People v. Avery

• Decision Date: 08 December 1926
• Docket Number: No. 145.,145.
• Citation: 236 Mich. 549,211 N.W. 349
• Parties: PEOPLE v. AVERY.
• Court: Michigan Supreme Court

236 Mich. 549

211 N.W. 349

PEOPLE

v.AVERY.

No. 145.

Supreme Court of Michigan.

Dec. 8, 1926.

Exceptions from Circuit Court, Jackson County; James A. Parkinson, Judge.

John F. Avery was convicted of violating the Prohibition Act, and he brings exceptions before sentence. Exceptions overruled.

Argued before BIRD, C. J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ.Frank L. Blackman, of Jackson, for appellant.

John Simpson, Pros. Atty., and Harry E. Barnard, Asst. Pros. Atty., both of Jackson, for the People.

SHARPE, J.

The defendant reviews his conviction on a charge of violating what is known as the Prohibition Act on exceptions before sentence.

The information charged him with the unlawful possession of intoxicating liquor and its unlawful transportation.

The defendant is a resident of the city of Detroit, and has been engaged, with his wife, for several years, in the moving and cartage business in that city. Their place of business is located at 2524 Cass avenue. He owns one large moving van and his wife another. They also own several small trucks used in their business. They advertise for long distance moving and hauling. In response to an advertisement seeking a load for transport from Detroit to Chicago, a man giving his name as Louis King came to defendant's office and arranged with him, for a consideration of $130, which was paid, to transport a load of what he called canned goods to Chicago. Defendant was engaged for that day on a moving job, and did not return until late at night. He found the van, which he claimed belonged to his wife, standing in front of the office. He testified that his wife told him that one of their employees had driven it around to the place on Joseph Campau avenue where it was to be loaded, and assisted in loading it, and brought it back. He claims to have slept that night in the cab of the van. He started for Chicago early the next morning. When about three miles east of the city of Jackson, he was met and stopped by a deputy sheriff of that county, and, upon examination, the van was found to contain about 300 cases of ale and about 25 cases of whisky. There were no canned goods in it. Defendant was arrested and the liquor taken possession of by the officer. It is his claim that he had no knowledge as to the contents of the van. No question as to the legality of the arrest or the search and seizure is presented.

At the conclusion of the proofs, the trial court refused defendant's request to submit to the jury whether the defendant knowingly had the liquor in his possession, or was knowingly transporting it, and instructed the jury that under his own testimony he was guilty as charged. The jury retired, and soon after returned a verdict of guilty.

The exceptions present the following questions:

(1) Is knowledge an essential element of the crime of possessing or transporting intoxicating liquor?

(2) Had the state court jurisdiction; the transportation being interstate?

1. The state Prohibition Act (Act No. 338, Pub. Acts 1917, as amended by Pub. Acts 1919, No. 53) is a police regulation. The first section reads as follows:

‘This entire act shall be deemed to be an exercise of the police power of the state, for the protection of the economic welfare, health, peace and morals of the people of the state, and all of its provisions shall be liberally construed for the accomplishment of those purposes.’

Such statutes may ‘impose criminal penalties irrespective of any intent to violate them.’ People v. Roby, 52 Mich. 577, 579, 18 N. W. 365,50 Am. Rep. 270.

‘Criminal intent is, ordinarily, an element of crime, and this is true although the offense is purely statutory. It is competent, however, for the Legislature to make certain acts, coupled with certain facts, offenses, punishable by fine and imprisonment, without regard to the actor's actual knowledge of the existence of the facts.’ People v. Rice, 161 Mich. 657, 664, 126 N. W. 981, 684.

Many cases are cited to support this holding. The United States Supreme Court has so held:

‘The power of the Legislature to declare an offense, and to exclude the elements of knowledge and due diligence from any inquiry as to its commission, cannot, we think, be questioned.’ C., B. & Q. Ry. v. United States, 220 U. S. 559, 578, 31 S. Ct. 612, 617 (55 L. Ed. 582).

