Criminal Intent And Knowledge As Requirements In Dangerous Drug Case

MacDonald, Don

English

University of Montana

Montana Law Review Volume 35 Issue 2 Summer 1974 Article 7 7-1-1974 Criminal Intent and Knowledge as Requirements in Dangerous Drug Cases Don MacDonald Follow this and additional works at: https://scholarworks.umt.edu/mlr  Part of the Law Commons Let us know how access to this document benefits you. Recommended Citation Don MacDonald, Criminal Intent and Knowledge as Requirements in Dangerous Drug Cases, 35 Mont. L. Rev. (1974). Available at: https://scholarworks.umt.edu/mlr/vol35/iss2/7 This Note is brought to you for free and open access by ScholarWorks at University of Montana. It has been accepted for inclusion in Montana Law Review by an authorized editor of ScholarWorks at University of Montana. For more information, please contact scholarworks@mso.umt.edu. NOTESCRIMINAL INTENT AND KNOWLEDGE ASREQUIREMENTS IN DANGEROUS DRUG CASESDon MacDonaldINTRODUCTIONMontana's 1969 Dangerous Drug Act1 made the possession of certaindrugs a crime unless the person in possession was excepted from theact. On its face the act does not require anything more for convictionthan that state show possession of the prohibited substance. The appli-cable section of the act reads:A person commits the offense of criminal possession of dangerousdrugs if he possesses any dangerous drug as defined in this act anddoes not come within the exceptions' ...What this section and the act as a whole fails to do is to address itselfto the question of whether or not criminal intent and knowledge of thecharacter of a drug3 are necessary requirements for a conviction ofcriminal possession of dangerous drugs. 4 Because of the legislature'sfailure to set out these requirements, the Supreme Court of Montanahas heard several cases dealing with these questions in the last fouryears. The purpose of this note is to explore these cases to determinethe answers to two questions: 1. Is criminal intent required to establishpossession of dangerous drugs?; and, 2. If criminal intent is required,can it be inferred from possession alone or must knowledge be shownindependently?EARLY LAWPossession of dangerous drugs did not pose the problems of criminalintent and knowledge at common law that many courts now face. Thecommon law did not recognize possession of dangerous drugs as a crime1REnsIED CODES OF MONTANA, §§ 54-129-54-138 (1947) (hereinafter cited as R.C.M.1947).-R.C.M. 1947, § 54-133.'As used in this note knowledge will, unless otherwise indicated, connote knowledgeof the nature of the character of the drug possessed. This type of knowledge is notto be confused with knowledge of the fact that something is possessed. For example,one could have knowledge that he possesses something and yet be totally unaware ofwhat he possesses. This second type of knowledge, knowledge of the character ofthe thing possessed, is the type of knowledge referred to in this note.'Although this note is primarily concerned with criminal intent and knowledge in re-gard to possession crimes, the problem is virtually the same for cases dealing withthe sale of dangerous drugs. The sale section of the drug act failed to require crimi-nal intent or knowledge in cases dealing with the sale of dangerous drugs. Thus, onits face, the section could provide punishment for someone who unknowingly andwithout criminal intent sells a dangerous drug just as the possession section couldresult in the punishment of one who unknowingly and without criminal intent pos-sesses the drug.1MacDonald: Criminal Intent And Knowledge As Requirements In Dangerous Drug CasesPublished by ScholarWorks at University of Montana, 1974mainly because there were no dangerous drugs. It is only within thelast one hundred years that drug possession has been recognized as anevil which the state should prohibit.5Montana's first drug control laws were enacted in 1895.8 Thestatutes limited the sale of opium but did not make the possession of thedrug a crime. In 1921 the legislature enacted the first statute making thepossession of certain drugs a crime. 7 This statute, like its successortoday, failed to mention criminal intent or knowledge as a prerequisiteto showing criminal possession. The statute did state that possessionor control was "presumptive evidence of a violation of this act,"'8 butdid not address itself to the other issues. In a case arising six yearsafter the passage of the 1921 statute, the Montana supreme court hintedthat lack of knowledge may be a legitimate defense to a possessioncharge.9 This statement however, was dictum. Not until State v. Hood'0did the court really face head-on the issues of criminal intent and know-ledge.In Hood police officers entered a room occupied by the appellantand found a dictionary on which was printed "the property of SamuelC. Hood."" The officers found cocaine inside the dictionary and Hoodwas convicted of possession in district court. On