307 Mass. 7 | Mass. | 1940
Lead Opinion
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, § 21, which has remained in substantially the same form since its original enactment as St. 1879, c. 159, § 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.
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
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 Fed. 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
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 § 1 made it a
Furthermore, in G. L. (Ter. Ed.) c. 272, § 21, the prohibition of the sale, etc., of an “instrument or article . . . for the prevention of conception” is followed immediately by the words “or for causing unlawful abortion.” Appar
Not only does the legislative construction of the phrase “article ... for the prevention of conception” favor the contention of the defendant, but so does the judicial construction heretofore put upon the same or similar words. In United States v. One Package, 86 Fed. (2d) 737, a statute prohibiting the importation of “any article whatever for the prevention of conception” was held not to apply to an article capable of use for that unlawful purpose and also for a lawful purpose, and not shown to be intended for that unlawful purpose. See also United States v. Nicholas, 97 Fed. (2d) 510, 512; State v. Arnold, 217 Wis. 340, 347. In State v. Zellmer, 202 Iowa, 638, a statute made unlawful “the possession of a spear, trap, net, or seine, for fishing.” It was held that the defendant could not be convicted unless
The Massachusetts cases of Commonwealth v. Sookey, 236 Mass. 448, Commonwealth v. Lanides, 239 Mass. 103, and Commonwealth v. Brennan, 262 Mass. 180, are not in point. In the first ease, under a statute forbidding the unauthorized sale of intoxicating liquor, which was defined as including in addition to liquors specifically named “any beverage which contains more than one percent of alcohol,” it was held that without proof the court could not hold that extract of Jamaica ginger was “fit for beverage purposes, much less that it was ordinarily so used.” A liquid is not a beverage merely because it can be drunk. A beverage is a liquid drunk for pleasure. Commonwealth v. Mandeville, 142 Mass. 469. But under the then existing law the character of a liquid, containing considerable alcohol, as a “beverage” and therefore as an “intoxicating liquor,” was determined by inquiring whether it was actually in use as a beverage, and not by inquiring whether its use as a beverage was intended in the particular case. It could not be intoxicating liquor and nonintoxicating liquor at the same time. The right to sell brandy, for example, as a medicine, was given in Massachusetts by licensing drug
Judgment reversed.
Judgment for the defendant.
Here as well as anywhere we may deal with the suggestion that even though the purpose for which the articles are sold is the prevention of disease, an incidental but inevitable result of their use is the prevention of conception. As has been shown, the words of the statute require proof of intended use for an illegal purpose, and are not satisfied by mere incidental result. Besides, the suggested result is not inevitable. The woman may be incapable of pregnancy.
Dissenting Opinion
dissenting. The Legislature, in enacting the statute on which the complaint against the defendant in this case is based, established a public policy with respect to the articles and the acts therein described. Where a public policy is thus established by the Legislature in a criminal statute which is not unconstitutional the Legislature's view as to public policy should be given effect. See VanDresser v. Firlings, 305 Mass. 51, 53.
The statute here under consideration describes three
It would seem that the manifest difference in the description of the crimes constituted in a single sentence of the statute, may not properly be ignored. The Legislature, in its informed wisdom, may well have thought that articles that could be employed for self abuse were of such a character or the effects of their use such, that as matter of public policy, their sale need not be made a crime unless the seller knew that such articles were "intended to be used” for the stated purpose. The Legislature may also have thought that articles "for the prevention of conception or for causing unlawful abortion” were of such a character, or the effect of their use such, that public policy required that their sale be made a crime regardless of the seller’s knowledge or lack of knowledge of their intended use.
The statute would seem adequately to express, in language that is not ambiguous, the purpose of the Legislature to make a seller’s knowledge of the buyer’s intent to use an instrument unlawfully, an element of the crime of selling articles in the first class, and to have omitted malting such knowledge an element of the crimes of selling articles in the second and third classes. "Statutes must be interpreted as enacted. Omissions cannot be supplied by the judicial department of government.” Morse v. Boston, 253 Mass. 247, 252. Hite v. Hite, 301 Mass. 294, 300.
In the common usage of words, the phrase "any . . . instrument or article whatever for the prevention of conception or for causing unlawful abortion” describes the character of such instruments and articles in terms of their adaptability for the stated uses. The meaning of this
The opinion speculates as to supposed mechanical difficulties in so drafting the statute that the words “intended to be used” would be more closely connected with the words “prevention of conception” and “unlawful abortion.” It suggests that “the words ‘intended to be used’ were in effect to be understood before the word ‘for’ in the two instances in which they were omitted in the text.” This seems to imply ambiguity in the language of the statute. The language of the statute, “Whoever sells, lends, gives away, exhibits, or offers to sell, lend or give away . . . any drug, medicine, instrument or article whatever for the prevention of conception” (G. L. [Ter. Ed.] c. 272, § 21), was considered by us less than three years ago. We then said that the terms of the statute above quoted “are plain, unequivocal and peremptory. They contain no exceptions. They are sweeping, absolute, and devoid of ambiguity. They are directed with undeviating explicitness against the prevention of conception by any of the means specified. It would be difficult to select appropriate legislative words to express the thought with greater emphasis.” Commonwealth v. Gardner, 300 Mass. 372, 375.
The statute on which the complaint is based consists of a single sentence. The opinion discusses only the language in the first third of the sentence. The intention of the Legislature in enacting a statute should be determined from all its parts. Williams v. Contributory Retirement Appeal Board, 304 Mass. 601.
The statute read as a whole manifests the broad intent to affix criminality to the various enumerated acts of a person with respect to articles adapted for use for the prevention of conception or for causing unlawful abortion. The
Among other things, the statute provides that one who "exhibits” such an article, although he never makes a sale; that a person who "advertises” it, but never receives a response to his advertisement; that one who gives "notice” in writing or print as to where and how such article may be obtained although nobody acts on such notice; and that one who merely "manufactures” such an article but does no more, commits a criminal offence, as does one who "sells” such an article. The statute makes no distinction between the selling of such an article, and the doing with respect to it of the various other enumerated acts that the statute declares to be crimes. The objective of the statute clearly was to make each of the various stated acts or dealings with such articles a crime without regard to the effects of such act, or to the knowledge, or lack of knowledge, of a defendant, as to the intended use of the article by a person into whose possession it might come. If, as the opinion appears to hold, one who sells such an article cannot be convicted without proof that he knew that an unlawful use was intended by the buyer, it would seem that one charged with doing any of the various other acts described in the one sentence statute, could not be convicted without proof as to his knowledge of an intent of an ultimate buyer or owner to use the article for an unlawful purpose.
Very rarely could proof be obtained that a seller, or a manufacturer, or any of the many other persons described in the statute, had knowledge that a buyer or one otherwise obtaining possession of such an article had in his mind an intent to use it unlawfully. As a practical matter, under the construction of the language of the statute adopted by the opinion, it would be almost impossible ever to obtain a conviction under this statute. The language of the statute is comprehensive and purposeful. Almost any act that a person could possibly do with respect to the articles in question is described and all such acts are made criminal.
The prohibition of the statute is absolute and unconditional. If an exception in the case of a sale was intended it could easily have been expressed. The Legislature might well have believed that such an exception “would endanger the effectiveness of the statute” whose terms “are plain, unequivocal and peremptory.” The result expressed in the opinion should “be sought from the law making department and not from the judicial department of government.” Commonwealth v. Gardner, 300 Mass. 372, 375-377.