I cannot concur in the application made in the majority opinion of section 2094, Revised Laws 1910, to a purely police regulation. Such an application is opposed to the views expressed by the Supreme Court of the Territory in Garver v. Territory,5 Okla. 342, 49 P. 470, wherein it is said:
"A demurrer to the indictment was duly filed, and counsel insist that such demurrer should have been sustained, because the indictment failed to aver that the negligent acts of Garver, which constitute the offense, and which are set out in the indictment, were not done or committed under an ignorance or mistake of fact; and in support of this contention *Page 20 cite the fifth division of section 2, art. 2, p. 424, Statutes of 1893. The section in which this subdivision is found, together with the explanatory provision of the section found at the beginning thereof is as follows: All persons are capable of committing crimes, except those belonging to the following classes. * * *
"`Fifth. Persons who committed the act or made the omission charged under an ignorance or mistake of fact which disproves any criminal intent. But ignorance of the law does not excuse from punishment for its violation.'
"It is contended that the statute applies to the charge contained in the indictment against Garver, and that an omission to negative the exception makes the indictment bad on demurrer; that the statute has a general application to all classes of crimes, and that, if the defendant is guilty, he must come within the excepting clause. * * * As we view this law it is of that class of prohibitive statutes which are designed for the protection of the public, such, for instance, as statutes which prohibit the sale of intoxicating liquors without a license, or to prohibit such sale to minors, or prohibit the sale of adulterated goods, or which prohibit sexual intercourse with a girl under 16 years of age, or keeping a house of ill fame, or bigamy, and other statutes of like character."
Such an application is also in principle opposed to the view expressed by this court in Lightle v. State, 5 Okla. Crim. 259,114 P. 275, wherein it is held:
"Where a defendant sells or unlawfully handles any prohibited liquors in Oklahoma, he does so at his peril, and he cannot escape punishment by proving that he was informed and believed that the sale of such liquor was not prohibited by the laws of Oklahoma."
In the body of the opinion it is said:
"The information in this case is in the language of the statute, and is sufficient. Indeed, counsel for the appellant did not seriously contest that proposition in oral argument before the court, but claimed that the court erred in refusing *Page 21 to give the following instruction which was requested by the defendant: `Gentlemen of the jury, you are further instructed that if you find from the evidence beyond a reasonable doubt that the defendant was misled in the purchase of the beverage he was selling, and that he honestly believed that the beverage contained the less than one-half of 1 per cent. of alcohol, and that defendant did think in good faith, and believed, that it contained less than one-half of 1 per cent., then and in that event you should acquit.'
"The contention of counsel for appellant was that the intent with which an act is done is always material, and that no act can constitute a crime unless it is performed with a criminal intent. The illustration was offered in argument that if A. takes possession of a horse honestly believing it to be his own property, and it afterwards turns out that he was mistaken, and that the horse really belonged to B., that A.'s good faith in taking the horse on a mistaken claim of ownership would be a complete defense to a charge of larceny. This would be true. Why? Because the evil intention with which property is taken is a necessary constituent element to the crime of larceny; but this illustration would have no application to a case coming under what is known as police regulations, which makes it criminal to do a certain act irrespective of the intention with which such act is done. Joyce on Intoxicating Liquors, p. 722 § 680, states the law as follows: `Where by statute an act is made an offense under the liquor laws without regard to the intent with which it is done, evidence of an intent is not material.'
"Black on Intoxicating Liquors, p. 489, § 418, is as follows: `Where a statute commands that an act be done or omitted which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute will not excuse its violation. There is nothing anomalous in this rule. In a great variety of cases of statutory offenses, more especially such as have to do with matters relating to police regulation, the laws impose criminal penalties, irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.' *Page 22
"See, also, State v. Hartfiel, 24 Wis. 61; People v. Roby,52 Mich. 577, 18 N.W. 365, 50 Am. Rep. 270; McCutcheon v. People,69 Ill. 601; State v. Kinkead, 57 Conn. 173, 17 A. 855.
"In Halstead v. State, 41 N.J. Law, 552, 32 Am. Rep. 247, the court said: `There is an undoubted competency in the lawmaker to declare an act criminal, irrespective of the knowledge or motive of the doer of such act.'
"In Regina v. Tolson, 16 Cox's Criminal Cases, 629, the English court said: `Although prima facie and as a general rule there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not.'
"Further citation of authorities is unnecessary. Our statute makes it a crime to sell, or to have possession for the purpose of selling the same, any spirituous, vinous, fermented, or malt liquors, or any imitation or substitute therefor, without regard to the intention with which such sale is made. If we were to sustain the contention of appellant, we would not only be going contrary to all of the authorities on the subject of police regulations, but we would place it in the power of any man who so desired to set the prohibitory liquor law of Oklahoma at defiance. He could simply say, `I did not know or I had been misinformed as to a matter of fact,' and this would grant him perfect immunity from punishment. Every man is bound to take knowledge of the law, and, if he undertakes to sell prohibited liquor in Oklahoma, he does so at his peril; and any guaranty given to him by any brewing company that the liquor which he sells is not prohibited by the laws of Oklahoma is not worth the paper it is written upon. The fact that appellant took a guaranty shows that he knew he was playing with fire. Now that he has been burned, he has no one but himself to blame. His guaranty is worthless, for no guaranty which involves a violation of law is valid."