appeal, Hood contendedthat criminal intent had not been shown because the state had failed toshow the appellant had knowing possession of the narcotic substance.'2The supreme court agreed and reversed the lower court decision on thegrounds that there had been no showing that the appellant had knowingpossession of the cocaine. As the court pointed out:If the book had belonged to the defendant, it may have been loanedby him to the owner or occupant of the house, and it is just as rea-sonable to suppose that some one other than (the) defendant con-cealed cocaine in its binding. It does not appear that he had anyknowledge of the fact that it contained cocaine; . . . Here there wasno evidence connecting defendant with the conscious possession ofcocaine hydrochloride, and in consequence the court erred submittingthe case to the jury and in denying defendant's motion for a directedverdict.'Thus, according to Hood, a criminal intent was required to show posses-sion and that intent could not be inferred from possession alone butrather through knowledge of the nature of the thing possessed. Inother words, it was not enough for the state to show that Hood knewhe possessed a dictionary. Rather, the state had to show that Hoodknowingly possessed a dictionary containing cocaine.5State ex rel. Glantz v. District Court, 154 Mont. 132, 461 P.2d 193, 198 (1969).6MONTANA CODE ANNOTATED, § 654 (1895).7REVISED CODES OF MONTANA, § 3200 (1921).aid.OState ex rel. Kuhr v. District Court, 82 Mont. 515, 268 P. 501, 503 (1928).1089 Mont. 432, 298 P. 354 (1931)."Id. at 355.12Md.23d.19741 NOTES2Montana Law Review, Vol. 35 [1974], Iss. 2, Art. 7https://scholarworks.umt.edu/mlr/vol35/iss2/7MONTANA LAW REVIEWMontana's legislature replaced the 1921 statute with the UniformNarcotic Drug Act 14 in 1937.15 The relevant portion of the act pro-vided: "It shall be unlawful for any person to manufacture, possess,... any narcotic drug, except as authorized in this act."' 6 Once againthere was no specific requirement of criminal intent or knowledge inthe statute. No Montana cases concerning these issues arose whilethe Uniform Act was in effect in Montana.In other jurisdictions the questions of intent and knowledge in pos-session cases sparked some controversy. The majority of states heldthat a criminal intent in the form of knowledge of the character of thedrug must be shown to prove criminal possession. 17 Four states heldknowledge is not a prerequisite of criminal possession because no crim-inal intent is required with possession crimes.' Among the states notadopting the Uniform Act, the decisions were split.19The reasoning behind the minority position is simple: if the legis-lature wanted a criminal intent to be required the statute would haveso provided. As State v. Henker20 pointed out:Had the legislature intended to retain guilty knowledge or intent asan element of possession, it would have spelled it out.... The omis-sion of the words 'with intent' evidences a desire to make mere posses-sion or control a crime.'Massachusetts has followed a slightly different type of rationale. 22 Thecourt there has relied on strict reasoning derived from a prohibitioncase holding "the burden is placed upon the actor of ascertaining at his14R.C.M. 1947, §§ 54-101--54-128.5Forty-seven states, the District of Columbia and Puerto Rico adopted the UniformNarcotic Drug Act. Only California, Mississippi and Pennsylvania did not adopt theact."-R.C.M. 1947, § 54-102."TParks v. State, 46 Ala. App. 722, 248 So.2d 761 (1971); Carroll v. State, 90 Ariz.411, 368 P.2d 649 (1962); Mickens v. People, 148 Colo. 237, 365 P.2d 679 (1961);People v. Pigrenet, 26 Ill.2d 224, 186 N.E.2d 306 (1962); State v. Williams, 250La. 64, 193 So.2d 787 (1967); State v. Burns, 457 S.W.2d 721 (Mo. 1970); Statev. Faircloth, 181 Neb. 333, 148 N.W.2d 187 (1967); Wallace v. State, 77 Nev. 123,359 P.2d 219 (1961); State v. Gonzales, 78 N.M. 591, 435 P.2d 210 (1967); Peoplev. Pippen, 16 App. Div.2d 635, 227 N.Y.S.2d 164 (1962); State v. Dempsy, 22 OhioSt. 2d 219, 259 N.E.2d 745 (1970); Gonzales v. State, 157 Tex. Crim. 8, 246 S.W.2d199 (1951); Ritter v. Commonwealth, 210 Va. 732, 173 S.E.2d 799 (1970)."Broic v. State, 79 So.2d 775 (Fla. 1955); Jenkins v. State, 215 Md. 70, 137 A.2d115 (1957); Commonwealth v. Lee, 331 Mass. 166, 117 N.E.2d 830 (1954); State v.Boggs, 57 Wash.2d 484, 358 P.2d 649 (1961)."California ,after initially holding knowledge not to be an element of possession inPeople v. Randolph, 133 C.A. 192, 23 P.2d 777 (1933) has since reversed itself andjoined the majority. People v. Cirilli, 265 C.A.2d 607, 71 Cal. Rptr. 604 (1968).Pennsylvania has held knowledge not to be an element of possession. Commonwealthv. Yaple, 217 Pa. Sup. 232, 273 A.2d 346 (1970). Mississippi has not consideredthe problem.150 Wash.2d 809, 314 P.2d 645 (1957)."Id. at 647. Although the court said knowledge wasn't required, the court approveda jury instruction requiring knowledge and actively sought out evidence of thisknowledge before affirming the jury verdict.'Commonwealth v. Lee, supra note 18.