Perkins v. United States

NEBEKER, Associate Judge,

dissenting:

I cannot agree that the malicious disfigurement proscription of D.C.Code 1973, § 22-506 is simply a “sentencing statute” that preserves the requirements of specific intent and malice. The malicious disfigurement proscription differs from the Coventry Act and the Maryland Act (Md.Ann. Code art. 27, § 385 (1976 Supp.)) by deleting the specific intent element and substituting the element of malice which is a less arduous element than specific intent or malice aforethought. Burge v. United States, 26 App.D.C. 524 (1906); Hamilton v. United States, 26 App.D.C. 382 (1905). In my view that dispels any notion that specific intent need be proved. See W. LaFave & A. Scott, Handbook on Criminal Law § 83 at 616 (1972); see, e.g., Wis.Stat.Ann. § 940.21 (West); see also Charles v. United States, D.C.App., 371 A.2d 404, 411 (1977) (malicious destruction of stolen property); Nichols v. United States, D.C.App., 343 A.2d 336, 341 (1975) (malicious destruction of property); Curry v. United States, D.C.App., 322 A.2d 268 (1974) (malice for second-degree murder); United States v. Hinkle, 159 U.S.App.D.C. 334, 487 F.2d 1205 (1973) (malice in homicide instruction). The words of the statute, being a substantive change or repeal of the earlier proscription, should be construed in their ordinary sense and with the legal meaning commonly attributed to them. United States v. Young, D.C.App., 376 A.2d 809, 813 (1977); United States v. Thompson, D.C.App., 347 A.2d 581, 583 (1975). The only explanation for this holding lies in a penchant to make criminal law enforcement more complex and difficult without achieving any good end.