It is also opposed in principle to the views expressed by the majority of the appellate courts of the United States, of *Page 23 which the case of Haynes v. State, 118 Tenn. 709, 105 S.W. 251, 13 L.R.A. (N.S.) 559, 121 Am. St. Rep. 1055, 12 Ann. Cas. 470, is an example, and so aptly states the reasons for not applying the principle, ignorantia facti excusat, to statutes of this kind, and in that connection it is said:
"The second error assigned is to the exclusion by the trial judge of the testimony of Ode Smith, a salesman for the Dyersburg Wholesale Company, who sold the cider to plaintiff in error. The following is the excluded testimony. `When I sold this cider to W.G. Haynes, I represented and guaranteed that it contained no alcohol and would not intoxicate.' He further testified, which was excluded, that he sold the cider to the general trade; had eight or ten customers in Lauderdale county who buy the cider; that he never knew or heard of any complaint by any customer handling this cider, except in this case.
"The following is our legislation on the subject (Shannon's Code, § 991): `The right to sell spirituous, vinous, or fermented liquors is a taxable privilege in the sense of the twenty-eighth section of the second article of the Constitution.' Shannon's Code, § 6795: `It shall not be lawful for any person to sell or tipple any intoxicating liquors, including wine, ale and beer, as a beverage, within 4 miles of any schoolhouse,' etc. Acts 1899, p. 309, c. 161, § 1: `That any person or persons selling, or aiding in selling in any way whatever, intoxicating liquors, without a license required by law, shall be guilty of a misdemeanor,' etc.
"The court charged the jury on the subject as follows: `What is meant by intoxicating liquors is anything that will intoxicate, and it does not make any difference by what name it is called. If Mr. Haynes sold to Luther Vaughan the stuff of any kind that intoxicated him, or that was intoxicating, you should convict.'
"Defendant disclaims knowledge of the intoxicating character of the cider. His counsel urges that it is a fundamental principle of criminal law that there must be a criminal intent of the mind, coupled with the act, in order to constitute a *Page 24 crime. He cites the case of Farrell v. State, 32 Ohio St. 456, 30 Am. Rep. 614, decided by the Supreme Court of Ohio. In that case the defendant had been selling bitters, and was indicted for selling intoxicating liquors. The court says: `In such case the maxim of the criminal law, "Ignorantia facti excusat," applies to his case. The excusing principle of this maxim applies with great force where the business is recognized as lawful, and a transaction in its prosecution only becomes criminal when it is carried on with a purpose to violate the law. To give this maxim practical effect in a proper case is but an assertion of natural justice, for the reason that to render an act criminal the intention with which it is done must be so — the will must concur with the act. To make a transaction criminal, there must be both will and act entering into the transaction.'
"The opinion in that case was by a divided court; and, even had it been otherwise, it is not sound in principle, and is contrary to the weight of authority in this and other states. It is the sale of intoxicating liquors without license which the statute prohibits, and it is unlawful to sell intoxicating liquor of any character without license. This being so, the seller must find out at his peril whether the liquor he proposes to sell is intoxicating or not. Guilty knowledge is not by the statute made an ingredient of the offense.
"Quite a number of authorities might be cited in support of this. In the case of State v. Hartfiel, 24 Wis. 60, it is held that the sale of intoxicating liquors to a minor is an offense under the statute, though the vendor did not know that the purchaser was a minor. The court in that case says: `The words "knowingly" or "willfully," or other words of equivalent import, are omitted from the statute, and the offense is made to consist solely in the fact of a sale of intoxicating liquors or drinks to a minor.'
"Numerous authorities could be cited to the effect that where a statute commands that an act be done or omitted, which in the absence of such a statute might have been done or omitted without culpability, ignorance of the * * * * statute will not excuse violation. 3 Greenleaf on Ev. § 21; *Page 25 Barnes v. State, 19 Conn. 398; Com. v. Mash, 7 Metc. (Mass.) 472; Com. v. Boynton, 2 Allen (Mass.) 160; Merrick v. Plumley,99 Mass. 567.
"In Ulrich v. Com., 6 Bush 400, it is said: `It is as incumbent on the vendor of liquor to know that his customer labors under no disability as it is for him to know the law, and his ignorance of neither will excuse him.'
"In the case of Com. v. Boynton, * * * cited supra, it is said: `The court are of the opinion that the sale of intoxicating liquors, in violation of the statute prohibition, is not one of those cases in which it is necessary to allege or prove that the person charged with the offense knew the illegal character of his act, or in which a want of such knowledge would avail him in defense. If the defendant purposely sold the liquor, which was in fact intoxicating, he was bound at his peril to ascertain the nature of the article which he sold. Where the act is expressly prohibited, without reference to the intent or purpose, and the party committing it was under no obligation to act in the premises unless he knew that he could do so lawfully, if he violates the law, he incurs the penalty. The salutary rule that every man is conclusively presumed to know the law is sometimes productive of hardship in particular cases; and the hardship is no greater where the law imposes the duty to ascertain the fact.'
