(dissenting).
Were it possible to adjudge the complaint of the defendants upon the basis alone of their moral right to assert it, as distinguished from the legal rights which must be preserved to every person accused of crime, and if this moral question could be considered alone, without regard for legal precedent by which we are bound and which we may establish, the defendants’ cause could be easily disposed of. But on the contrary, of course, we must be guided by legal principles. It is upon the application of these that a difference arises between me and my colleagues.
The defendants’ assignment of error upon those portions of the charge of the Court which instructed the jury that in determining the question of intent it was the law that a person intended the usual consequences of his acts, and that intent is legally presumed and inferred from the result of the action, raises a question much more serious and fundamental than is presented by a merely erroneous charge in the usual criminal case.
The offense for which the defendants were being tried was for a charge of violation of 18 U.S.C. Section 242, with the additional charge of having conspired to do so. Thus, the question of “wilfulness” and “specific intent” must have been properly determined not merely to determine guilt, but also must have been established before there was, in legal and constitutional contemplation, any offense at all. This plainly results from the decision of the four majority justices in Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 89 L.Ed. 1495. Indeed, it is there stated that the failure of the trial Court to properly instruct the jury upon the question of intent was an error “so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest, (that) we think it is necessary to take note of it on our own motion. Even those guilty of the most heinous offenses are entitled to a fair trial.” Screws v. United States, supra, 325 U.S. at page 107, 65 S.Ct. at page 1038. Consideration of the opinions of both the four majority justices and the three dissenting justices *715leads inescapably to the conclusion that in no event can the statute which forms the basis of the present prosecution be constitutionally applied, unless the statutory term “wilfully” be strictly held an essential ingredient of the offense and to require that the offense be perpetrated with the specific intent and purpose to deprive another of a constitutional right. It is not sufficient that the defendants have “a generally bad purpose.” The three dissenting justices in the Screws case were of the opinion that even with this application and construction the statute was unconstitutional. It is apparent, therefore, that the question here raised against the charge of the Court is, in essence, a constitutional question and goes to the vitals of the entire case.
In the present case, the trial Judge, in his charge, fairly and ably submitted to the jury the principles of law properly applicable in the determination by the jury of the existence of the essential ingredient of “wilfulness” as set forth above. However, the Court in immediate connection therewith, apparently overlooking at the moment the distinction generally between general intent and specific intent in criminal law, (and of special moment in the present case), charged the jury, in addition to the other means for proving intent that "it is the law that a person intends the usual consequences of his acts,” and further that “wrongful acts knowingly or intentionally committed can neither be justified or excused on the ground of innocent intent. The color of the act determines the complexion of the intent. The intent to injure or defraud is presumed when the unlawful act, which results in loss or injury, is proved to have been knowingly committed. It is a well settled rule, which the law applies to both criminal and civil cases, that the intent is presumed and inferred from the result of the action.” (Italics supplied).
It is true that immediately following the last quoted language the Court instructed the jury of the requirements of a specific intent in the language set forth in the majority opinion. It seems clear, however, that for either, or both, of two reasons the unobjectionable portions of the charge did not remove the fatal taint inflicted by the language of the judge with reference to the intent legally presumed to follow from the commission of acts. Thus, even though the Court imposed the requirement of specific intent, the jury was, nevertheless, in effect told that it could be satisfied by the legal presumption resulting from the “action.” With the evidence sufficient to show wholly unjustified and inhumane acts by the defendants the instruction was legally equivalent to the statement that if the defendants committed an unlawful assault upon Rasberry, this alone would furnish a legal presumption that the defendants had a deliberate and wilful purpose to deprive him of a constitutional right. This entirely misconceives, in the nature of the present case, the requirement that the offense be wilfully committed, that is, committed with specific intent. The Federal offense is not the unlawful assault, but the wilful deprivation of civil rights.1 It is a well established rule of law that where wilfulness is an essential ingredient of an offense the specific intent must be proved as an independent fact and can not be presumed as a matter of law from the commission of an unlawful act. Hargrove v. United States, 5 Cir., 67 F.2d 820, 823, 90 A.L.R. 1276; Hubbard v. United States, 9 Cir., 79 F.2d 850, 853 ; 22 C.J.S., Criminal Law, §§ 32, 33, pp. 91, 92; Brill’s Cyclopedia Criminal Law, Section 94. On the other reason, if the validity of the conclusion that the effect of the charge was to instruct the jury that the requisite specific intent could be established by the legal presumptions referred to could be validly questioned, which may not be logically done, still it must be said that the instructions are conflicting. They, therefore, must be legally held to have cancelled, each, the effect of the other, and there was no proper charge given on specific intent. Thus, in either view there was clearly a failure to properly instruct the jury upon *716“the essential ingredients of the only offense on which the conviction could rest.” This failure, under the ruling in the Screws case, supra, requires the grant of a new trial.
Rehearing Denied; Russell, Circuit Judge, dissenting
. The statement in Crews v. United States, 5 Cir., 160 F.2d 746, 750 was not made in defining a legal instruction to the jury. It was the expression of the legal conelusion of the appellate Court upon consideration of the sufficiency of the evidenee.