Com. v. Buckley

• Decision Date: 20 June 1968
• Citation: 238 N.E.2d 335,354 Mass. 508
• Parties: COMMONWEALTH v. William G. BUCKLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 335

238 N.E.2d 335

354 Mass. 508

COMMONWEALTH v. William G. BUCKLEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 28, 1968.

Decided June 20, 1968.

Ronald J. Chisholm and Gerard F. Schaefer, Boston, for defendant.

Joseph R. Nolan, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

CUTTER, Justice.

Buckley was indicted for being present where a narcotic drug was illegally kept and deposited. The defendant moved for dismissal of the indictment 'because the charge is unconstitutionally vague and indefinite, and because it inflicts cruel and unusual punishment.' This motion and a motion for a directed verdict of not guilty were denied. The case is before us only on exceptions to these denials.

On December 14, 1966, Lawrence MacNamara, a Boston police officer serving in the narcotics division, went with other officers to an apartment at 35 Revere Street with a search warrant. Jimmy Boyer Banks, 'occupant and tenant of the premises,' opened the door. The other officers 'went * * * into the parlor with' Banks. Officer MacNamara went into the kitchen. Buckley was seated at the kitchen table on which was a brown envelope, found later by analysis to contain marijuana, and a partly smoked, unlighted cigarette, also found later to contain marijuana. Buckley was placed under arrest. He stated that he had 'arrived * * * a few minutes before the police.' Banks and Buckley were the only persons in the apartment.

1. General Laws c. 94, § 213A (as amended through St.1960, c. 204, § 2), is set out in the margin. ¹ Buckley contends that the first provision (following (A) in fn. 1) is unconstitutionally vague.

There has been little discussion of § 213A in our cases. Commonwealth v. Taber, 350 Mass. 186, 213 N.E.2d 868, was a prosecution under the third provision of § 213A concerning conspiracy (see fn. 1 at (C)). There was no occasion to consider the questions now before us. In Commonwealth v. Murphy, 342 Mass. 393, 173 N.E.2d 630, an appeal from a conviction of violation of G.L. c. 271, § 17, as amended, there was passing reference (p. 397, fn. 1) to c. 94, § 213A. At pp. 396--397, at p. 632 of 173 N.E.2d, we said, 'Subject to possible constitutional limitations as to the operation of a statute * * * the Legislature may determine what shall be deemed a 'public welfare offense' punishable notwithstanding innocent intent. * * * But an intention to create such an offence should appear in clear and unambiguous language' (emphasis supplied).

Although § 213A was materially revised by St.1960, c. 204, § 2, the language of the first clause as it appeared in St.1957, c. 660, § 1 (p. 568), was not changed. ² In 1957, however, § 213A authorized merely the arrest without a warrant of a person 'present' where narcotics were. By the 1960 amendment, such presence was made a criminal offence.

The first clause of § 213A, if read literally, imposes strict criminal liability without regard to whether the accused had knowledge or mens rea. The provision cannot be construed as merely stating the circumstances which give rise to a prima facie case sufficient to establish guilt. Compare the statutes discussed in Commonwealth v. Douglas, Mass., 236 N.E.2d 865, ^a and cases cited. We thus first consider whether a literal reading of the section as a 'public welfare' statute, imposing strict liability 'notwithstanding innocent intent,' should be taken as reflecting the legislative purpose.

