Adams and James Rosen, Circuit Judges, and Stapleton, District Judge.
STAPLETON, District Judge.
Appellant, Harry Weiler, was found guilty of violating Section 922(g) (1) of Title 18 of the United States Code, and was sentenced to two years probation and fined $500.00. Section 922(g) (1) provides:
"(g) It shall be unlawful for any person --
(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
to ship or transport any firearm or ammunition in interstate or foreign commerce."
Weiler stipulated below that he had previously been convicted of a crime punishable by imprisonment for a term exceeding one year. There was ample evidence to support the jury's conclusion that Weiler transported a hand gun from New Jersey to Pennsylvania on February 9, 1970. Weiler maintains, however, that his conviction must be overturned because the court failed to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt that he "had knowledge or probability of knowledge of the provisions of Section 922(g) (1) and of its applicability to him." Weiler asserts that the statute, properly construed, as well as the Due Process Clause of the Fifth Amendment of the United States Constitution require that the prosecution shoulder this burden.
At trial the defendant requested, but the court refused to give, instructions to the effect that the prosecution had the burden of proving beyond a reasonable doubt (1) that the defendant "knew that he had been convicted of a crime for which he could be imprisoned for one year or more," and (2) that he "knew that the firearm in question was capable of ejecting a projectile."*fn1 The court did, however, instruct the jury (1) that the prosecution was required to prove beyond a reasonable doubt the defendant "intentionally" committed the act prohibited by the statute, (2) that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted and (3) that an act or failure to act is knowingly done if done voluntarily and not because of mistake or accident. The defendant did not request, and the court did not give, an instruction that the government had the burden of proving beyond a reasonable doubt that the defendant knew his acts were unlawful or otherwise wrongful.
At trial the defendant, although he testified and produced other evidence in his behalf, did not tender any evidence (1) that he did not know he had been convicted of a crime punishable by a year's imprisonment, (2) that he did not know that the gun was capable of expelling a projectile,*fn2 or (3) that he did not know that it was unlawful for him to transport a gun in interstate commerce.
The court below properly refused the two requested instructions. The court did charge that general criminal intent, an intent to do the act which the statute makes unlawful, was required. The general instruction with respect to intent and mistake or accident was all the defendant was entitled to on this point in the absence of any evidence supporting the particularized theories contained in the two requested instructions. United States v. Levinson, 405 F.2d 971 (6th Cir. 1968); United States v. Kahn, 381 F.2d 824 (7th Cir. 1967); Johnson v. United States, 370 F.2d 495 (9th Cir. 1966); Axelbank v. United States, 88 U.S.App.D.C. 147, 189 F.2d 18 (1951).
With respect to appellant's third point, which he stresses on this appeal, evidence was introduced during the trial from which the jury could have concluded that Weiler knew that his conduct was unlawful. The court's charge, however, did not put this issue squarely to the jury.*fn3 Since the failure to charge on this point would be "plain error" if defendant were right in his contention that specific criminal intent is an essential element of Section 922(g) (1), we must proceed to analyze defendant's argument regarding that statute and the Constitution. United States v. Byrd, 352 F.2d 570 (2nd Cir. 1965).
Section 922(g) (1) of the Gun Control Act*fn4 does not on its face proscribe any particular state of mind as an element of the offense. Appellant concedes this, but suggests that we should read into the statute the common law concept of an "evil state of mind" and hold that this casts upon the government the burden of proving knowledge on the defendant's part of the unlawfulness of his acts. He relies in this regard on Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952).
The defendant in the Morissette case had been convicted of violating a federal statute making it a crime to embezzle, steal, purloin or knowingly convert to one's own use any "thing of value of the United States."*fn5 He tendered testimony that he took the shell casings involved only because he thought they were abandoned and with no wrongful or criminal intent.*fn6 The Supreme Court reversed, noting that the courts ...