                                    No. 12116

           I N THE SUPREME C U T O THE STATE O MONTANA
                            OR F              F

                                      1972



THE STATE O MONTANA,
           F

                              P l a i n t i f f and Respondent,

          -VS   -
FRANK L. ANDERSON,
                             Defendant and Appellant.



Appeal from:        District Court of t h e Seventeenth J u d i c i a l D i s t r i c t ,
                    Honorable Thomas Dignan, Judge presiding.

Counsel of R e c d d :

       For Appellant :

                Kenneth Wilson, Miles C i t y , Montana.
                Roland Colgrove, Miles C i t y , Montana.
                Gene Huntley argued, Baker, Montana.

       For Respondent:

                Hon. Robert L. Woodahl, Attorney General, Helena,
                 Montana.
                J. C. Weingartner, Deputy County Attorney, appeared,
                 Helena, Montana.
                W i l l i a m J. K r u t z f e l d t , argued, Miles C i t y , Montana.


                                                 Submitted:       A p r i l 19, 1972

                                                   Decided :      3
Filed :


       d @,k L M d u /
        m 9                                        Clerk
Mr. Justice Gene B. Daly delivered the Opinion of the Court.

     Defendant, Dr. Frank L, Anderson, an osteopath, was
charged under section 54-132, R.C.M. 1947, in the district
court of the sixteenth judicial district, county of Custer,
of wilfully, unlawfully and feloniously selling a stimulant
drug, being described as dtamphetamine. Following a plea of
"not guilty", defendant was granted a change of venue and he
was tried before a jury and found guilty in the district court
of the seventeenth judicial district, county of Valley.     De-
fendant moved for a new trial, which was denied. He now appeals
from the final judgment.
     On December 1, 1969, Vicky Morrison went to Dr. ~nderson's
office to buy some diet pills, since she was interested in
losing weight.   At trial, she testified for the state as
follows :
     "Well I went in and asked him for diet pills and
     then that's when he told me there was other ways
     to reduce and I said 'well I don't have time' and
     I * * he asked me how many I wanted and I said
     $5.00 worth so he just took them and dumped them
     in this envelope and give them to me. Il
     The price of the pills was five cents each and they were
placed in an envelope which contained Dr. Anderson's name
and address in its upper left hand comer.
     Vicky Morrison had learned that Dr. Anderson had diet
pills from her cousin, Beth Bickel, who had also purchased
diet pills from Dr. Anderson.   At trial, Beth Bickel, as a
state witness, gave the following testimony:
     "Q. And what was the date as best you can recollect
     that you purchased the pills? A. November 28th, 1969.
     "Q.  Now as best as you can recollect tell the Court
     and the Jury what occurred when you bought the pills.
     A. I went to his office and asked him if I could get
     some diet pills and I asked him how much they were.
     I asked him how much they were and he said about 5 Q!
     a piece. I said well I want $3.00 worth then, He
    went back into his office, his examining room
    or something and brought out this little bottle
    of pills  ....
                it wasn't very big...,.and I just
    wrote out the check, I asked him if he would
    take a check and he said 'yes' he would and I
    gave it to him and that's about all."
     On December 15, 1969, in an unrelated criminal case,
Vicky Morrison was arrested for larceny.    In connection with
the larceny investigation her luggage was searched and the diet
pills discovered.    The pills were given to Sheriff William
Damrn of Custer County, who then sent them to the Bureau of
Narcotics in San Francisco for analysis.   Mr, James Look of
the Bureau examined the pills and at trial testified the pills
contained d'amphetamine, which may be sold only by medical
doctors or other licensed physicians pursuant to the Montana
Dangerous Drug Act, sections 54-129 through 54-138, R.C.M.
1947. Dr. Anderson does not fall into the class of licensed
physicians under the Act.
    After Beth Bickel was notified by Sheriff Damm to give the
pills she had purchased from Dr. Anderson to him, she told Dr.
Anderson that the sheriff had taken the pills.     Thereupon, Dr.
Anderson called the sheriff who testified at trial for the state
that the following conversation then took place:
     "Q. And he said 'What's going on' and made some
     inquiry along those lines, is that right? A. Yes.
     "Q. And I have down here now what you told me was,
     and I have it down in quotes as if I'd copied it
     verbatim..... 1 You've been selling some drugs to girls'.
     Now is that what you told me? A. Something along
     those lines.
     "Q. And then his response to this was and I wrote
     it down and/p~collectionis I read it back to you
     ....'I thought they were diet pills, If they, if
     they were drugs I sure won't sell any more.' A. Yes,
     "Q.   That's what he said to you, right? A.     Yes.
     "Q. And that was the end of the..conversation?A, Yes,I1
       Throughout the presentation of the s t a t e ' s case, the
capsules c a l l e d d i e t p i l l s were r e f e r r e d t o s o l e l y a s d i e t p i l l s
and no other designation was given t o the p i l l s .
       A t the conclusion of the s t a t e ' s case, defendant moved t o
dismiss upon the grounds the prosecution had f a i l e d t o prove
t h a t defendant had        "k
                              ;   * * notice      or knowledge t h a t the p i l l s
