1. Whether
scienter is a necessary element of a
statutory crime, though not expressed in the statute, is a question
of legislative intent to be answered by a construction of the
statute. P.
258 U. S.
251.
Page 258 U. S. 251
2. Punishment for an illegal act done by one in ignorance of the
facts making it illegal is not contrary to due process of law. P.
258 U. S.
252.
3. To constitute the offense of selling drugs contrary to § 2 of
the Anti-Narcotic Act, it is not necessary that the seller be aware
of their character. P.
258 U. S.
253.
Reversed.
Error to an order sustaining a demurrer to and quashing an
indictment.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is a writ of error to the district court under the Criminal
Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246. Defendants in
error were indicted for a violation of the Narcotic Act of December
17, 1914, c. 1, 38 Stat. 785, 786. The indictment charged them with
unlawfully selling to another a certain amount of a derivative of
opium and a certain amount of a derivative of coca leaves not in
pursuance of any written order on a form issued in blank for that
purpose by the Commissioner of Internal Revenue, contrary to the
provisions of § 2 of the act.. The defendants demurred to the
indictment on the ground that it failed to charge that they had
sold the inhibited drugs knowing them to be such. The statute does
not make such knowledge an element of the offense. The district
court sustained the demurrer and quashed the indictment. The
correctness of this ruling is the question before us.
While the general rule at common law was that the
scienter was a necessary element in the indictment and
proof of every crime, and this was followed in regard to statutory
crimes even where the statutory definition did
Page 258 U. S. 252
not in terms include it (
Reg. v. Sleep, 8 Cox, 472),
there has been a modification of this view in respect to
prosecutions under statutes the purpose of which would be
obstructed by such a requirement. It is a question of legislative
intent to be construed by the court. It has been objected that
punishment of a person for an act in violation of law when ignorant
of the facts making it so is an absence of due process of law. But
that objection is considered and overruled in
Shevlin-Carpenter
Co. v. Minnesota, 218 U. S. 57,
218 U. S. 69-70,
in which it was held that, in the prohibition or punishment of
particular acts, the state may, in the maintenance of a public
policy, provide "that he who shall do them shall do them at his
peril, and will not be heard to plead in defense good faith or
ignorance." Many instances of this are to be found in regulatory
measures in the exercise of what is called the police power where
the emphasis of the statute is evidently upon achievement of some
social betterment, rather than the punishment of the crimes as in
cases of
mala in se. Commonwealth v. Mixer, 207
Mass. 141;
Commonwealth v. Smith, 166 Mass. 370;
Commonwealth v. Hallett, 103 Mass. 452;
People v.
Kibler, 106 N.Y. 321;
State v. Kinkead, 57 Conn. 173;
McCutcheon v. People, 69 Ill. 601;
State v.
Thompson, 74 Iowa 119;
United States v. Leathers, 6
Sawy. 17, Fed.Cas. No. 15581;
United States v. Thompson,
12 F. 245;
United States v. Mayfield, 177 F. 765;
United States v. 36 Bottles of Gin, 210 F. 271;
Feeley
v. United States, 236 F. 903;
Voves v. United States,
249 Fed.191. So, too, in the collection of taxes, the importance to
the public of their collection leads the legislature to impose on
the taxpayer the burden of finding out the facts upon which his
liability to pay depends and meeting it at the peril of punishment.
Regina v. Woodrow, 15 M. & W. 404;
Bruhn v.
Rex, [1909] A.C. 317. Again where one deals with others and
his mere negligence may be dangerous to them, as in selling
diseased food or poison, the
Page 258 U. S. 253
policy of the law may, in order to stimulate proper care,
require the punishment of the negligent person though he be
ignorant of the noxious character of what he sells.
Hobbs v.
Winchester Corporation, (1910) 2 K.B. 471, 483.
The question before us, therefore, is one of the construction of
the statute and of inference of the intent of Congress. The
Narcotic Act has been held by this Court to be a taxing act with
the incidental purpose of minimizing the spread of addiction to the
use of poisonous and demoralizing drugs.
United States v.
Doremus, 249 U. S. 86,
249 U. S. 94;
United States v. Jin Fuey Moy, 241 U.
S. 394.
Section 2 of the Narcotic Act, 38 Stat. 786, we give in part in
the margin.
* It is very
evident from a reading of
Page 258 U. S. 254
it that the emphasis of the section is in securing a close
supervision of the business of dealing in these dangerous drugs by
the taxing officers of the government, and that it merely uses a
criminal penalty to secure recorded evidence of the disposition of
such drugs as a means of taxing and restraining the traffic. Its
manifest purpose is to require every person dealing in drugs to
ascertain at his peril whether that which he sells comes within the
inhibition of the statute, and if he sells the inhibited drug in
ignorance of its character, to penalize him. Congress weighed the
possible injustice of subjecting an innocent seller to a penalty
against the evil of exposing innocent purchasers to danger from the
drug, and concluded that the latter was the result preferably to be
avoided. Doubtless, considerations as to the opportunity of the
seller to find out the fact and the difficulty of proof of
knowledge contributed to this conclusion. We think the demurrer to
the indictment should have been overruled.
Judgment reversed.
MR. JUSTICE CLARKE took no part in this decision.
* Part of § 2 of an act entitled
"An act to provide for the registration of, with collectors of
internal revenue, and to impose a special tax upon all persons who
produce, import, manufacture, compound, deal in, dispense, sell,
distribute, or give away opium or coca leaves, their salts,
derivatives, or preparations, and for other purposes,"
approved December 17, 1914, 38 Stat. 785, 786:
"Sec. 2. That it shall be unlawful for any person to sell,
barter, exchange, or give away any of the aforesaid drugs except in
pursuance of a written order of the person to whom such article is
sold, bartered, exchanged, or given, on a form to be issued in
blank for that purpose by the Commissioner of Internal Revenue.
Every person who shall accept any such order, and in pursuance
thereof shall sell, barter, exchange, or give away any of the
aforesaid drugs, shall preserve such order for a period of two
years in such a way as to be readily accessible to inspection by
any officer, agent, or employee of the Treasury Department duly
authorized for that purpose, and the state, territorial, district,
municipal, and insular officials named in section five of this Act.
Every person who shall give an order as herein provided to any
other person for any of the aforesaid drugs shall, at or before the
time of giving such order, make or cause to be made a duplicate
thereof on a form to be issued in blank for that purpose by the
Commissioner of Internal Revenue, and, in case of the acceptance of
such order, shall preserve such duplicate for said period of two
years in such a way as to be readily accessible to inspection by
the officers, agents, employees, and officials hereinbefore
mentioned."