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The Need for an Actus Reus

Proctor v. State [176 P. 771; 1918 OK] (pp. 107)

• Summary: Proctor was convicted of "keeping a place, to wit, a two-story building, with
the intent and for the purpose of unlawfully selling, bartering, and giving away spirituous,
vinous, fermented and malt liquors," in accordance with Oklahoma statute. Proctor
demurred on the ground that there is no criminal offense. This court found that the
statute was unconstitutional, and that there was not a crime. The "keeping of a place" is
a lawful act, and just because it is coupled with the intent to commit a crime, does not
make it a crime. A guilty intention is not punishable, because for one, it is practically
impossible to prove, and also because people still have a choice, even though they have
the thought to do something, to abstain from committing a crime. So until the guilty
intention manifests into an actual unlawful act, there is no crime.

• Notes:
o The court said that the prosecutor here failed to charge Proctor with an "overt act"
in connection with the alleged culpable intent. An "overt act" is an act that can
clearly be proven by evidence - something physically done, that could have been
seen, etc.
 The Proctor court doesn’t care that the conduct caused no harm,
specifically because it was explicitly condemned by the statute. The only
point they cared about here was the constitutionality of the statute.
o What is the purpose of the act requirement? Why would we want to not punish
people merely for their thoughts?
 Hard to prove. We would start looking at all conduct and other
circumstances to determine intent. We may start thinking that because a
person is more prone to commit a crime, the intent (their thoughts) would
be unlawful. But by doing this, we are taking away the right of a person to
make choices. Even though there is a thought, people can abstain, and
make the choice to do the right thing.

o Class Notes
o Elements of the crime:
 Actus Reus - keeping a building
 Mens rea - the intent to unlawful sell liquor
o The problem in Proctor is that there is no rational basis of associating the act with
the intent.
 Needs to be some act that there is a reasonable association with something
legislature is worried about.
 For example, if Proctor had liquor in his possession, then the relationship
of intending to distribute the alcohol would be much closer, and would be
punishable.