DISSENTING OPINION
Achor, J.Appellee was charged in the State’s amended affidavit in six counts of possession and offering for sale certain allegedly obscene magazines under the terms of §10-2803, Burns’ 1956 Repl. (1960 Supp.) [being Acts 1957, ch. 133, §1, p. 241.] The relevant parts of this statute are as follows:
“Whoever sells ... or offers to sell ... or in any manner exhibits or has in his possession, with or without intent to sell, . . . lewd, indecent or lascivious book, pamphlet, paper, drawing, lithograph, engraving, picture, daguerreotype, photograph, stereoscopic picture, model, cast, instrument, or article of indecent or immoral use, . . . shall be *280fined not less than twenty dollars [$20] nor more than one thousand dollars [$1,000], to which may be added imprisonment for not less than twenty [20] days nor more than one year; . . .”
As the case is presented to this court, both parties agree that the sole question to be decided upon this appeal is whether the law, above quoted, violates the freedom of speech and the freedom of press guarantees of the Indiana Constitution, Art. 1, Sec. 9 and the United States Constitution, Amend. 1. The question is presented solely upon the issue as to whether or not the statute above quoted eliminates altogether the element of scienter or knowledge from the offense. Therefore, a determination of this case rests solely upon this limited issue.
Appellee asserts that the recent case of Smith v. California (1959), 361 U. S. 147, 152, 154, is controlling of the issue here presented. In that case the United States Supreme Court held that the California ordinance which was construed by the state court as imposing strict liability for the possession or sale of obscene material was unconstitutional because it imposed an unreasonable burden on free speech as guaranteed by the Fourteenth Amendment of the Constitution of the United States.
The legal basis upon which the decision in the Smith case is made to rest was stated by Justice Brennan, as follows:
“These principles guide us to our decision here. We have held that obscene speech and writings are not protected by the constitutional guarantees of freedom of speech and the press. Roth v. United States, 354 U. S. 476, 1 L. ed. 2d 1498, 77 S. Ct. 1304. The ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller if in fact there is to be found in his shop an ob*281scene book. But our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance’s strict liability feature would tend seriously to have that effect, by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold. The appellee and the court below analogize this strict liability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, . . . (Our italics.)
“We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity needed be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be. Doubtless any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene, but we consider today only one which goes to the extent of eliminating all mental elements from the crime.” (Our italics.)
Thus the issue in this case is whether the Indiana statute [§10-2803] must be construed, as was the California ordinance, to eliminate all mental elements from the crime. In other words, does the statute deny the accused a reasonable opportunity of establishing a defense, excuse, or justification for the prohibited act? If such opportunity is denied the statute must be void for the reasons stated in the Smith case. However, if such opportunity is afforded the statute does not fall within the prohibition of the decision of the United States Supreme Court above cited.
*282In determining this question, we are guided by certain well established propositions of law and rules of statutory construction.
One: The United States Supreme Court, in deciding the Smith case was bound by the construction given the ordinance by the California courts for it is fundamental that the United States Supreme Court is bound by the construction of a state statute adopted by the state court of last resort, and it is then the duty of the United States Supreme Court to determine whether the act, as construed and applied, is repugnant to the restrictions of the federal constitution. Ward & Gow v. Krinsky (1921), 259 U. S. 503, 42 Sup. Ct. 529, 66 L. Ed. 1033. In other words, state courts are the exclusive judges of the construction placed upon their own law. Federal courts sitting in diversity cases look to the interpretations of the state courts in applying the state law to a particular case, rather than state courts looking to federal courts. This is not merely a matter of comity or respect for the state courts, but federal courts are bound to do so since the United States Supreme Court’s holding in Erie R. Co. v. Thompkins (1938), 304 U. S. 64, 58 Sup. Ct. 817, 82 L. Ed. 1188. The only concern of the United States Supreme Court is to insure that the state court’s interpretation does not run counter to the United States Constitution. The United States Supreme Court recently reiterated this basic principle in Speiser v. Randall (1958), 357 U. S. 513, 523, n. 7, 2 L. Ed. 2d 1460, 1471, n. 7, 78 Sup. Ct. 1332, 1340, n. 7, when they stated:
"... A more fundamental objection to the suggestion, of course, is that it does violence to the basic constitutional principle that the construction of state laws is the exclusive responsibility of the state courts.” (Our italics.)
