People v. Avery

I am ready to subscribe to the following language in the opinion of Mr. Justice SHARPE:

"A person might surreptitiously put a bottle of liquor in a man's pocket, or one or more bottles in his grip or in his room. In such cases he would not be conscious of the fact that the bottles were in his possession, and his ignorance of that fact would be a good defense. But if he saw the bottle or bottles, and they were of the kind in which intoxicating liquor is usually put up for sale, and if he neglected to make a reasonable effort to ascertain the contents, his ignorance would be no defense to a charge of unlawful possession."

If, however, this language is to be accepted by this court, this case must be reversed. The trial judge in an exhaustive instruction held that it was no defense that the defendant had no knowledge that the cartons contained intoxicating liquor, or that by ordinary diligence defendant could not have discovered that they contained liquor. One excerpt from the charge illustrates the vein running through it. He said:

"Therefore, under the circumstances and in view of the language of the statute and the decisions that I have read, I cannot feel that I would be doing my duty in saying to you that you might acquit this man if you should find that he didn't know or ought not to have known it."

The rule adopted by the overwhelming majority of States so far as I have been able to ascertain is that if the defendant has no knowledge that the commodity transported is intoxicating liquor, and by the exercise of reasonable diligence would not discover that it was intoxicating liquor, he cannot be held to have violated the law. The holding of the Massachusetts court cited by my Brother (Commonwealth v. Mixer, 207 Mass. 141 [93 N.E. 249, 31 L.R.A. (N.S.) 467, 20 Ann. Cas. 1152]) stands alone in the Union so far as I have been able to find in the time at my disposal. My Brother has considered some of the cases holding to the contrary. The Oregon (State v. Harris,106 Or. 211 (211 P. 944]) and Mississippi (City of Jackson v.Gordon, 119 Miss. 325 [80 So. 785 ]) cases quoted from by my Brother both announce a contrary doctrine. I quote from the syllabus in Troup v. State,30 Ga. App. 346 (117 S.E. 410):

"Under the facts of this case the court did not err in charging the jury 'that if the liquor in question was on the defendant's premises without his knowledge and consent, he would not be guilty; if you find it was there with his knowledge and consent he would be guilty.' "

I also quote the syllabus in State v. Fishback, 122 Wn. 246 (210 P. 375):

"Owner of automobile, who was hired to make a certain trip and was not informed and did not know that person by whom he had been hired proposed to bring back liquor, and who did not discover that there was liquor in the automobile until an accident, when the automobile was taken to a garage and the liquor discovered, was not guilty of bootlegging."

I desire to also call attention to some other cases not discussed by my Brother and I shall only consider cases dealing with the liquor laws of the various States. In Golpi v. State,14 Okla. Crim. 564 (174 P. 288), it is held (quoting from the syllabus):

"A person who conveys a package from one place in this State to another place therein, which package contains intoxicating liquor of which he has no knowledge and no information sufficient to put a reasonable man on inquiry, is not subject to the punishment imposed by the statute for unlawfully conveying the intoxicating liquor from one place in this State to another place therein."

In Parker v. Commonwealth, 135 Va. 625 (115 S.E. 566), it was said:

"Did the court err in refusing to give the following instruction offered by the accused:

" 'The court instructs the jury that, in order to be guilty of transporting ardent spirits as charged in this indictment, the defendant must have known that the package handled by him contained ardent spirits.'

"This question must be answered in the affirmative.

"The accused by his testimony claimed that he did not know the contents of the bag he was carrying when arrested. If true, this was a complete defense."

The defendant here was a private carrier for hire. Doubtless the rule governing a common carrier was applicable to him. InAdams Express Co. v. Commonwealth, 160 Ky. 66 (169 S.W. 603), it was said by Chief Justice Hobson, speaking for the court:

"When whisky is shipped into local option territory and delivered by a carrier, it is incumbent on the carrier before delivering the whisky, to be circumspect and use ordinary care to learn for what purpose it is to be used. If it acts upon reasonable grounds in good faith, after such investigation as ordinary care requires, and is misled, it is not liable; otherwise, it is; this is a question for the jury on the facts and the court should instruct the jury as above indicated."

In Southern Express Co. v. State, 188 Ala. 454, 485 (66 So. 115), it was said:

"In our opinion, however, the court should have granted the defendant's motion to dissolve the preliminary writ of injunction. If, in good faith, and after proper investigation, a common carrier of interstate commerce delivers liquor to a consignee without any knowledge on its part that such liquors are intended by the consignee for illegal use, then such common carrier cannot, we think, be held to have violated any law of this State."

