I.

This case pends on defendant's appeal from a judgment of conviction upon which a $1.00 fine was imposed on March 27, 1972 by the Honorable Calvin K. Hamilton, Chief United States Magistrate for the Western District of Missouri, for an alleged violation of the Bald Eagle Protection Act of 1940, 16 United States Code § 668, as that Act read before its 1972 amendment by the Act of October 23, 1972, Pub.L. 92-535. Defendant's timely appeal was filed April 6, 1972. Chief Magistrate Hamilton stayed execution of the $1.00 fine pending this appeal.

This case was filed and prosecuted in the St. Joseph Division of this Court because the parts of the bald eagle, 'to wit: both legs including tarsus and talons' (in the language of the information), involved in this case came from a dead and partially decomposed bird found by the defendant, several days after its death from unknown causes, on a beaver dam located in the Squaw Creek National Wildlife Refuge, Mound City, Missouri.

The Honorable Richard M. Duncan, throughout his long and distinguished career as a member of this Court, was assigned as the presiding judge of its St. Joseph Division. Those of us who knew him well might speculate about the reasons why Judge Duncan, who was well known for keeping his docket current had not decided the 1972 appeal before his untimely death on August 1, 1974. However, the files and records of this case show that the appeal is still pending and must be decided. Having been assigned duty as the presiding judge for the St. Joseph Division by order of the Court en Banc on November 15, 1974, and after having carefully considered the briefs of the parties, we find and conclude that the judgment of conviction should be reversed outright and that the fine imposed thereon be set aside as void.

II.

The information, filed January 11, 1972, alleged the following:

UNITED STATES ATTORNEY CHARGES THAT:

On or about December 5, 1971, RICHARD L. HETZEL, in Holt County Missouri, in the Western District of Missouri, did unlawfully take and possess the parts of a dead bald eagle, to wit: both legs including tarsus and talons, in violation of 16 U.S.C. 668.

Section 668, Title 16, U.S.C., as it read before its amendment, provided in its material parts that:

Whoever, . . . without being permitted to do so as provided in sections 668 to 668d of this title, . . . shall take, possess, . . . at any time or in any manner, any bald eagle commonly known as the American eagle, or any golden eagle, alive or dead, or any part, nest, or egg thereof of the foregoing eagles, shall be fined not more than $500 or imprisoned not more than six months or both: . . .

Section 668c, Title 18, U.S.C., the definition section of the Bald Eagle Protective Act of 1940, as it read at the time of this prosecution, expressly provided that the word 'take,' as used in Section 668 'includes also pursue, shoot, shoot at, wound, kill, capture, trap, collect, or otherwise willfully molest or disturb,' (emphasis ours). It must be kept in mind that the United States Attorney charged in the information that the defendant allegedly did 'unlawfully take and possess the parts of a dead bald eagle . . . in violation of 16 U.S.C. 668.'

We attach hereto as an Appendix a copy of Chief Magistrate Hamilton's memorandum opinion which also contained his findings of fact and conclusions of law. The factual circumstances were virtually undisputed from the outset of the case. We accept and adopt the factual findings made by Chief Magistrate Hamilton in his memorandum opinion and those expressly made as findings of fact. We reject, however, Chief Magistrate Hamilton's conclusions of law and reverse the conviction outright and set aside the fine for the reasons we now state.

III.

In order to sustain the defendant's conviction, it is clear that Chief Magistrate Hamilton adopted the government's argument, based solely upon its reading of Rogers v. United States, (8th Cir. 1966) 367 F.2d 998, that proof of 'guilty knowledge and specific intent are not essential elements' of a Section 668 offense. Rogers v. United States, of course, did state that under the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-711, it is not necessary that the government prove that a defendant violated its provisions with guilty knowledge or specific intent to commit the violation. The difficulty with the government's argument is that the defendant in this case was not prosecuted under the Migratory Bird Treaty Act. He was instead prosecuted for