*283In the Smith case an ordinance of the City of Los Angeles prohibiting the possession of obscene materials was construed by the California courts as eliminating scienter. The United States Supreme Court adopted this construction, and at page 149 noted that such construction was necessary in order for the California courts to uphold the ordinance as permissible supplementary municipal legislation.
Two: Whenever this court is called upon to judge the constitutionality of a statute, the court will adopt an interpretation favoring constitutionality, if reasonably possible within the wording and meaning of the statute. In all instances where a court exercises the power to invalidate a statute, the conflict of the statute with the constitution must be irreconcilable. We should be extremely reluctant to strike down legislative enactments, especially where there has been long acquiescence (as is the case with this statute) and an unconstitutional intention should not be attributed to the legislature, if reasonably avoidable. It is our duty to avoid a construction of the statute which would render it unconstitutional if that result can be avoided. 5 I. L. E. Constitutional Law, §38 (1958) ; 26 I. L. E., Statutes, §175 (1900).
Three: There is nothing within the statute with which we are here concerned [§10-2803] to keep it from falling within the general rule that where knowledge or intent is not specifically made an element of the offense and it is proved that the accused committed the unlawful act charged, it will be presumed that the act was done with a criminal knowledge or intent. The presumption is rebuttable, the burden or rebuttal being on the accused. 22 C. J. S. Criminal Law, §34 (1961). In such instances lack of knowledge or criminal intent is available as an element of defense, the burden, *284however, being on the defendant to go forward with such evidence. There is an abundance of authority in the decisions of this court supported by the United States Supreme Court for such a holding.1 Illustrative is the case of State v. Bridgewater (1908), 171 Ind. 1, 8, 85 N. E. 715, which involved a statute which made the visitation of a gambling house a crime. We quote at length from that case as it bears light on our reasoning:
“In case a statute, in defining a public offense, makes knowledge an essential element thereof, then the State, in a prosecution thereunder, must aver and prove such knowledge. Of course if the defendant in this case innocently visited the gambling-house in controversy, without having any knowledge or notice, either actual or constructive, of its character, then he would not, within the meaning or spirit of the law, be guilty of the offense with which he is charged, and would have the right, under a plea of not guilty, to set up such facts as a defense to the prosecution. It will be observed that the statute, in positive terms, declares a visit by any person to a gambling-house to be a penal offense, and as any such visit, prima facie or apparently, is a violation of the law, a legitimate excuse for making it must be shown by *285the defendant as a defense to the prosecution. The state in its pleading is not required to anticipate or negative any defense which defendant may have. This rule is supported by the following authorities : . . . [This case here cites about 15 cases.] [Our italics.]
“In Payne v. State, supra, this court, by Elliott, J. said: ‘The facts stated in the indictment make a case within the statute; and if there are any facts constituting a defense, the accused must show them. . . . Excuses and justifications must come in by way of defense; there is no such presumption of their existence as requires the State to allege that they do not exist.’ ”
For the reasons above stated, the statute in question, supra, can be construed as not imposing strict liability upon the accused for his act, but merely as creating a presumption of guilt if the act prohibited is proven; which presumption may, however, be dispelled upon proof of lack of knowledge or intent in defense, excuse or justification of the act. As stated by the United States Supreme Court in the case of Speiser v. Randall supra, 357 U. S. 513, 524:
“. . . Of course, the burden of going forward with the evidence at some stages of a criminal trial may be placed on the defendant, but only after the State has ‘proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, . . .’ ”
So construed, the application of §10-2803 is consistent with other similar statutes which have not been construed as imposing strict liability but have placed upon the defendant the burden of providing an excuse or explanation for his act. This construction of the law would serve to accomplish the obviously intended purpose of its enactment, which is to prohibit the pandering of “sick sex” materials which are designed to stimulate illicit sexual desires and evil designs and *286passions of others; and by so construing the act, it will withstand the test of constitutionality as herein considered.
