Dissenting] — Based upon the interpellations of the jurors and the answers of the court, the defendant took two exceptions which thus appear in the record:
“The defendant excepts to that portion of the charge given to the jury wherein the court instructed the jury that under the circumstances disclosed by the evidence in this, ease, the defendant might be guilty of the crime charged in the indictment even though he had no in*544tention. of committing said crime, in so far as the instructions so state.
“The defendant excepts to that portion of the foregoing charge wherein the court instructed the jury that the defendant might be guilty under the circumstances disclosed by the evidence in this case even though he had no interest therein, merely because he lifted the suit case off the ground and transported it as a porter of the hotel, in so far as the instructions so state.”
That the first exception is without merit is taught by many cases already decided by this court, to the effect that where a defendant is accused of a misdemeanor which is merely malum prohibitum, and not malum in se, it is not requisite to prove a criminal intent: State v. Chastain, 19 Or. 176 (23 Pac. 963); State v. Sterritt, 19 Or. 352 (24 Pac. 523); State v. Gulley, 41 Or. 318 (70 Pac. 385); State v. Brown, 73 Or. 325 (144 Pac. 444); State v. Wilbur, 85 Or. 565 (166 Pac. 51, 167 Pac. 569).
The second exception merits more careful consideration, but must be decided upon the same principles which underlie the precedents already cited, namely, that if in such cases a defendant has committed the act against which the statute was directed, he comes within the ban of the law, irrespective of any element not included in the statutory denunciation of the offense.
As said by Dr. Wharton in Volume 1, Section 113, of the Eleventh Edition of his treatise on Criminal Law:
“The function of imposing indictability on pernicious acts irrespective of intent is one which has been exercised by legislatures, not only frequently but from necessity. It may be indispensable to public safety that storing of gunpowder, or of highly inflammable oils, in exposed localities should be prohibited; and as in such cases the statutes could be easily eluded if a scienter be requisite to conviction, the policy that requires the enactment of the statute requires also that *545the statute should relieve the prosecution from proving a scienter. Sometimes this is done by an express clause in the statute, as where * # it is provided that persons selling spirituous liquors shall be ‘deemed’ common sellers of the same, or that delivery of such liquors shall be proof of sale, or that persons carrying concealed weapons shall be presumed to carry them knowingly. Such provisions are constitutional as concerning matters of process, and are illustrated by statutes prescribing that a person not heard of for a specific period shall be presumed to be dead, and that debts not acknowledged within a specific period shall be presumed to be paid. If this can be done by an express clause, it can be done by implication; and if so, where the legislature imposes a specific penalty on a person doing a particular thing, irrespective of scienter, it will be the duty of the courts to enforce the prohibition. The question is one of policy; and this may be taken into consideration when the legislative meaning is sought. That a man should be convicted of a malicious act without proof of malice, or of a negligent act without proof of negligence, is, of course, an enormity which no legislature could be supposed to direct. But it is otherwise as to certain mischievous acts which it may be a sound policy to prohibit arbitrarily, because they imperil public safety (as, for example, the selling of intoxicating drinks and defective storing of explosive compounds), and because to require scienter to be proved would be to defeat the object of the statutes, since in many cases, and those the most dangerous of the class, it would be out of the power of the prosecution to prove scienter beyond reasonable doubt. The legislature may properly say, ‘In such cases we presume scienter; whoever deals with these dangerous agencies does so at his risk. ’ * * A fortiori is this the case when a statute, on grounds of public policy, makes scienter irrelevant. It is also to be observed that to declare that honest ignorance of fact is a defense would extend the same privilege, in many cases, to honest ignorance of law. Ignorance, for instance, that the state pro*546Mbits by indictment dealing with minors is morally as good a defense, in cases where the party dealt with has apparently reached majority, as is ignorance that snch party is a minor. In bqth cases the defendant is ignorant that he is doing an illegal thing. That in the former case it is conceded that such ignorance is no defense shows that honest belief that an illegal act is legal is no necessary ground for acquittal. We cannot, therefore, lay down the rule that ignorance of inculpatory facts shall always be a defense, without extending the same immunity to ignorance of inculpatory law. And if we cannot so extend this immunity, then we must hold that ignorance does not necessarily acquit when scienter is not an essential of the offense.”