Statutes, purporting to create criminal offences which may 'impinge upon the public's access to constitutionally protected matter' (see Demetropolos v. Commonwealth, 342 Mass. 658, 661, 175 N.E.2d 259), have been construed to require knowledge by the accused of the facts giving rise to criminality. Such an interpretation is in part, at least, to preserve interests protected under the First Amendment to the Constitution of the United States. See Commonwealth v. Corey, 351 Mass. 331, 332--334, 221 N.E.2d 222. There is some indication that the due process clause of the Fourteenth Amendment may require knowledge in a range of situations not limited to those which have First Amendment aspects. See Lambert v. People of State of California, 355 U.S. 225, 228--230, 78 S.Ct. 240, 2 L.Ed.2d 228 (failure of a person who had previously been convicted of a felony to register as required by a city ordinance, where such person had no knowledge of the ordinance). ³ Generally, however, it has been held that the Legislature may make criminal an act or omission even where the person responsible has no 'blameworthy condition of the mind.' See Commonwealth v. Mixer, 207 Mass. 141, 142--143, 93 N.E. 249; Commonwealth v. Ober, 286 Mass. 25, 30, 189 N.E. 601; Commonwealth v. Lee, 331 Mass. 166, 168, 117 N.E.2d 830; Commonwealth v. Murphy, 342 Mass. 393, 396, 173 N.E.2d 630, Williams, Criminal Law, the General Part (2d ed.), §§ 75--90, esp. at pp. 234--239, 250--254, 255--265; Perkins, Criminal Law, 692--712; Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55; Hart, Aims of the Criminal Law, 23 Law and Contemporary Problems, 401, 422--425. See also Mr. Justice Jackson's discussion of 'public welfare' or 'strict liability' offences in Morissette v. United States, 342 U.S. 246, 250--273, 72 S.Ct. 240, 96 L.Ed. 288. There (at pp. 256--258, at p. 246 of 72 S.Ct.) it is suggested that these are often offences where punishment is by 'penalties commonly * * * relatively small' and where 'conviction does no grave damage to an offender's reputation.' ⁴ For other instances of public welfare offences, see United States v. Balint, 258 U.S. 250, 252--254, 42 S.Ct. 301, 66 L.Ed. 604; United States v. Dotterweich, 320 U.S. 277, 280--281, 64 S.Ct. 134, 88 L.Ed. 48. Cf. Borre, Public Welfare Offenses: A New Approach, 52 J.Crim.Law 418--422.

Section 123A permits the imposition of a severe penalty, as much as five years in prison. It hardly can be regarded as a minor offence. Thus it would take unusually clear legislative language to lead us to the view that knowledge is not required for a conviction under the first clause (fn. 1 at (A)). In view of the Lambert case, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228, any other interpretation would raise serious constitutional doubts. Indeed, in another jurisdiction a closely similar statute has been held invalid. City of Seattle v. Ross, 54 Wash.2d 655, 659--662, 344 P.2d 216. See State v. Birdsell, 235 La. 396, 411--415, 104 So.2d 148. To avoid such possible constitutional doubts (see Commonwealth v. Corey, 351 Mass. 331, 334, 221 N.E.2d 222; see also Worcester County Nat'l. Bank v. Commissioner of Banks, 340 Mass. 695, 701, 166 N.E.2d 551; Opinion of the Justices etc., 341 Mass. 760, 785, 168 N.E.2d 858), we interpret the first clause of § 213A as requiring for a conviction proof that the accused was 'present where (he knew) a narcotic drug * * * (was) illegally kept or deposited.' As in the situation discussed in Commonwealth v. Holiday, 349 Mass. 126, 128, 206 N.E.id 691, 693, however, a 'person's knowledge * * * like his intent, is a N.E.2d 691, 693, however, a 'person's of proof by direct evidence. In that event resort must be had, and frequently is had, to proof by inference from all the facts and circumstances developed at the trial.' See Commonwealth v. Boris, 317 Mass. 309, 315, 58 N.E.2d 8 ('resort frequently must be had to proof by inference').

We recognize that the second clause of § 213A (see fn. 1 at (B)) expressly includes the word 'knowing,' whereas the first clause does not. See Commonwealth v. Raymond, 97 Mass. 567, 569. In view of the seriousness of the penalty which may be imposed under § 213A, we are unwilling to regard the omission from the first clause (of some word having an effect similar to that of 'knowing') as sufficiently indicating the Legislature's 'clear and unambiguous' intention to require no proof of knowledge in a prosecution under the first clause. See the Murphy case, 342 Mass. 393, 397, 173 N.E.2d 630.

Commonwealth v. Smith, 166 Mass. 370, 374--375, 44 N.E. 503 (presence where gaming instruments are found, that is, in a gaming house; St.1895, c. 419), and Commonwealth v. Kane, 173 Mass. 477, 481--482, 53 N.E. 919 (presence where instruments for smoking opium were found; St.1895, c. 194), were mentioned in the Murphy case, 342 Mass. 393, 397, 173 N.E.2d 630. Those cases seem to us to be distinguishable from that before us. In those cases, also, knowledge may have been implied, in part at least, from the character of the particular places involved in those prosecutions.

2. Reading the first clause of § 213 As including a requirement that the accused be present where he knows a narcotic drug is illegally kept or deposited, we think that the words '(w)hoever is present' are not vague. These words, coupled with knowledge, do not import an unlimited area. The words must be given a reasonable interpretation which would permit the knowledge required to be proved. The language reasonably refers to a somewhat restricted space. See Commonwealth v. Kane, 173 Mass. 477, 481--482, ...