Commonwealth v. Mixer

• Decision Date: 02 December 1910
• Parties: COMMONWEALTH v. MIXER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 141

93 N.E. 249

COMMONWEALTH v. MIXER.

Supreme Judicial Court of Massachusetts, Essex.

December 2, 1910

COUNSEL

Henry C. Attwill, Asst. Dist. Atty., for the Commonwealth.

James W. Sullivan, for defendant.

OPINION

RUGG J.

This complaint, under St. 1906, c. 421, charges the defendant with illegally transporting intoxicating liquor into the city of Lynn, where no licenses of the first five classes for the sale of intoxicating liquor and no permits to transport such liquor into the city had been granted. 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 Rev. Laws, c. 100, § 49 for packages containing intoxicating liquor. 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 acquitted. The question presented is whether this refusal was error. Narrowly stated the inquiry is whether a common carrier or his servant can be convicted of the crime of illegally transporting intoxicating liquor under the statute, when he does not know and has no reaosn to surmise that there is intoxicating liquor in a package delivered for transportation by a seller or consignor who has violated the law by failing to mark such package plainly and legibly with the kind and amount of liquor it contains.

In the prosecution of crimes under the common law apart from statute, it ordinarily is necessary to allege and prove a guilty intent, and as a general principle a crime is not committed if the mind of the person doing the act is innocent. An evil intention and an unlawful action must concur in order to constitute a crime. 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 question 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. There are many illustrations of such exercise of legislative power, as, for instance, the selling of milk below a designated standard (Commonwealth v. Wheeler, 205 Mass. 384, 91 N.E. 415; Commonwealth v. Warren, 160 Mass. 533, 36 N.E. 308); the driving of an unregistered automobile (Feeley v. Melrose, 205 Mass. 329, 334 91 N.E. 306, 27 L. R. A. [N. S.] 1156); being present where gaming implements are found (Commonwealth v. Smith, 166 Mass. 370, 44 N.E. 503); obstructing a highway more than five minutes even through unlawful interference by trespassers (Commonwealth v. New York Central & Hudson River Railroad, 202 Mass. 394, 88 N.E. 764, 23 L. R. A. [N. S.] 350, 132 Am. St. Rep. 507); bigamy and adultery by marriage with one honestly, upon reasonable ground, but mistakenly, supposed to be single (Commonwealth v. Mash, 7 Metc. 474; Commonwealth v. Thompson, 11 Allen, 23, 87 Am. Dec. 685; Commonwealth v. Hayden, 163 Mass. 453, 457, 40 N.E. 846, 28 L. R. A. 318, 47 Am. St. Rep. 468); killing for sale an animal under a designated age (Commonwealth v. Raymond, 97 Mass. 567); being present where implements for smoking opium are found ( Commonwealth v. Kane, 173 Mass. 477, 53 N.E. 919); admitting a minor to a billiard hall (Commonwealth v. Emmons, 98 Mass. 6); selling adulterated milk ( Commonwealth v. Farren, 9 Allen, 489); storing and selling naptha ( Commonwealth v. Packard, 185 Mass. 64, 69 N.E. 1067; Commonwealth v. Wentworth, 118 Mass. 441); sale of imitation butter inadvertently not wrapped as directed by the employer and required by law (Commonwealth v. Gray, 150 Mass. 327, 23 N.E. 47). See, also, Commonwealth v. Lavery, 188 Mass. 13, 73 N.E. 884; Commonwealth v. Murphy, 165 Mass. 42 N.E. 504, 30 L. R. A. 734, 52 Am. St. Rep. 496; Commonwealth v. Connelly, 163 Mass. 539, 40 N.E. 862; Commonwealth v. Shea, 150 Mass. 314, 23 N.E. 47; Commonwealth v. Julius, 143 Mass. 132, 8 N.E. 898; Commonwealth v. Dyer, 128 Mass. 70. This principle has been very frequently applied to statutes respecting intoxicating liquor. In Commonwealth v. Boynton, 2 Allen, 160, it was held that one could be convicted of selling intoxicating liquor even though he had no reason to suppose that it was intoxicating. To the same effect see Commonwealth v. Goodman, 97 Mass. 117; Commonwealth v. Hallett, 103 Mass. 452; Commonwealth v. Uhrig, 138 Mass. 492; Commonwealth v. Savery, 145 Mass. 212, 13 N.E. 611; Commonwealth v. Daly, 148 Mass. 428, 19 N.E. 209; Commonwealth v. O'Kean, 152 Mass. 584, 26 N.E. 97. The sale by a licensed liquor dealer to a minor, though made in good faith and without reason to suspect that the purchaser was below age (Commonwealth v. Stevens, 153 Mass. 421, 26 N.E. 992; Commonwealth v. Finnegan, 124 Mass. 324), or to one honestly but erroneously supposed to be a guest on the Lord's day ( Commonwealth v. Regan, 182 Mass. 22, 64 N.E. 407; Commonwealth v. Joslin, 158 Mass. 482, 497, 33 N.E. 653, 21 L. R. A. 449; Commonwealth v. Barnes, 138 Mass. 511), have all been held crimes under statutes of this nature. This rule prevails generally though not universally throughout the United States. See cases collected in Haynes v. State, 118 Tenn. 709, 105 S.W. 251, 13 L. R. A. (N. S.) 559, 121 Am. St. Rep. 1055, State v. Powell, 141 N.C. 780, 53 S.E. 515, 6 L. R. A. (N. S.) 477, and Harper v. State, 91 Ark. 422, 121 S.W. 737, 25 L. R. A. (N. S.) 669. It was assumed in Commonwealth v. Riley, 196 Mass. 60, 81 N.E. 881, 10 L. R. A. (N. S.) 1122, that the crime created by Rev. Laws, c. 100, § 50, of delivery by a regular expressman of intoxicating liquor without entering it in a book belonged to this class.