In Halsted v. State, 41 N. J. Law, 560 (32 Am. Rep. 247, 1 Crim. Law Mag. 340), Mr. CMef Justice Beasley exhaustively discusses the principle here involved. He contracts the argument that in all cases of violation of law there must be a guilty mind, with the other contention that in mere statutory misdemeanors made such solely by the enactment, it is enough to prove the act without establishing either scienter or guilty intent. He then proceeds thus:
“Now these two classes of cases, diverging as they do, and seemingly standing apart from each other, may at first view appear to be irreconcilable in point of principle; but, nevertheless, such is not the case. They all rest upon one common ground, and that ground is the legal rules of statutory construction. None of them can legitimately have any other basis. They are not the products of any of the general maxims of civil or natural law. On the contrary, each of this set of cases is, or should have been, the result of the judicial ascertainment of the mind of the legislature in the given instance. In such investigations the dictates of natural justice, such as that a guilty mind is an essential element of crime, cannot be the ground of decision, but are merely ■ circumstances of weight, to have their effect in the effort to discover the *547legislative purpose. As 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, there can be, of necessity, no judicial authority having the power to require, in the enforcement of the law, such knowledge or motive to be shown. In such instances the entire function of the court is to find out the intention of the legislature, and to enforce the law in absolute conformity to such intention.”
An Arkansas enactment made it unlawful for an express company to receive for shipment or export, or carry beyond the state line certain kinds of game, including deer and wild turkey. As portrayed in Wells Fargo & Company Express v. State, 79 Ark. 349 (96 S. W. 189), the company received at a point in Arkansas for shipment to St. Louis, Missouri, what appeared to be three packages of furs, but in fact, as disclosed by a search, they contained a saddle of venison and eight wild turkeys. Discoursing upon the contention of the company that neither it nor its agents or employees had any knowledge that the packages contained game, the court, after citing -authorities, goes on to state the principle thus:
“Without attempting to formulate any rule on the subject, suffice it to say that the statute in question seems to be exactly of the kind where ignorance does not excuse, and where criminal intent is not necessary. Doubtless, such statutes work individual cases of hardship, as the one at bar, where the company was imposed upon; but, unless the Legislature had made the act itself the crime, there would have been no use in passing the law. The ease with which game and fish could be inclosed in packages to deceive the express agents would render a statute against knowingly receiving game or fish an idle form.”
The subject of being present where gaming implements are found was under consideration in Common*548wealth v. Smith, 166 Mass. 370 (44 N. E. 503), concerning which Mr. Justice Holmes, in delivering the unanimous opinion of the court, said:
“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 it 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. It may say that, as people generally do know when they are selling intoxicating liquors, they must discover at their peril whether what they sell will intoxicate. ’ ’
Another case from the same court is Commonwealth v. Mixer, 207 Mass. 141 (93 N. E. 249, 20 Ann. Cas. 1152, 31 L. R. A. (N. S.) 467). We quote this statement from the opinion:
‘ ‘ The defendant, a driver in the employ of a common carrier, had upon his load for transportation in Lynn a sugar barrel, not marked by the seller or consignor as required by Bev. Laws, Chap. 100, Section 49, for packages containing intoxicating liquors. There was nothing about the appearance of the barrel to cause suspicion as to its contents, and the defendant was ignorant of the fact that it contained intoxicating liquor. The Superior Court refused to instruct the jury that, unless the defendant knew that the barrel contained intoxicating liquor, or, from its appearance and all the circumstances, ought reasonably to have been put on inquiry as to its contents, he should be *549acquitted. The question presented is whether this refusal was error.”
After mentioning the precept that in many cases it is necessary to prove a criminal intent, the court, speaking through Mr. Justice Bugg, goes on to say:
“But there are many instances in recent times where the legislature in the exercise of the police power has prohibited under penalty the performance of a specific act. The doing of the inhibited act constitutes the crime, and the moral turpitude or purity of the motive by which it was prompted, and knowledge or ignorance of its criminal character, are immaterial circumstances on the queston of. guilt. The only fact to be determined in these cases is whether the defendant did the act. In the interest of the public the burden is placed upon 'the actor of ascertaining at his peril whether his deed is within the prohibition of any criminal statute.”