"It is said in 1 Wharton, Cr. Law, § 88: `It is no defense (for instance) to an indictment for keeping or selling adulterated or intoxicating liquors, that the defendant did not believe them to be intoxicating or adulterated. So, on an indictment for selling adulterated milk, the defendant is not protected by ignorance of the adulteration, or even by belief that the milk was pure; and the same rule applies to indictments for selling other deleterious drinks. In several states, selling intoxicating liquors to minors is indictable by statute, and in such cases also arises the question whether the defendant knew that the vendee was a minor. Here, again, we have the rule before us applied; it having been repeatedly held that, in cases in which knowledge is not part of the statutory offense, ignorance in this respect, coupled with an honest *Page 26 belief that the vendee was of full age, is not a defense. And the same rule applies to all cases of dealing illegally with minors. It is also no defense to an indictment for selling to persons of intemperate habits that the defendant did not know that the vendee was of intemperate habits; though it is otherwise when the statute makes the offense to be selling to persons of known intemperate habits, in which case knowledge is an ingredient of the prosecutor's case.'
"In 2 Wharton, Cr. Law, § 1507, after discussing the same question, it is said: `But to such defense the answer has been already given that when a specific act is made by the law indictable, irrespective of the defendant's motive or intent, his belief that he was right in what he did, based on a mistake of fact, is no defense. Eminently is this the case with regard to intoxicating drinks.'
"In 17 Encyc. Pl. Pr. p. 384, it is said: `In all prosecutions for violations of the liquor laws, the defendant's ignorance of the intoxicating properties of the liquors sold or kept for sale constitutes no defense. He is bound at his peril to know whether the liquors are intoxicating.'
"In Atkins v. State, 95 Tenn. 474, 32 S.W. 391, it is held that one believing that he has a lawful right to operate a gambling contrivance is no defense for violation of the laws against gaming.
"In Moore v. State, 96 Tenn. 544, 35 S.W. 556, the trial judge charged the jury that the statute against the sale of intoxicating liquors was intended to and did prohibit the sale as a beverage of wine, ale, and beer, and also all other liquors which were intoxicating whether called beer, wine, whisky, ale, cider, hop tonic, or whatever name they be known by, and that defendant could not lawfully sell hop tonic or cider within 4 miles of a schoolhouse where a school is kept, if such hop tonic or cider was intoxicating, and would make men drunk, and was sold as a beverage, and was not in an incorporated town.'
"`This,' says the court, through Coldwell, J., `is a sound interpretation of the law applicable to the case before the court — a construction manifestly in accord with the contemplation of the Legislature.' *Page 27
"So it can make no difference under what guaranty plaintiff in error purchased the cider. If he sells it, he must know at his peril whether it is intoxicating or not; and his belief that it was not, however honest, is no excuse."
The majority holding is in my opinion opposed to the purpose and intention of the people in adopting the constitutional provision. It is also opposed to the intention of the Legislature in enacting laws to make effective such constitutional provision.
Further, it permits ignorance of the kind of cider which may be lawfully sold under the provisions of section 3606, Revised Laws 1910, to be interposed as a defense to the possession with intent to sell of intoxicating apple cider. A consideration of the provisions of section 3606, supra, clearly indicates that it was not the intention of the Legislature to make lawful the sale of hard or intoxicating apple cider, as the Constitution specifically prohibited the sale of intoxicating liquors of any kind. Therefore, in my opinion, the result of the conclusion reached in the majority opinion is to permit ignorance of the law — that is, ignorance of the kind of apple cider that may be lawfully sold — to be pleaded under the guise of mistake of fact against a prosecution for the unlawful possession of apple cider of a kind which it is unlawful to sell either under the constitutional or statutory provisions.
If the people and the Legislature, as a police regulation, intended specifically to prohibit the manufacture, sale, barter, and giving away of intoxicating liquors, or the possession of the same with intent to sell, et cetera, irrespective of the knowledge and intent with which such acts are done, a mistake of fact as to the intoxicating quality of the liquor sold or possessed on the part of the defendant would be ignorance of what the law really is. Therefore, the courts have given the construction contended for by me in applying the well-known *Page 28 principle, ignorantia facti excusat, to this class of legislation; because to give force to such maxim as against a plain prohibitory statute would, in effect, destroy the prohibition desired, and permit ignorance of the law, under guise of ignorance of the fact, to be a defense thereto.
Succinctly stated, therefore, it is my opinion that the constitutional provision relative to intoxicating liquor, and the statutory enactments in furtherance thereof, are police regulations enacted while section 2094 was in existence; that section 2094 is but the embodiment of a well-known common-law principle; that the general construction and great weight of authority is that such a principle has no application to police regulations, as held in Lightle v. State, supra; and that for such reason the question of defendant's knowledge of whether or not the liquor possessed by him was intoxicating is immaterial, and forms no defense to a prosecution either under the constitutional or statutory provisions.
I concur with the view expressed by the majority that, in the case of cider, it was necessary to allege and prove its intoxicating quality, or that it was a fermented beverage, such an issue being for the jury under proper instructions.