It becomes necessary to examine the terms and history of the statute upon which the present complaint is founded, and the antecedent enactments of the Legislature touching the general subject, to determine whether it falls in the same class. The local option license law now prevailing was first enacted by St. 1875, c. 99. It contained no provision respecting the transportation of liquors. By St. 1878, c. 207, the transportation of intoxicating liquors into municipalities where licenses were not granted, with intent to sell or having reasonable cause to believe that they were intended to be sold in violation of law, was forbidden, and whoever willfully violated any provision of the law was subject to punishment. In a respect immaterial to the present inquiry, this statute was amended by St. 1879, c. 282. By the consolidation of pre-existing enactments in Pub. St. 1882, c. 100, § 18, the word 'willfully' was omitted, and has not since appeared in any statute touching the transportation of intoxicating liquor.

St. 1897, c. 271, required plain and legible marking of the packages with the name of the consignee and the keeping of minute records by the common carrier respecting all packages containing intoxicating liquor. These provisions were re-enacted in Rev. Laws, c. 100, §§ 48-52, both inclusive.

By St. 1906, c. 421, the Legislature made still more stringent and detailed provisions respecting the transportation of liquor into or through no-license municipalities. It was enacted by section 1 of this act, under which this complaint is framed, that 'no person or corporation, except a railroad or street railway corporation, shall, for hire or reward, transport spirituous or intoxicating liquors into or in a city or town in which licenses of the first five classes for the sale of intoxicating liquors are not granted, without first being granted a permit so to do * * *'; and by section 4 that 'any person violating the provisions of this act shall be punished by a fine * * * or by imprisonment * * * or by both, * * * and any violation of the laws relative to the transportation of intoxicating liquors, by a person holding a permit, * * * shall render such permit void.' Sections 2 and 3 of this act make provision for the granting of permits for the transportation of liquors in so-called no-license cities and towns.

It is obvious from these successive enactments that the Legislature has been struggling to make it more and more difficult to transport liquor secretly into cities and towns where licenses are not granted. It was said by Hammond, J., in Commonwealth v. Intoxicating Liquors, 172 Mass. 311, at page 315, 52 N. E., at page 389, while discussing the purpose of St. 1897, c. 271: 'The act was manifestly intended to meet some difficulties which had been encountered by the government in the prosecution of common carriers for illegal keeping of intoxicating liquors, and to make it more difficult for the guilty to escape detection when setting up the fraudulent defense that the liquors found in the possession of the carrier were for delivery by him as such to some person. It is only one of the many statutes which indicate that the policy of the commonwealth is to require that the traffic in liquors in this state shall be open, so that every step shall be exposed to the scrutiny of the authorities, and that the violation of the law may be more easily detected.'

The desire of legislative bodies to restrict intemperance by...