[Vol. 353MacDonald: Criminal Intent And Knowledge As Requirements In Dangerous Drug CasesPublished by ScholarWorks at University of Montana, 1974peril whether his deed is within the prohibition of my criminal statute."2Implicit in both minority positions is the consideration that it will beextremely difficult for the state to prove a criminal intent or know-ledge for possession crimes. If possession alone is a crime, the state willhave little difficulty in convicting violators. Once criminal intent orknowledge is added to the possession requirement, however, the state'sburden is much greater. Thus, underlying the minority position is theconsideration that ease of prosecution dictates that bare possession besufficient to obtain a conviction without further proof.The majority position is based upon the understandable concernthat a perfectly innocent person might physically possess a dangerousdrug while having no real knowledge of what the drug was or what heactually possessed.24 In Hood25 for instance, Hood or anyone else couldhave bought the dictionary in which cocaine was found, had no know-ledge of what the dictionary contained, and yet still be sent to prisonin a minority jurisdiction. Only with the retention of intent or know-ledge is the innocent possessor spared such a fate.26THE DRUG ACT CASESMontana replaced the Uniform Narcotic Drug Act with the Mon-tana Dangerous Drug Act in 1969.27 The case of State ex rel. Glantz v.District Court25 put the act to a constitutional test shortly after itsadoption. Since the act had failed to require criminal intent or know-ledge for estabishing possession, the relators charged that the sectionwas unconstitutionally vague. In denying this constitutional challenge,the court referred back to Hood 29 to show that criminal intent and know-ledge were required to show possession. The court pointed out that thestate did not have to go to the extent of showing a specific intent toobtain a conviction. The court stressed, however, that "this does notmean to imply that the state is relieved of showing that the defendantknew the prohibited substance was in his possession."30 But how is thedefendant's knowledge of the prohibited substance to be shown? Canit be inferred from possession alone or should it be shown independ-ently? Glantz indicated that the knowledge should be shown independ-ently:Such knowledge can be proved by the evidence of acts, declarations,or conduct of the accused from which the inference may be drawnthat he knew of the existence of the prohibited substance' ....0Commonwealth v. Mixer, 207 Mass. 141, 93 N.E. 249 (1910).2eState v. Burns, supra note 17.2eState v. Hood, supra note 10.reState v. Dempsy, aupra note 17.-R.C.M. 1947, §§ 54-129--54-138."State ex rel. Glantz v. District Court, supra note 5."State v. Hood, supra note 10."°State ex rel. Glantz v. District Court, aupra note 5 at 198.alld.1974] NOTES4Montana Law Review, Vol. 35 [1974], Iss. 2, Art. 7https://scholarworks.umt.edu/mlr/vol35/iss2/7MONTANA LAW REVIEWBy requiring knowledge to be proved from acts, declarations, or conductof the accused, the court implicitly rejected the notion that knowledgecould be inferred from possession alone. Thus, Glantz indicated thatcriminal intent was required to show possession of dangerous drugsand that this intent was not to be inferred from possession alone.The Montana supreme court took a new and inconsistent coursefrom Glantz when it decided State v. Trowbridge3 2 two years later. InTrowbridge, possession of marijuana had been estabished through theappellant's possession of a baggage claim tag that belonged to a bagcontaining marijuana. The appellant had received the tag when shechecked the suitcase in for an airplane flight. On appeal, the appellantcontended that knowledge of the contents of the bag had not beenshown. In affirming the lower court's conviction, the court cited aColorado case, Petty v. People,33 which stated: "If possession is estab-lished, knowledge of the character of the drug and the fact that it ispossessed can be inferred therefrom. '34 By so reasoning the supremecourt changed it's position in Glantz. Although the state must showcriminal intent as well as knowledge, Trowbridge says this knowledgecan be inferred from possession alone. The court then went on, however,to find evidence that the defendant did have some sort of knowledgeindependent of possession. The fact that Trowbridge travelled underan assumed name and was able to describe the suitcase with particularitysupported inferences of knowledge independent of possession.35 Thus,while the court in Trowbridge stated that knowledge can be inferredfrom possession alone, the court looked for and found independentevidence of knowledge.The whole issue of knowledge and the inference of knowledge frompossession finally came to a head in State v. Anderson. 