However, in support of its argument that §10-2803 is unconstitutional on the ground that it imposes strict criminal liability for the offense, appellee discusses the history of §§10-2803 and 10-2804, and the case of Thomas v. State (1885), 103 Ind. 419, 433, 434, which contained some dicta to the effect that knowledge was a necessary element of the latter offense [§10-2804]. Appellee cites the fact that originally neither §§10-2803, which deals with the possession and sale of obscene materials, nor §10-2804, which deals with the mailing of such materials, made knowledge or scienter a specific element of the respective offenses. Appellee further cites the fact that after the decision in the Thomas case, §10-2803 was re-enacted without change, whereas §10-2804 was amended by the addition of the word “knowingly.” On the basis of this action, appellee asserts that there is “a clear and unequivocal intention of the legislature to impose strict liability in §10-2803 without any element of scienter or knowledge on the part of the person charged.”
However, the conclusion drawn by appellee as to the decision in the Thomas case, and the subsequent legislation is not necessary. In the Thomas case, the charge was “that appellant knowingly, etc., placed a lewd and obscene letter in the post office.” (Our italics.) Consistent with the form of the charge, this court, in discussing the statute, assumed that knowledge was a necessary element of the offense and that the burden of proving such knowledge was upon the State.2
*287Therefore, the legislature’s re-enactment of §10-2803 verbatim, and the amendment of §10-2804, by the addition of the word “knowingly,” can reasonably be construed as conveying a legislative intention that the legislature adopted the construction of §10-2804, as considered in the Thomas case, but that the legislature intended that the generally accepted rule should continue to apply as to §10-2803, as hereinbefore discussed; specifically, that upon proof of the facts enumerated in §10-2803, criminal knowledge will be presumed, but that lack of such criminal knowledge or intent, as an element of the offense, is available to the defendant as a defense.
I am aware that study needs to be given the law in question because of other possible infirmaties which are not considered in this case. However, in my opinion the law can and should be construed as constitutional, as related to the single issue here presented.
. Under the 1925 intoxicating liquor act, the legislature made it an offense, “. . . for any person to purchase, receive, manufacture, transport, ship, possess, sell, barter, exchange, give away, furnish, or otherwise handle, or dispose of any intoxicating liquor, except as authorized by this act. . . .” (Acts 1925, ch. 48, p. 144, §4.)
The word “knowingly,” or words similar thereto, are omitted. However, in Molnar v. State (1931), 202 Ind. 669, 673, 177 N. E. 452, this court held that this statute merely raised a presumption, if one of the specific acts enumerated in the statute be proven. The court stated: “Appellant has failed to indicate the provision in our state Constitution which he construes as a ‘due process of law’ clause, or any other provision inhibiting the Legislature from passing the prima facie evidence phrase challenged by him. While the Legislature may declare proof of a fact prima facie evidence of the existence of another fact, yet the probative force of the latter fact would have no weight when rebutted by admissible evidence. Bailey v. State of Alabama (1911), 219 U. S. 219, 234, 31 Sup. Ct. 145, 55 L. Ed. 191.”
. The issue actually decided in Thomas v. State (1885), 103 Ind. 419, 434, was that, “. . . If, . . . guilty knowledge is an *287ingredient of the offence, . . it was proper to admit in evidence other similar letters, written by the accused to the prosecuting witness, in proof of knowledge as to the letter specifically described in the charge.