This doctrine is supported by a very long list of authorities cited in the opinion, and the action of the trial court in refusing the instruction was approved: See, also, the opinion of Mr. Justice Cooley in People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270). The. analogy is supported in State v. Ross, 55 Or. 450 (104 Pac. 596, 106 Pac. 1022, 42 L. R. A. (N. S.) 601, 613), holding that the act of converting public money to his own use was sufficient to incriminate one without regard to his intent in the matter.
The case of State ex rel. Black v. Southern Express Co. (Ala.), 75 South. 343, cited here by the defendant, has had'our attention. The statute of Alabama on the subject of importing intoxicating liquor into the state prescribed that its containers should hold neither more nor less than one quart. The suit was for injunction to prohibit the defendant, a common carrier, from bringing into the state any intoxicating liquor whatever. The *550court held that inasmuch as the federal statute (U. S. Comp. Stats. 1918, § 10410), condemned “whoever' shall knowingly ship or cause to be shipped from one state' into any other state * * any package of or package containing any spirituous, vinous, malted, fermented or intoxicating liquor of any kind, unless such package be so labeled on the outside cover as to plainly show the name of the consignee, the nature of its contents and the quantity contained therein,” the company was excused from the mere act of importing a package not so marked, but that the injunction should run against its importing even such a package if it contained bottles holding more or less than one quart. The reason given was that the enforcement of such a regulation would impose too great a burden upon the interstate movements of innocent commerce. It is not apparent to the writer why even for this reason the carrier should be excused from transporting an unmarked package, but should be held liable and enjoined from transporting the same package if the bottles within it, secure from observation as they were, should be greater .or less than quart size. The court there recognizes the application of the principles we have extracted from the authorities above cited, and*'hinges its decision on the federal statute already quoted, which contains the element of knowledge, but in summing up the case bases its injunction against the defendant on a circumstance of which it could have no knowledge unless it should open and examine the contents of every unmarked package which came into its possession. The precedent is not deemed controlling in the instant case.
)The policy in laws of this kind is analogous to the principles and practices underlying the laws regulating the customs duties where goods are forfeited for violation of the regulations, irrespective of the knowledge *551or intent of the owners. A sample case of the kind is that of United States v. 58,850 Cigars, 25 Fed. Cas. No. 15,092. In that instance a drunken sea captain had permitted the cigars in question to he smuggled aboard the ship of which he was in charge in a foreign port. The cigars were concealed behind partitions, under floors and the like, all without the knowledge or consent of the owners and entirely against their ordinary practice and behavior. On arrival at its home port, the vessel was libeled at the instance of the revenue officers and it was held on appeal that the concealment of goods which works a forfeiture need not be with the knowledge or consent of the owner or consignee. In summing up, the court said:
“To require the co-operation of the owner in concealing the property to be shown, would leave a wide opening for fraud. No doubt cases of hardship may possibly occur; but they are provided for by the power to remit the forfeiture, lodged with the secretary of the treasury.”
So, in the enforcement of the prohibition law, we must recognize that it is within the power of the legislative branch of the government to make a misdemeanor of the mere possession of the forbidden liquor. That branch of the government has the right to impose upon the individual citizen the responsibility for his own acts, irrespective of his knowledge, and while the result may work hardship in some instances, yet it is not for the courts to read into the statute the element of scienter which is not found there. As a matter of policy doubtless influencing the legislative mind, it is much easier for the individual so to guard his own actions as not to be found in possession of intoxicating liquors within the ban of the statute, than for the state to prove his actual knowledge on the subject, under *552ordinary circumstances. Hence, it was within the province of the lawmakers to omit that element so often found in the definitions of misdemeanors. To say in the face of the enactment before us that it must be shown that the defendant knew he had liquor in his possession would be practically to destroy the efficiency of the statute and make it well-nigh impossible to secure convictions against the mere purveyor of intoxicating liquor, who would, of course, disclaim knowledge of or property in it when detected in possession of it. The imagination can easily conjure up a situation where by trickery and fraud a case might be framed up against an innocent man, by slyly dropping into his pocket a small vial of whisky or concealing it about his automobile, or the like, so that apparently he would be in possession of the same; but the possibility that such a thing might happen is no reason why the judiciary should refuse to enforce the mandate of the law-making branch of the government. The remedy for such possible evils must be found either in the legislative prerogative or in the executive power to pardon. They are not likely to occur often in practice, and the harm arising from such imaginary cases is slight in comparison with the practical destruction of the statute if we construe it as if to write into it in all cases the element of knowledge. /
It remains to determine whether or not the defendant was in possession of the suitcase and its contents by picking it up on the railway platform and putting it on board the hotel bus. A simple illustration should dispose of that question: Suppose that he had no intimation of what was in the suitcase, yet held on to it and kept it in his custody without opening it. No one could rightly deny that he had such possession of it as would sustain an action of replevin by the true owner who *553■would seek to recover the suitcase and the twelve bottles of whisky, conceding for the sake of the argument that the liquor is the subject of property. The defendant in that litigation, as in the present, might deny all of the allegations of the complaint, yet they would be established by proving that the grip and its contents were in his custody.