6 Although An-derson had been convicted for sale of dangerous drugs rather thanpossession, the issues were identical to those faced in the possessioncases previously discussed.3 7 The defendant claimed that he had noknowledge of the nature of the diet pills he sold and as such he didnot have the requisite criminal intent to commit a crime. He furtherargued that a jury instruction implying knowledge from possessionalone was a clear misstatement of the law. The instruction read:[I]f you believe that the Defendant sold dextro .(d) amphetaminecapsules which he knew were in his possession and under his physicalcontrol, the law implies knowledge by the Defendant of facts neces-sary to make the sale criminal.en21 57 Mont. 527, 487 P.2d 530 (1971).13167 Colo. 240, 447 P.2d 217 (1968).3id. at 220.85State v. Trowbridge, supra note 32 at 532."159 Mont. 344, 498 P.2d 295 (1972).v7See material supra note 4."'State v. Anderson, supra note 36 at 297.[Vol. 355MacDonald: Criminal Intent And Knowledge As Requirements In Dangerous Drug CasesPublished by ScholarWorks at University of Montana, 1974NOTESSimply stated, the law implied knowledge and a criminal intent fromthe mere fact of possession alone prior to the sale. The supreme courtrejected the language used in the instruction. With Justice John C.Harrison dissenting, the court reversed and remanded the case for anew trial. The reasoning of the majority was summarized in three basicpoints, all based on Glantz39. These points were:(1) [K]nowledge is an essential element of the criminal act, (2)knowledge can be proved by direct evidence, or (3) by evidence ofacts, declarations, or conduct of the accused from which an inferenceof this knowledge may be drawn. The law does not imply knowledgefrom the fact of possession alone. 'The majority thus explicitly rejected the notion that knowledge couldbe inferred from bare ptossession-the rationale found in Trowbridge.41Nowhere in the majority opinion, however, does the court note, overrule,or even attempt to distinguish Trowbridge. Justice Harrison, in dis-sent, remained consistent with Trowbridge and argued that since posses-sion had been established knowledge could be inferred.42 Thus, Mon-tana lawyers are left with two inconsistent positions with no real indi-cation of which is correct.As long as Trowbridge is still good law, it poses danger to innocentpossessors just as the minority position under the Uniform NarcoticDrug Act.43 Under the minority position, no criminal intent is required;mere possession is enough to obtain a conviction. According to Trow-bridge, a criminal intent is required through a showing of knowledge,but this knowledge can be inferred from possession. If this is true, theinnocent buyer of a dictionary with cocaine in its binding could beconvicted under either the Uniform Narcotic Drug Act minority positionor the Trowbridge rationale. For all practical purposes then, the twopositions are identical and equally distasteful.CONCLUSIONThe purpose of this note was to find the answer to two question:1. Is criminal intent required to show possession of dangerous drugs?;and, 2. If criminal intent is required, can it be inferred from possessionalone or must knowledge be shown independently? There is no questionthat criminal intent is required to show possession in Montana. 44 Whendealing with the second question the Montana supreme court has beenless clear than with the first. While one case indicated that knowledgecan be inferred from possession alone, several others have indicated"State ex rel. Glantz v. District Court, supra note 5."State v. Anderson, supra note 36 at 299.41State v. Trowbridge, supra note 32.2Interestingly enough, Justice John Harrison also wrote the majority opinion in Statev. Trowbridge.4 Minority cases are listed at supra note 18."R.C.M. 1947, § 94-117 should also be noted.1974]6Montana Law Review, Vol. 35 [1974], Iss. 2, Art. 7https://scholarworks.umt.edu/mlr/vol35/iss2/7324 MONTANA LAW REVIEW [Vol. 35that knowledge must be shown independently. Until the supreme courtclarifies the question, either position may be correct. Due to the possibleinjustice that could result when knowledge is inferred from possession,the better view should require the state to show knowledge independentlyof possession.7MacDonald: Criminal Intent And Knowledge As Requirements In Dangerous Drug CasesPublished by ScholarWorks at University of Montana, 1974

Criminal Intent and Knowledge as Requirements in Dangerous Drug Cases

University of Montana School of Law

Montana Law Review
Volume 35
Issue 2 Summer 1974 Article 7
7-1-1974
Criminal Intent and Knowledge as Requirements
in Dangerous Drug Cases
Don MacDonald
Follow this and additional works at: https://scholarship.law.umt.edu/mlr
Part of the Law Commons
This Note is brought to you for free and open access by The Scholarly Forum @ Montana Law. It has been accepted for inclusion in Montana Law
Review by an authorized editor of The Scholarly Forum @ Montana Law.