And in Wells Fargo Co. Express v. State, 130 Ark. 210, 215 (197 S.W. 13), Justice Hart, speaking for the court, said:

"Common carriers are required to obey the law in like manner as other people are required to obey it. Its agents are required to exercise the same judgment as a reasonably prudent man would be required to exercise in the conduct of his own business. In short, when alcohol is shipped from a point out of this State to a point in the State and delivered by a common carrier to a person in this State, the duty devolves upon the carrier to use reasonable care to learn for what purpose it is to be used, and it can only deliver the alcohol when in the exercise of such reasonable care it is convinced that the alcohol is to be used for strictly medicinal or mechanical purposes. As stated in Adams Express Co. v. Commonwealth,160 Ky. 66 (169 S.W. 603), if the express company acts upon reasonable grounds in good faith after such investigation as ordinary care requires, and is misled, it is not liable; otherwise, it is liable."

In State v. Goss, 59 Vt. 266 (9 A. 829, 59 Am. Rep. 706), the defendant, agent of an express company, was charged with illegal sales of intoxicating liquors. The shipments were sent C. O. D. and he collected the money. He insisted in his defense that he had no knowledge of the contents of the packages, but the trial court held this to be immaterial. There was testimony that at least one of the packages emitted the odor of intoxicating liquor. In reversing the case, it was said:

"Hence, the turning point of this case is whether the respondent had reason to believe or suspect — for it appears that he did not know — that these packages contained what they did. If he did, he is charged with notice of their contents, and is guilty; if he did not, he is not charged with such notice, and is not guilty; and as the evidence tended to show he did, and the court ruled the point immaterial, the case must go back for a new trial."

It will be noted that arrayed against Massachusetts are Alabama, Arkansas, Georgia, Mississippi, Oregon, Washington, Oklahoma, Kentuckey, Vermont, and Virginia. Clearly the majority rule is the one contended for by defendant. Let us see what the textwriters say: Blakemore on Prohibition (2d Ed. 1925), p. 210, contains the following:

"The crime of transporting liquor commonly includes the ingredient of knowledge, and the defendant has a right to have the jury instructed that the defendant must have known that the package contained intoxicating liquor.Parker v. Commonwealth, 135 Va. 625 (115 S.E. 566); State v.Fishback, 122 Wn. 246 (210 P. 375). Still one may be convicted of transporting where he carried a suit case containing liquor although he had no actual knowledge that it contained liquor, if from the circumstances a man of ordinary intelligence would have known this. State v. Twiggs,123 S.C. 47 (101 S.E. 663)."

McFadden on Prohibition (1925) in section 286 says:

"Knowledge. In order to uphold a charge of unlawful transportation, it must be shown that the accused had knowledge that his vehicle was being used unlawfully, or that from the reputation of the person intrusted with the vehicle or other circumstances attending his occupation or employment, the inference would arise that the owner had reason to suspect that his property might be used for unlawful purposes. Also, a party may be convicted of unlawful transportation where he carried a suit case containing liquor, though he had no actual knowledge that it contained liquor, if from the circumstances a man of ordinary intelligence would have known this."

See, also, 33 C. J. p. 583; Underhill's Criminal Evidence (3d Ed.), p. 1009.

I shall call attention to but one Michigan case. Language will be found in some of our cases which might be helpful although not directly in point. But I think the holding of this court in People v. Germaine, 234 Mich. 623, by analogy commits this court to the majority rule. In that case defendant contended that the bottle of which he had possession belonged to his drunken friend, Bannon, and that he threw it into some bushes and that, therefore, his possession was not unlawful. In holding that he was entitled to have such defense go to the jury, a majority of the court held:

"If the liquor belonged to Bannon and defendant had no possession thereof, but when the officers arrived he took the bottle from the car seat for the purpose of destroying it, he was entitled to have such defense and hisgood faith under all the circumstances submitted to the jury upon the question of whether he unlawfully had possession of the liquor."

Upon this record the jury would be justified in finding that defendant here knew, or in the exercise of due diligence should have known, that the cartons contained intoxicating liquor. The testimony clearly made that question one of fact. The trial court by his peremptory instruction withdrew this question of fact from the jury and held defendant's claim on the facts constituted no defense. In my judgment this was error. The question should have been submitted to the jury. Intent and conscious knowledge are not synonymous.

If this conviction is affirmed, then every common carrier and its employees, engineers, firemen, conductors, freight handlers, all who aid in hauling or handling freight are guilty of a felony and violate the prohibition law if intoxicating liquors are hauled or handled by them in the commerce of the State, even though consigned as legitimate articles of commerce, and under such circumstances as to create in the minds of reasonable men using due diligence no suspicion that they are contraband.

I agree with Justice SHARPE on the second question, but in my judgment the case should have gone to the jury under proper instructions and should be here reversed for the error in taking from the jury the question of conscious knowledge.

BIRD, C.J., and SNOW and WIEST, JJ., concurred with FELLOWS, J.