In Rice v. Frayser (C. C.), 24 Fed. 460, it is said:
“ ‘Possession’ is that condition of fact under which one can exercise his power over a corporeal thing at his pleasure, to the exclusion of all others.”
In State v. Washburn, 11 Iowa, 245, the subject under consideration was the possession of counterfeit coin. The defendant had concealed it in a place unknown to others and at the time of his arrest he was not near the spot where the forbidden stuff was hidden. The court said:
“If the coin was in the power of the prisoner in such a sense that he could and did command its use, the possession was as complete within the meaning of the statute as if it had been actual. ”
People v. Mills, 178 N. Y. 274 (70 N. E. 786, 67 L. R. A. 131), was a case where the defendant was indicted for an attempt to steal some indictments in which his clients were accused of crime. He was convicted, though he only put the documents into his pocket on delivery to him by a detective to trap him. They were held to be in his possession. It was decided in Harrison v. People, 50 N. Y. 718 (10 Am. Rep. 517), that a pickpocket was in possession of a pocketbook, though he took it only part way out of the owner’s pocket when the latter struck off the hand of the thief so that the book dropped back into the pocket. McMahon v. State, 70 Neb. 722 (97 N. W. 1035), declares that game unlawfully killed was in the posses*554sion of one who was in a hunting party, although it was found in a buggy in which he was.not riding and which belonged to another one of the party. The court in Brown v. Volkening, 64 N. Y. 76, said:
“Possession means simply the owning or having a thing’ in one’s own power.”
The circumstances of Campbell v. State, 3 Ala. App. 76 (57 South. 412), were that a foreman with his gang of men on pay-day went to the office of the employing concern to receive their wages. His name was called first, the money due him was counted out. and laid on the counter in his presence by the paymaster. Without taking it into his hand, the foreman turned to sign the pay-roll and while his attention was thus diverted from the money, one of the gang seized it and ran away with it. He was apprehended and brought back to the office, where the paymaster recounted the money, and as against the thief it was held that the money was in the possession of the foreman although he had not touched it when the defendant seized it and carried it away.
In considering the evil at which the statute is aimed, we cannot restrict the term “possess” so as to make it mean absolute ownership. It must be taken to include the wider signification given it by the precedents quoted and to be satisfied with proof of actual custody. Public sentiment crystallized in the form of a constitutional amendment supported by the drastic legislation in question, has substantially outlawed intoxicating liquor, so that the individual handles it at his peril, barring the few statutory exceptions. The legislative power has seen fit to omit the element of knowledge in the matter of possession, and the citizen must see to it that he does not possess the forbidden article. Whatever actual hardship may arise from the enforcement of the law as we find it upon the statute book must be *555obviated or alleviated in the first instance by the pardoning power and later, possibly, by legislative amendment relaxing the rigor of the present statute. Each of these remedies is beyond the power of the judiciary and we can enforce the law only as we find it.
//It is not by the mark to say that, in his capacity as porter, the defendant has no right to inspect the baggage of guests who offer it to him for carriage. On the contrary, as a citizen, subject to the law of the land which is paramount to his obligation as a porter, he has a right to be shown by those who would avail themselves of his assistance that he will not commit crime by taking their goods into his possession. / The same reasoning is applicable to him as to common carriers and, like them, he may decline a service involving a violation of the law.
The record shows that the defendant had the liquor in his actual possession. His knowledge or ignorance of it is not an element of the offense defined by the statute. The Circuit Court was right in disregarding his contention on that point. A decision to the contrary would emasculate the prohibition statutes and open wide the door for frauds upon the law.
The conviction should be affirmed.
Bean and Benson, JJ., concur in this dissenting opinion.