Recommended Citation
Don MacDonald, Criminal Intent and Knowledge as Requirements in Dangerous Drug Cases, 35 Mont. L. Rev. (1974).
Available at: https://scholarship.law.umt.edu/mlr/vol35/iss2/7
NOTES
CRIMINAL INTENT AND KNOWLEDGE AS
REQUIREMENTS IN DANGEROUS DRUG CASES
Don MacDonald
INTRODUCTION
Montana's 1969 Dangerous Drug Act1 made the possession of certain
drugs a crime unless the person in possession was excepted from the
act. On its face the act does not require anything more for conviction
than that state show possession of the prohibited substance. The appli-
cable section of the act reads:
A person commits the offense of criminal possession of dangerousdrugs if he possesses any dangerous drug as defined in this act and
does not come within the exceptions' ...
What this section and the act as a whole fails to do is to address itself
to the question of whether or not criminal intent and knowledge of the
character of a drug3 are necessary requirements for a conviction of
criminal possession of dangerous drugs. 4 Because of the legislature's
failure to set out these requirements, the Supreme Court of Montana
has heard several cases dealing with these questions in the last four
years. The purpose of this note is to explore these cases to determine
the answers to two questions: 1. Is criminal intent required to establish
possession of dangerous drugs?; and, 2. If criminal intent is required,
can it be inferred from possession alone or must knowledge be shown
independently?
EARLY LAW
Possession of dangerous drugs did not pose the problems of criminal
intent and knowledge at common law that many courts now face. The
common law did not recognize possession of dangerous drugs as a crime
1REnsIED CODES OF MONTANA, §§ 54-129-54-138 (1947) (hereinafter cited as R.C.M.
1947).
-R.C.M. 1947, § 54-133.
'As used in this note knowledge will, unless otherwise indicated, connote knowledge
of the nature of the character of the drug possessed. This type of knowledge is not
to be confused with knowledge of the fact that something is possessed. For example,
one could have knowledge that he possesses something and yet be totally unaware of
what he possesses. This second type of knowledge, knowledge of the character of
the thing possessed, is the type of knowledge referred to in this note.
'Although this note is primarily concerned with criminal intent and knowledge in re-
gard to possession crimes, the problem is virtually the same for cases dealing with
the sale of dangerous drugs. The sale section of the drug act failed to require crimi-
nal intent or knowledge in cases dealing with the sale of dangerous drugs. Thus, on
its face, the section could provide punishment for someone who unknowingly and
without criminal intent sells a dangerous drug just as the possession section could
result in the punishment of one who unknowingly and without criminal intent pos-
sesses the drug.
1
MacDonald: Criminal Intent And Knowledge As Requirements In Dangerous Drug Cases
Published by The Scholarly Forum @ Montana Law, 1974
mainly because there were no dangerous drugs. It is only within the
last one hundred years that drug possession has been recognized as an
evil which the state should prohibit.5
Montana's first drug control laws were enacted in 1895.8 The
statutes limited the sale of opium but did not make the possession of the
drug a crime. In 1921 the legislature enacted the first statute making the
possession of certain drugs a crime. 7 This statute, like its successor
today, failed to mention criminal intent or knowledge as a prerequisite
to showing criminal possession. The statute did state that possession
or control was "presumptive evidence of a violation of this act,"'8 but
did not address itself to the other issues. In a case arising six years
after the passage of the 1921 statute, the Montana supreme court hinted
that lack of knowledge may be a legitimate defense to a possession
charge.9 This statement however, was dictum. Not until State v. Hood'0
did the court really face head-on the issues of criminal intent and know-
ledge.
In Hood police officers entered a room occupied by the appellant
and found a dictionary on which was printed "the property of Samuel
C. Hood."" The officers found cocaine inside the dictionary and Hood
was convicted of possession in district court. On appeal, Hood contended
that criminal intent had not been shown because the state had failed to
show the appellant had knowing possession of the narcotic substance.'
