Commonwealth v. Corbett

• Decision Date: 17 September 1940
• Citation: 307 Mass. 7,29 N.E.2d 151
• Parties: COMMONWEALTH v. LEWIS CORBETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 7

29 N.E.2d 151

COMMONWEALTH v. LEWIS CORBETT.

Supreme Judicial Court of Massachusetts, Suffolk.

September 17, 1940

April 1, 1940.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & RONAN, JJ.

Contraceptive.

No violation of G L. (Ter. Ed.) c. 272, Section 21, was shown by a sale of an article, capable of use and in some instances used for the prevention of conception but also capable of use and in some instances used for the prevention of the transmission of disease, without proof that the sale in question was made with knowledge that the article was intended to be used for prevention of conception. DONAHUE, J., dissenting.

COMPLAINT, received and sworn to in the Municipal Court of the City of Boston on January 8, 1940.

On appeal to the Superior Court, the defendant was found guilty by Williams J., who reported the case to this court.

S. Silverman, (I.

Gordon with him,) for the defendant.

J. T. Cassidy Assistant District Attorney, for the Commonwealth.

LUMMUS, J. The defendant, a registered pharmacist, was convicted by a judge of the Superior Court, sitting without jury, upon a complaint charging that the defendant sold to one Stilphen "certain articles for the prevention of conception to wit: condoms." The complaint was brought under G. L (Ter. Ed.) c. 272, Section 21, which has remained in substantially the same form since its original enactment as St. 1879, c. 159, Section 1. By that section, "Whoever sells, lends, gives away, exhibits, or offers to sell, lend or give away an instrument or other article intended to be used for self-abuse, or any drug, medicine, instrument or article whatever for the prevention of conception or for causing unlawful abortion . . . ," is guilty of felony. The judge denied the request of the defendant for a ruling that upon all the evidence he could not be found guilty, and reported the case.

The present case requires an interpretation of that section of the statutes. The public policy of the Commonwealth in the creation of crimes is not for this court to determine, but for the Legislature. Our function is merely that of discovering the meaning of the words that the Legislature has used, bearing in mind that under the American system of law a citizen is not to be punished criminally unless his deed falls plainly within the words of the statutory prohibition, construed naturally. His deed is not to be declared a crime upon ambiguous words or by a strained construction. Coolidge v. Choate, 11 Met. 79, 82. Commonwealth v. Pentz, 247 Mass. 500 . Libby v. New York, New Haven & Hartford Railroad, 273 Mass. 522 , 525-526. Connally v. General Construction Co. 269 U.S. 385. United States v. Resnick, 299 U.S. 207. People v. Shakun, 251 N.Y. 107, 113, 114. People v. Wallace & Co. 282 N.Y. 417.

It is clear that the public policy of the Commonwealth, as declared by the Legislature, is offended by the sale of articles intended to prevent conception. In Commonwealth v. Gardner, 300 Mass. 372 , this court refused to read into the statutory prohibition in question any exception permitting the prescription in good faith by physicians, in accordance with generally accepted medical practice (see United States v. One Package, 13 Fed. Sup. 334, 86 Fed. [2d] 737), of contraceptives for use by married women, not pregnant, whose physical condition makes pregnancy and childbirth unusually dangerous to their health and even to their lives. The statutory section in question was held to provide "absolute and unconditional prohibition against the sale, gift, or loan of contraceptive drugs, medicines, or articles for that end." (Pages 375-376.) See also State v. Nelson, 126 Conn. 412.

But it does not appear to be any part of the public policy of the Commonwealth, as declared by the Legislature, to permit venereal disease to spread unchecked even among those who indulge in illicit sexual intercourse. It is now recognized that venereal disease cannot be confined to the guilty, but may afflict innocent wives or husbands, innocent children in whom it is congenital, and innocent victims of contact with diseased persons or the germs of disease apart from sexual intercourse. Statutes show that the policy of the Commonwealth is to endeavor to check the spread of venereal disease. G. L. (Ter. Ed.) c. 111, Sections 112, 117-121; c. 112, Section 12. St. 1933, c. 44. St. 1935, c. 155. St. 1936, c. 115. St. 1937, c. 391. St. 1938, c. 265, Sections 14-16. St. 1939, c. 407.