Later Michigan cases are People v. Worges, 176 Mich. 685, 142 N. W. 1100, where defendant's belief and his reasons therefor that the population of the township had increased to more than 1,000 since the last census, and that he was therefore lawfully permitted to keep his saloon open later than 9 o'clock, were of no avail as a defense, and People v. Damm, 183 Mich. 554, 149 N. W. 1002, where the bartender claimed to have been unaware that the young man to whom he had sold liquor was a student, in which it was held that want of knowledge or good faith was no defense. This court has on several occasions alluded to the harshness of such statutes, and has said that criminal intent is a necessary element of the offense, unless there be reason to the contrary. People v. Osborn, 170 Mich. 143, 149, 135 N. W. 921,40 L. R. A. (N. S.) 168. In people v. Rice, supra, it was said: ‘Such legislation is enacted and is sustained, for the most part, on grounds of necessity.’

Section 2 of the statute, as amended, in express terms and without qualification makes it unlawful for any person to transport liquor or have it in his possession within the confines of the state. This enactment is within the power of the state Legislature. Barbour v. Georgia, 249 U. S. 454, 39 S. Ct. 316, 63 L. Ed. 704. The word ‘possess' means to have actual control, care, and management of. Ownership is not an essential element. Blakemore on Prohibition (2d Ed.) 230, and cases cited. There can be no question under the proofs but that the defendant had the liquor which was on the van in his possession, and that he was transporting it within the state.

We may take judicial notice that but a small quantity of the intoxicating liquor handled in this state is manufactured within its borders. The greater part of it is brought in from outside. It is our duty to consider the purpose sought to be accomplished by the legislative act. The people of this state have expressed, in no uncertain terms, their desire that the use of intoxicating liquor, as a beverage, be suppressed. The efforts of those charged with the enforcement of the law are and should be directed to prevent the importation into and the transportation of such liquors within the state. It must be conceded that the enforcement of the provision prohibiting possession and transportation is an effective means to that end.

If the word ‘knowingly’ be read into the statute, the burden will in all cases be cast upon the prosecution to establish beyond a reasonable doubt that a person found with intoxicating liquor under his actual control, care, and management had knowledge that such liquor was in his possession and that it was intoxicating. It may be said that knowledge will be presumed from possession, but such a presumption may be rebutted by the testimony of the accused that he did not know that the contents of the containers was liquor or that it was intoxicating. The prosecution can rarely, if ever, meet this claim by proof of knowledge.

If ever there be a necessity for construing such a statute as it plainly reads, this case would seem to present one. If a man may undertake to transport a large truck load of merchandise, encased in the way intoxicating liquors are usually put up, have his employee assist in the loading, start on his trip without any investigation or any inquiry of his employee as to the contents of his load, and, if before delivery it be found to consist entirely of packages of intoxicating liquors, and he may escape liability because he did not know what his load contained, the efforts of the officers to enforce the law will be much impeded, if not rendered futile.

Persons engaged in transportation business in this state are chargeable with knowledge of the manner in which the illicit handling of intoxicating liquor is being conducted. It is no particular hardship to require them, before accepting a load of merchandise, made up of packages similar to those in which such liquors are usually encased, to satisfy themselves that the contents of their load may be lawfully transported.

In crimes involving intent it has been said:

‘Even where, as affecting intent, ignorance of fact is set up, the defense is unavailable where the defendant, by the exercise of due diligence, could have become aware of his mistake.’ Wharton's Criminal Law (11th Ed.) par. 114.

There are cases in which ignorance or want of knowledge would be a defense. Where a charge was made under the statute forbidding the carrying of concealed weapons, it was said.

‘Of course, if the weapon was carried upon his person through restraint or ignorance, that would be a good defense to the prosecution.’ People v. Williamson, 200 Mich. 342, 166 N. W. 917.

A man might put a weapon in another man's pocket and he might not know it was there. But, if he saw a holster in his pocket, he could not plead ignorance if he neglected to ascertain what it contained. A person might surreptitiously put a bottle of liquor in a man's pocket, or one or more bottles in his grip or in his room. In such cases he would not be conscious of the fact that the bottles were in his possession, and his ignorance of that fact would be a good defense. But if he saw the bottle or bottles, and they were of the kind in which intoxicating liquor is usually put up for sale, and if he neglected to make a reasonable effort to ascertain the contents, his ignorance would be no defense to a charge of unlawful possession. So, too, if one or more bottles were concealed in a load of household goods or other merchandise which a carrier was hauling, or in a grip or other small receptacle one person was carrying...