2
The supreme court agreed and reversed the lower court decision on the
grounds that there had been no showing that the appellant had knowing
possession of the cocaine. As the court pointed out:
If the book had belonged to the defendant, it may have been loaned
by him to the owner or occupant of the house, and it is just as rea-
sonable to suppose that some one other than (the) defendant con-
cealed cocaine in its binding. It does not appear that he had any
knowledge of the fact that it contained cocaine; . . . Here there was
no evidence connecting defendant with the conscious possession of
cocaine hydrochloride, and in consequence the court erred submitting
the case to the jury and in denying defendant's motion for a directed
verdict.'
Thus, according to Hood, a criminal intent was required to show posses-
sion and that intent could not be inferred from possession alone but
rather through knowledge of the nature of the thing possessed. In
other words, it was not enough for the state to show that Hood knew
he possessed a dictionary. Rather, the state had to show that Hood
knowingly possessed a dictionary containing cocaine.
5State ex rel. Glantz v. District Court, 154 Mont. 132, 461 P.2d 193, 198 (1969).
6 MONTANA CODE ANNOTATED, § 654 (1895).
7REVISED CODES OF MONTANA, § 3200 (1921).
aid.
OState ex rel. Kuhr v. District Court, 82 Mont. 515, 268 P. 501, 503 (1928).
1089 Mont. 432, 298 P. 354 (1931).
"Id. at 355.
12Md.
23d.
19741 NOTES
2
Montana Law Review, Vol. 35 [1974], Iss. 2, Art. 7
https://scholarship.law.umt.edu/mlr/vol35/iss2/7
MONTANA LAW REVIEW
Montana's legislature replaced the 1921 statute with the Uniform
Narcotic Drug Act 14 in 1937.15 The relevant portion of the act pro-
vided: "It shall be unlawful for any person to manufacture, possess,
... any narcotic drug, except as authorized in this act."' 6 Once again
there was no specific requirement of criminal intent or knowledge in
the statute. No Montana cases concerning these issues arose while
the Uniform Act was in effect in Montana.
In other jurisdictions the questions of intent and knowledge in pos-
session cases sparked some controversy. The majority of states held
that a criminal intent in the form of knowledge of the character of the
drug must be shown to prove criminal possession. 17 Four states held
knowledge is not a prerequisite of criminal possession because no crim-
inal intent is required with possession crimes.' Among the states not
adopting the Uniform Act, the decisions were split.19
The reasoning behind the minority position is simple: if the legis-
lature wanted a criminal intent to be required the statute would have
so provided. As State v. Henker20 pointed out:
Had the legislature intended to retain guilty knowledge or intent as
an element of possession, it would have spelled it out.... The omis-
sion of the words 'with intent' evidences a desire to make mere posses-
sion or control a crime.'
Massachusetts has followed a slightly different type of rationale. 22 The
court there has relied on strict reasoning derived from a prohibition
case holding "the burden is placed upon the actor of ascertaining at his
14R.C.M. 1947, §§ 54-101--54-128.
5Forty-seven states, the District of Columbia and Puerto Rico adopted the Uniform
Narcotic Drug Act. Only California, Mississippi and Pennsylvania did not adopt the
act.
"-R.C.M. 1947, § 54-102.
"TParks v. State, 46 Ala. App. 722, 248 So.2d 761 (1971); Carroll v. State, 90 Ariz.
411, 368 P.2d 649 (1962); Mickens v. People, 148 Colo. 237, 365 P.2d 679 (1961);
People v. Pigrenet, 26 Ill.2d 224, 186 N.E.2d 306 (1962); State v. Williams, 250
La. 64, 193 So.2d 787 (1967); State v. Burns, 457 S.W.2d 721 (Mo. 1970); State
v. Faircloth, 181 Neb. 333, 148 N.W.2d 187 (1967); Wallace v. State, 77 Nev. 123,
359 P.2d 219 (1961); State v. Gonzales, 78 N.M. 591, 435 P.2d 210 (1967); People
v. Pippen, 16 App. Div.2d 635, 227 N.Y.S.2d 164 (1962); State v. Dempsy, 22 Ohio
St. 2d 219, 259 N.E.2d 745 (1970); Gonzales v. State, 157 Tex. Crim. 8, 246 S.W.2d
199 (1951); Ritter v. Commonwealth, 210 Va. 732, 173 S.E.2d 799 (1970).
"Broic v. State, 79 So.2d 775 (Fla. 1955); Jenkins v. State, 215 Md. 70, 137 A.2d
115 (1957); Commonwealth v. Lee, 331 Mass. 166, 117 N.E.2d 830 (1954); State v.
Boggs, 57 Wash.2d 484, 358 P.2d 649 (1961).
