which Miller was convicted, derived from fraud and addressed by only one appellate decision since the statute's inception in 1909 wherein the defendant's conviction was reversed,2 has not been supported with evidence beyond a reasonable doubt on the element of intent.
Conviction reversed.
NEAL, J., concurs. RATLIFF, J., dissents with separate opinion.. We note that under Illinois' equivalent statute, ILL.ANN.STAT. Ch. 82, § 5 (Smith-Hurd Supp. 1986), a civil statute, the owner is under a duty to require notice of indebtedness from the contractor and waives all claims when he fails to do so. See: Swansea Concrete Products, Inc. v. Distler, (1984) 126 IIl.App.3d 927, 81 Ill.Dec. 688, 467 N.E.2d 388, 393.
. Williams v. State, (1929) 89 Ind.App. 46, 165 N.E.2d 762.