Biggs, Kalodner and Freedman, Circuit Judges.
After a joint trial of these six defendants in the Municipal Court of the Virgin Islands, Jose Manuel Nieves was convicted and sentenced to imprisonment for 90 days for permitting a building in his control to be used for the purpose of prostitution;*fn1 Gladys Ramos was convicted and sentenced to imprisonment for 30 days for soliciting for the purpose of prostitution;*fn2 and the other four defendants, Aleida Rodriguez, Ernestina Cordero, Adela Garcia and Becky Salvage, were each convicted and sentenced to imprisonment for 30 days under the vagrancy statute for residing and loitering in a house of ill fame.*fn3 They appealed to the District Court of the Virgin Islands, and from its judgments affirming their convictions (Government of Virgin Islands v. Rodriguez, V.l., 300 F. Supp. 860 (D.V.I.1969)), they have taken these appeals, which we consolidated for argument.
Defendants contend that we should modify the sentences imposed on them because they are excessive. For our power to do so, they rely on Government of the Virgin Islands v. Turner, 409 F.2d 102, 6 V.I. 659 (3 Cir. 1968). Turner was an exceptional case and Judge Aldrich's opinion, to which defendants refer, was withdrawn when the case was reheard en banc. In that opinion, moreover, it is acknowledged that "we have no power to review sentences." (409 F.2d at 104, 6 V.I. at 664). The sentences here imposed were within the limits authorized by the relevant statutes; and aside from characterizing them as excessive, defendants have presented no reason which would justify a conclusion that the sentences were anything other than the result of a proper exercise of judicial judgment. There is, therefore, no justification for any modification of the sentences, even if it be assumed that we have power to intervene.
Aside from the claim that the sentences were excessive, defendants mostly have repeated the arguments which the district court fully reviewed and disposed of in an opinion to which we cannot profitably add. There is, however, one important question which must be considered relating to the conviction of four of the defendants, Rodriguez, Cordero, Garcia and Salvage, for residing and loitering in a house of ill fame.
The information against these defendants charged them with residing and loitering in a house of ill fame "willfully and unlawfully," although the statute does not contain these words and makes no other express provision regarding knowledge. The question, therefore, is whether knowledge by the four defendants of the nature of the place as a house of ill fame is an essential element and was required to be proven. This is a question of first impression under the Virgin Islands statute and since it is fundamental to the conviction of the four defendants, we must consider it in detail.
The problem which is raised goes to fundamental conceptions of criminal responsibility and reaches back to the origins of our criminal law. It early became established at common law that an essential ingredient of a crime was the existence of a guilty mind, a mens rea, as well as the act itself, actus rea.*fn4 Later, as the states codified the common law of crimes, the courts usually took the view that it would be presumed that intent or knowledge was an implied element of the statutory crime unless the legislature expressly indicated otherwise.*fn5 In the rhetorical language of Bishop, the great nineteenth century textwriter, speaking of the requirement of an evil intent as an inseparable element of every crime:
"A statute is simply a fresh particle of legal matter dropped into the previously-existing ocean of law. It is subject to all the old attractions, and the old winds and lunar influences, precisely as were the several particles of the ocean before. Or, to speak without a metaphor, the new statutory rule is to be limited extended, and governed by the same common-law principles, and to the same extent, as were the common-law rules themselves before the statute was passed."*fn6
But even as the view requiring the existence of an evil intent or a mens rea hardened into accepted doctrine, a fresh factor introduced a new uncertainty. The government's increasing presence in a domain formerly considered private created a pressure for enforcement of administrative regulations by the use of criminal sanctions regardless whether there was evidence that the offender, often a corporation, acted with guilty knowledge.*fn7 Enforcement in these circumstances was justified by the application of the doctrine of strict liability in what have been called "public welfare offenses."*fn8 This doctrine found intellectual justification in the well-known objective liability views of Holmes,*fn9 which ran against the prevailing tendency and asserted that the courts were not justified in implying scienter into a silent statute. Holmes, J., judicially expressed this view in Commonwealth v. Smith, 166 Mass. 370, 44 N.E. 503 (1896), where a defendant's conviction on a charge of being in a place unlawfully used as a common gaming house was sustained:
"It is unnecessary, under the statute, to allege the defendant's knowledge of the presence of the implements, or the character of the place. The statute means that people enter such places at their peril. It goes no further than other statutes which have been enforced by this court. When, according to common experience, a certain fact generally is accompanied by knowledge of the further elements necessary to complete what is the final object of the law to prevent, or even short of that, when it is very desirable that people should find out whether the further elements are there, actual knowledge being a matter difficult to prove, the law may stop at the preliminary fact, and, in the pursuit of its policy, may make the preliminary fact enough to constitute a crime.
"In like manner [as in criminal liability for the sale of intoxicating liquors regardless of knowledge whether the liquor is intoxicating, and the offense of adultery even in innocence that the other party is married, the law] may say that people are not likely to resort to a common gaming house without knowing it, and that they must take the risk of knowing the character of the place to which they ...