t h a t he sold contained an ingredient of a dangerous drug                           * * *".
       Defense counsel argued t h a t none of the p a r t i c i p a n t s i n
the s a l e knew t h a t the d i e t p i l l s contained a prohibited sub-
stance and t h a t possession alone from the evidence produced by
the s t a t e did not give any conclusion t h a t the defendant had
knowledge or i n t e n t t o deal with prohibited substances i n v i o l a -
t i o n of the Montana Dangerous Drug Act.                    It was argued t h a t the
transactions were handled a s ordinary commercial t r a n s a c t i o n s ,
the p i l l s were sold f o r a modest amount, paid f o r by check,
and i n one instance delivered i n an envelope with defendant's
printed name and address.
       After denial of defendant's motion t o dismiss, defendant
took t h e stand and t e s t i f i e d t h a t he had no knowledge the
capsules contained a dangerous drug and he had not heard the
word "amphetamine" u n t i l a f t e r h i s a r r e s t ,
       Defendant, D r . Frank L. Anderson, has been a p r a c t i c i n g
osteopath i n Miles City since 1926,                   H officed near and was on
                                                        e
f r i e n d l y terms with one D r . Lindeberg, a medical doctor i n Miles
City, who practiced medicine u n t i l she f e l l and broke her h i p
sometime i n the middle 1960's and was unable t o continue o f f i c e
practice.       D r . Lindeberg continued t o p r a c t i c e a t home but her
condition became progressively worse.                     In 1968 she c a l l e d de-
fendant and asked him t o v i s i t h e r , a s defendant had previously
done on numerous occasions.                A t t h a t time, D r . Lindeberg s t a t e d
t o defendant t h a t she r e a l i z e d she would be unable t o continue
her medical practice and wished to give defendant a box of
supplies consisting of assorted bandages, tapes, salves, bottles
of medicines, and a brown bottle with tape on it marked "diet
pills".     Dr. Lindeberg died in 1969.
     Defendant gave the following testimony regarding the "diet
pills":
     "Q. Now did one of those bottles contain pills? A.
     A big bottle---this big brown bottle and it had a
     tape on there that said 'diet pills'.
     "Q. I see and did you discuss this situation with
     her? A. I asked her what they were....what the
     ingredients were. She said 'They're harmless. You
     don't need to worry about them. I take them myself'.
     "Q. And that was the diet pills you referred to?
     A. Yes.
     "Q. Was anything said about taking care of some
     of her patients later on? A. She knew, she said
     'Now people will still want some of these pills and
     they call me on the phone I'll send them to your
     office and you give them some of these. You give
     some of these out to them. 11
     On cross-examination of the forensic chemist, Mr. James
Look, it was developed that the actual determination of the
presence of amphetamine was a complicated analysis requiring
a skilled chemist and a furnished laboratory, and the presence
of amphetamine cannot be determined by appearance alone.
     At the conclusion of the case, the defendant renewed his
motion to dismiss on the grounds previously urged---that the
state failed to prove defendant's knowledge that the pills con-
tained an ingredient of a dangerous drug,
     Appellant presents two issues on appeal:
     "1
      ()     May one be convicted of selling a dangerous
     drug when he had no knowledge that the material he was
     selling contained such a drug?
     "(2)    When defendant denies knowledge that the
     material he sold contained a dangerous drug should
     the matter of his knowledge be determined by the jury
     or is criminal knowledge conclusively presumed
     from possession alone?"
     The underlying issue here is the proof by the state that
is required to establish knowledge of the prohibited substance
sufficient to form the required intent to make the sale criminal
under the Montana Dangerous Drug Act.
     Appellant contends, among other things, that the court's
instruction No, 5 and particularly the last half of that
instruction is a clear misstatement of the law, The instruction
reads :
     "You are instructed that the State does not have
     to show direct evidence that the Defendant intended
     a criminal act; if you believe that the Defendant
     sold dextro (d) amphetamine diet capsules which he
     knew were in his possession and under his physical
     control, the law implies knowledge by the Defendant
     of facts necessary to make the sale criminal."
     (Emphasis supplied)
     This problem was thoroughly discussed by this Court in
State ex rel. Glantz v. Dist. Court, 154 Mont, 132, 140, 461
P.2d 193 (1969).   This discussion is particularly significant
as it was a proceeding to challenge section 54-133, ROCOM.
1947, on this point.
     The following is the pertinent part of the Court's discus-
sion in Glantz:
     "Section 54-133, R.C.M.   1947, states:
     "'A: person commits the offense of criminal posession
     of dangerous drugs if he possesses any dangerous drug
     as defined in this act and does not come within the
     exceptions of section 3. 1
     "~elatorsapparently feel that the lack of definition
     within the act of the requirements for possession is
     fatal. However, the crime of possession of prohibited
     articles has traditionally carried with it the require-
     ment that the possession be knowing and intentional.
     In State v, Hood, 89 Mont. 432 436, 298 P o 354,355 9
     this Court said: 'To justify a'conviction of unlawful
     possession of a prohibited article, there must be
