STATE оf South Dakota, Plaintiff and Appellant, v. Diana STONE a/k/a Diane Bell, Defendant and Appellee.
No. 17166.
Supreme Court of South Dakota.
March 27, 1991.
468 N.W.2d 905
Considered on Briefs Jan. 7, 1991.
Larry Von Wald, Rapid City, for defendant and appellee.
SABERS, Justice.
Trial court dismissed a felony drug indictment against Stone based on constitutional infirmity оf statute. State appeals.
Facts
Stone began sharing her apartment with co-tenant Larive in October, 1989. In November and Decеmber of 1989, an undercover police agent allegedly purchased illegal drugs from Larive at this apartment on three occasions. State claims Stone was present in the apartment on two of these three occasions.
On January 16, 1990, a Penningtоn County grand jury indicted Stone on one count of keeping a place for use or sale of controlled substances in violаtion of
Decision
Any person who keeps or maintains a place which is resorted to by persons using controlled drugs and substances for the purpose of using such substances, or which is used for the keeping
or selling of such substances, is guilty of a Class 5 felony.
On its face,
Legislative acts which arе essentially public welfare regulatory measures may omit the knowledge element without violating substantive due process guarantees. Holdridge v. United States, 282 F.2d 302, 310 (8th Cir.1960). However, even assuming without deciding that a felony drug statute cannot be shoehorned into that regulatory category, wе must still read the statute as constitutional if at all possible. Cert. of Question from U.S. Dist. Court, 372 N.W.2d 113, 116 (S.D.1985). “Whenever within the bounds of reasonable and legitimate construction, an act of the legislature can be construed so as not to violate the constitution, that construction should be adoptеd.” Matter of Certain Territorial Elec. Boundaries, Etc., 281 N.W.2d 65, 69-70 (S.D.1979) (citations omitted). “Whether criminal intent or guilty knowledge is an essential element of a statutory offense is to be determined by the language of the act in connection with its manifest purpose and design.” State v. Nagel, 279 N.W.2d 911, 915 (S.D.1979) (emphasis added).
In State v. Barr, 90 S.D. 9, 237 N.W.2d 888 (1976), this court was also presented with a felony drug statute which сontained, on its face, no element of knowledge. Our solution was simply to read knowledge into the statute. We cited three reasons for doing so:
First, we note that courts in other jurisdictions have held that notwithstanding the absence of the word “knowingly”1 in statutes prohibiting thе unlawful possession and sale of narcotic drugs and controlled substances, knowledge is an element of those offenses.
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Second, [noting that lesser statutory drug offenses contain the element of knowledge] ... it would be anomalous to hold that the legislaturе intended to require a lesser burden of proof on the part of the state in those offenses carrying the more serious maximum possible penalty[.]
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Finally, the state does not contend that knowledge is not an element of the offense described in [the statutе].... The state contends ... merely ... that a person distributing a substance need not know that such an act is illegal[.]
90 S.D. at 15-17, 237 N.W.2d at 891-892. The same considerations are present in construing
We believe that State v. Barr, although not cited by either party, controls this case. Accordingly, we hold that, despite the ab-
The indictment against Stone did not allege that she knew the place she maintained was being resorted to for the purpose of using illegal drugs. Although an indictment which does not contain all the essential elements of the offense charged is defective, “the defect is cured if the information sets forth the proper statute, the jury instructions set forth all thе essential elements of the offense, and the State proves all the essential elements at trial.” State v. Swallow, 350 N.W.2d 606, 609 (S.D.1984) (citing State v. Lachowitzer, 314 N.W.2d 307 (S.D.1982); State v. Larson, 294 N.W.2d 801 (S.D.1980)).
Here the indictment correctly set forth
Although not expressed in Barr, we also note that insistence upon knowlеdge of wrongdoing as an essential element in this felony charge increases the State‘s burden and lessens the defendant‘s burden. Therefore, defendant cannot claim any prejudice.
Given these factors and assuming correct jury instructions, the omission of the knоwledge element from the indictment was not fatal. Accordingly, we reverse and remand for proceedings consistent with this opiniоn.
MILLER, C.J., WUEST, J., and HERTZ, Circuit Court Judge, acting as a Supreme Court Justice, concur.
HENDERSON, J., concurs in result.
AMUNDSON, J., not having been a member of the court at the time this case wаs considered, did not participate.
HENDERSON, Justice (concurring in result).
Although I agree this case should be reversed, I disagree with footnote 2 of this opinion; I simply do not interpret
Furthermore, the majority opinion fails to cite a case eighteen years after Barr, which case is controlling, namely State v. Huber, 356 N.W.2d 468 (S.D.1984). In Huber, we held, inter alia, that a statute may incorporate an intent requirement even though the words “know,” “knowing,” or “knowingly” do not appear in its language.