The difficulty in the present case results from the fact that the articles sold by the defendant are not exclusively either "for" the prevention of conception or "for" the prevention of disease. The Commonwealth, acting by the district attorney, and the defendant, have agreed as follows: "Condoms are used in some instances for the purpose of preventing the transmission of venereal disease, and in some instances for the purpose of preventing conception. The condom is medically recognized and regarded as a venereal disease prophylactic." The package sold was marked "Sold for prevention of disease." The buyer was a police officer, who bought the articles to hold as evidence, and not to use for any other purpose. The defendant did not know to what use the buyer intended to put them. There was no evidence that the sale was made with a view to use for any unlawful purpose.

The Commonwealth contends that since articles such as were sold are capable of use for an unlawful purpose and in some instances are used for that purpose, the fact that they are equally capable of use and in some instances are used for a lawful purpose should be disregarded, and the sale should be condemned as a sale of articles "for" the prevention of conception.

On the contrary, the defendant contends that the word "for" refers to the intended purpose in the mind of the seller (Weinstein v. United States, 293 F. 388; Davis v. United States, 62 Fed. [2d] 473, 475), and that the articles themselves, being capable of a lawful use as well as an unlawful one, cannot be declared articles "for" the unlawful use without proof that in the particular instance they were sold with a view to unlawful use (Graves v. Johnson, 156 Mass. 211; Youngs Rubber Corp. Inc. v. C. I. Lee

& Co. Inc. 45 Fed. [2d] 103, 108), or at least that the seller knew that an unlawful use was intended by the buyer. In the absence of proof that use for an unlawful purpose was intended, the defendant contends that he cannot be convicted, any more than under a statute which might forbid the sale of articles for gaming, or for the taking of human life, the seller of a pack of cards, a rifle, a razor, or a quantity of potassium cyanide could be held guilty as matter of law. The defendant further suggests that if mere capacity to prevent conception, and use in some instances for that purpose, are enough, the sale of many familiar and almost necessary antiseptic, hygienic and sterilizing articles will fall within the prohibition of the law. See State v. Arnold, 217 Wis. 340, 344, 345-346.

Our task is to discover which of these conflicting constructions conforms to the real meaning of the words used by the Legislature in expressing its intent.

There are indications in the statute of 1879 and its successors that the construction contended for by the defendant is substantially correct. In the first place, no reason appears for requiring that an instrument or other article be shown to have been "intended to be used for self-abuse," and then being satisfied with mere capacity for use and actual use in some instances when dealing with "any drug, medicine, instrument or article" capable of preventing conception or of causing unlawful abortion. The insertion of the words "drug" and "medicine" made necessary some change in grammatical construction, and precluded, after the words "for self-abuse," the simple adding of the words or for the prevention of conception or for causing unlawful abortion, and the applying of the phrase "intended to be used" to all three purposes. There is reason for believing, however, that the words "intended to be used" were in effect to be understood before the word "for" in the two instances in which they are omitted in the text. They may have been omitted either because to repeat them would have made the wording cumbrous, or because the word "for" by itself conveys the same idea of intent or purpose.

The original statute (St. 1879, c. 159) in Section 1 made it a crime to sell, etc., any "article whatever for the prevention of conception." In substance that section exists unchanged in the present law. Section 2 provided for search, seizure, forfeiture and destruction, as to "all the articles . . . described in section one." The same "articles" were meant in both sections. When Section 2 was incorporated in Pub. Sts. (1882) c. 212, Section 2, Fifth, (now G. L. [Ter. Ed.] c. 276, Section 1, Ninth), there was no intention to change the law. Resolves, 1880, c. 46. Wright v. Dressel, 140 Mass. 147 , 149. But the words of Section 2 were expanded by providing that search warrants might be issued "to search for drugs, medicines, instruments, and other articles intended to be used for self-abuse, or for the prevention of conception, or for causing unlawful abortion . . . ." In reading that sentence it would be unnatural to hang all three dependent phrases on the words "drugs, medicines, instruments, and other articles," thus leaving one of them to begin with the participle "intended" and the other two to begin with the preposition "for." The natural construction would be to let all three dependent phrases hang on the words "intended to be used" and to let each one of the three begin with "for." So construed, the Public Statutes afford a legislative clarification and interpretation of the...