"California ,after initially holding knowledge not to be an element of possession in
People v. Randolph, 133 C.A. 192, 23 P.2d 777 (1933) has since reversed itself and
joined the majority. People v. Cirilli, 265 C.A.2d 607, 71 Cal. Rptr. 604 (1968).
Pennsylvania has held knowledge not to be an element of possession. Commonwealth
v. Yaple, 217 Pa. Sup. 232, 273 A.2d 346 (1970). Mississippi has not considered
the problem.
150 Wash.2d 809, 314 P.2d 645 (1957).
"Id. at 647. Although the court said knowledge wasn't required, the court approved
a jury instruction requiring knowledge and actively sought out evidence of this
knowledge before affirming the jury verdict.
'Commonwealth v. Lee, supra note 18.
[Vol. 35
3
MacDonald: Criminal Intent And Knowledge As Requirements In Dangerous Drug Cases
Published by The Scholarly Forum @ Montana Law, 1974
peril whether his deed is within the prohibition of my criminal statute."2
Implicit in both minority positions is the consideration that it will be
extremely difficult for the state to prove a criminal intent or know-
ledge for possession crimes. If possession alone is a crime, the state will
have little difficulty in convicting violators. Once criminal intent or
knowledge is added to the possession requirement, however, the state's
burden is much greater. Thus, underlying the minority position is the
consideration that ease of prosecution dictates that bare possession be
sufficient to obtain a conviction without further proof.
The majority position is based upon the understandable concern
that a perfectly innocent person might physically possess a dangerous
drug while having no real knowledge of what the drug was or what he
actually possessed.24 In Hood25 for instance, Hood or anyone else could
have bought the dictionary in which cocaine was found, had no know-
ledge of what the dictionary contained, and yet still be sent to prison
in a minority jurisdiction. Only with the retention of intent or know-
ledge is the innocent possessor spared such a fate.26
THE DRUG ACT CASES
Montana replaced the Uniform Narcotic Drug Act with the Mon-
tana Dangerous Drug Act in 1969.27 The case of State ex rel. Glantz v.
District Court25 put the act to a constitutional test shortly after its
adoption. Since the act had failed to require criminal intent or know-
ledge for estabishing possession, the relators charged that the section
was unconstitutionally vague. In denying this constitutional challenge,
the court referred back to Hood 29 to show that criminal intent and know-
ledge were required to show possession. The court pointed out that the
state did not have to go to the extent of showing a specific intent to
obtain a conviction. The court stressed, however, that "this does not
mean to imply that the state is relieved of showing that the defendant
knew the prohibited substance was in his possession."30 But how is the
defendant's knowledge of the prohibited substance to be shown? Can
it be inferred from possession alone or should it be shown independ-
ently? Glantz indicated that the knowledge should be shown independ-
ently:
Such knowledge can be proved by the evidence of acts, declarations,
or conduct of the accused from which the inference may be drawn
that he knew of the existence of the prohibited substance' ....
0Commonwealth v. Mixer, 207 Mass. 141, 93 N.E. 249 (1910).
2eState v. Burns, supra note 17.
2eState v. Hood, supra note 10.
reState v. Dempsy, aupra note 17.
-R.C.M. 1947, §§ 54-129--54-138.
"State ex rel. Glantz v. District Court, supra note 5.
"State v. Hood, supra note 10.
"°State ex rel. Glantz v. District Court, aupra note 5 at 198.
alld.
1974] NOTES
4
Montana Law Review, Vol. 35 [1974], Iss. 2, Art. 7
https://scholarship.law.umt.edu/mlr/vol35/iss2/7
MONTANA LAW REVIEW
By requiring knowledge to be proved from acts, declarations, or conduct
of the accused, the court implicitly rejected the notion that knowledge
could be inferred from possession alone. Thus, Glantz indicated that
criminal intent was required to show possession of dangerous drugs
and that this intent was not to be inferred from possession alone.
The Montana supreme court took a new and inconsistent course
from Glantz when it decided State v. Trowbridge3 2 two years later. In
Trowbridge, possession of marijuana had been estabished through the
appellant's possession of a baggage claim tag that belonged to a bag
containing marijuana. The appellant had received the tag when she
checked the suitcase in for an airplane flight. On appeal, the appellant
contended that knowledge of the contents of the bag had not been
shown. In affirming the lower court's conviction, the court cited a
Colorado case, Petty v. People,33 which stated: "If possession is estab-
lished, knowledge of the character of the drug and the fact that it is
possessed can be inferred therefrom. '34 By so reasoning the supreme
court changed it's position in Glantz. Although the state must show
criminal intent as well as knowledge, Trowbridge says this knowledge
can be inferred from possession alone. The court then went on, however,
to find evidence that the defendant did have some sort of knowledge
independent of possession. The fact that Trowbridge travelled under
an assumed name and was able to describe the suitcase with particularity
supported inferences of knowledge independent of possession.35 Thus,
while the court in Trowbridge stated that knowledge can be inferred
from possession alone, the court looked for and found independent
evidence of knowledge.
The whole issue of knowledge and the inference of knowledge from
possession finally came to a head in State v. Anderson. 6 Although An-
derson had been convicted for sale of dangerous drugs rather than
possession, the issues were identical to those faced in the possession
cases previously discussed.3 7 The defendant claimed that he had no
knowledge of the nature of the diet pills he sold and as such he did
not have the requisite criminal intent to commit a crime. He further
argued that a jury instruction implying knowledge from possession
alone was a clear misstatement of the law. The instruction read:
[I]f you believe that the Defendant sold dextro .(d) amphetamine
capsules which he knew were in his possession and under his physical
control, the law implies knowledge by the Defendant of facts neces-
sary to make the sale criminal.en
21 57 Mont. 527, 487 P.2d 530 (1971).
13167 Colo. 240, 447 P.2d 217 (1968).
3id. at 220.
85State v. Trowbridge, supra note 32 at 532.
"159 Mont. 344, 498 P.2d 295 (1972).
v
7See material supra note 4.
"'State v. Anderson, supra note 36 at 297.
[Vol. 35
5
MacDonald: Criminal Intent And Knowledge As Requirements In Dangerous Drug Cases
Published by The Scholarly Forum @ Montana Law, 1974
NOTES
Simply stated, the law implied knowledge and a criminal intent from
the mere fact of possession alone prior to the sale. The supreme court
rejected the language used in the instruction. With Justice John C.
Harrison dissenting, the court reversed and remanded the case for a
new trial. The reasoning of the majority was summarized in three basic
points, all based on Glantz39. These points were:
(1) [K]nowledge is an essential element of the criminal act, (2)
knowledge can be proved by direct evidence, or (3) by evidence of
acts, declarations, or conduct of the accused from which an inference
of this knowledge may be drawn. The law does not imply knowledge
from the fact of possession alone. '
The majority thus explicitly rejected the notion that knowledge could
be inferred from bare ptossession-the rationale found in Trowbridge.41
Nowhere in the majority opinion, however, does the court note, overrule,
or even attempt to distinguish Trowbridge. Justice Harrison, in dis-
sent, remained consistent with Trowbridge and argued that since posses-
sion had been established knowledge could be inferred.42 Thus, Mon-
tana lawyers are left with two inconsistent positions with no real indi-
cation of which is correct.
As long as Trowbridge is still good law, it poses danger to innocent
possessors just as the minority position under the Uniform Narcotic
Drug Act.43 Under the minority position, no criminal intent is required;
mere possession is enough to obtain a conviction. According to Trow-
bridge, a criminal intent is required through a showing of knowledge,
but this knowledge can be inferred from possession. If this is true, the
innocent buyer of a dictionary with cocaine in its binding could be
convicted under either the Uniform Narcotic Drug Act minority position
or the Trowbridge rationale. For all practical purposes then, the two
positions are identical and equally distasteful.
CONCLUSION
The purpose of this note was to find the answer to two question:
1. Is criminal intent required to show possession of dangerous drugs?;
and, 2. If criminal intent is required, can it be inferred from possession
alone or must knowledge be shown independently? There is no question
that criminal intent is required to show possession in Montana. 44 When
dealing with the second question the Montana supreme court has been
less clear than with the first. While one case indicated that knowledge
can be inferred from possession alone, several others have indicated
"State ex rel. Glantz v. District Court, supra note 5.
"State v. Anderson, supra note 36 at 299.
41State v. Trowbridge, supra note 32.
2Interestingly enough, Justice John Harrison also wrote the majority opinion in State
v. Trowbridge.
4 Minority cases are listed at supra note 18.
"R.C.M. 1947, § 94-117 should also be noted.
1974]
6
Montana Law Review, Vol. 35 [1974], Iss. 2, Art. 7
https://scholarship.law.umt.edu/mlr/vol35/iss2/7
324 MONTANA LAW REVIEW [Vol. 35
that knowledge must be shown independently. Until the supreme court
clarifies the question, either position may be correct. Due to the possible
injustice that could result when knowledge is inferred from possession,
the better view should require the state to show knowledge independently
of possession.
7
MacDonald: Criminal Intent And Knowledge As Requirements In Dangerous Drug Cases
Published by The Scholarly Forum @ Montana Law, 1974


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