     proof of actual control and management of the thing
     prohibited'. The meaning of the term 'possession' has
     been so well defined by this Court and in other juris-
     dictions that it is hardly ambiguous, thus the lack of
     any specific definition does not detract from the clarity
     of the act in question,
"The Uniform Narcotics Drug Act was adopted many
years ago in 46 states and was repealed in Montana
by the 1969 legislature. The Montana Dangerous
Drug Act replaced it. The Uniform Act is mentioned
here for one purpose---section 2 of that act pro-
vided that it shall be unlawful for any person to
manufacture, possess, have under his control, sell,
prescribe, administer, dispense or compound any
narcotic drug except as authorized by the act. In
91 A.L.R.2d 810, cases are cited which define the
term 1 possessionlfor the purposes of the section
mentioned above. The similarity between this sec-
tion of that act and the present act in Montana is
obvious; knowledge of the alleged possessor or his
intention to possess is not mentioned in either
statute as an element of the offense prohibited.
However, no case under the Uniform Act has been
found where the defendant's conviction of illegal
possession of narcotics has been sustained if the
prosecution failed to prove, either directly or by
inference, that the defendant had knowledge of the
presence of the contraband substance. See Annot.
91 A.L.R.2d 810, 831 185-91 A.L.R.2d LCS, p. 3851.
In addition, no case has been found where the statute
itself was held unconstitutional for failing to
mention the requisite knowledge of the alleged pos-
sessor or his intention to possess.
"The statute prohibiting the possession of dangerous
drugs is a product of a century old but accelerating
tendency to call into existence new duties and crimes
which disregard any ingredient of intent in the
language of the law itself. Morissette v. United
States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1951).
These are offenses of a regulatory nature. They do
not fit neatly into any classifications of common-law
offenses such as those against the state, the person
or property. The original object of criminal law was
to keep the peace and under strong church influence
its function was extended to curb moral delinquencies.
For these purposes it developed a suitable procedure,
requiring proof of moral blame-worthiness or a criminal
intent. But today the crowded conditions of life
require social regulation to a degree never before at-
tempted, The increased evil from dangerous drugs due
to the complex conditions of modern life is just one
area requiring new forms of regulation. With new drugs
being discovered and introduced at an unprecedented
rate, in addition to the existing drugs which have proven
injurious to society, the people through their legisla-
tures have demanded regulations upon their use. Section
53-133, R.C.M. 1947, is the kind of statute where evidence
of the offender's specific intent would be difficult if
not impossible to obtain and adequate enforcement of the
law would be prevented if proof of this element was re-
quired.    his‘ Court does nbt mean to imply, however, that
the state is relieved of the burden of showing that de-
                   .   .
fendant knew the prohibited substance was in his possession.
Such knowledge can be .proved by evidence of acts, declara-
                     - ,           -
tlons, or conduct ot the accused from which the inference
may be drawn that he knew of the existence of the prohibited
substance at the place where it was found. (Citing cases.)"
(Emphasis supplied.)
       From the foregoing discussion i t i s c l e a r , without f u r t h e r
comment, t h a t (1) knowledge i s an e s s e n t i a l element of the criminal
a c t , (2) knowledge can be proved by d i r e c t evidence, or ( 3 ) by
evidence of a c t s , d e c l a r a t i o n s , or conduct of the accused from
which an inference of t h i s knowledge may be drawn.                     The law does
not imply knowledge from t h e f a c t of possession alone.
       In t h i s respect a f a i r reading of the l a s t segment of t h e
c o u r t ' s i n s t r u c t i o n No. 5 would seem t o i n s t r u c t the jury t h a t
the law does imply t h i s knowledge from possession r a t h e r than
an inference being drawn by circumstances surrounding the posses-
sion t o prove knowledge, which circumstances would be a proper
f a c t determination f o r t h e jury,         This would make t h e i n s t r u c t i o n
an i n c o r r e c t statement of the law and confusing t o the jury,
which would e n t i t l e appellant t o a new t r i a l .
      Appellant presents a secondary argument---the cause should
be dismissed because there was no showing a t a l l t h a t t h e appel-
l a n t had any knowledge of the dangerous drug character of the
material he was s e l l i n g and t h e r e was no proof of any f a c t s from
which such knowledge could reasonably be i n f e r r e d .
      W have examined the s t a t e ' s case and, without going i n t o
       e
d e t a i l , find t h a t there was evidence of a c t s , declarations, or
conduct of the accused from which the jury could find an inference
t h a t t h e appellant knew of a prohibited substance, a s the language
was used i n Glantz.         Therefore, i t i s a matter f o r jury determina-
t i o n , under the proper i n s t r u c t i o n s of the t r i a l court.
      The judgment i s reversed and the cause remanded f o r a new
trial.
/ / Chief J u s t i c e




  M r . J u s t i c e John Conway Harrison d i s s e n t i n g :
         I dissent.
         A l l of t h e p r o v i s i o n s of t h e Montana Dangerous Drug Act
  of 1969, s e c t i o n s 54-129 through 54-138, R.C.M.                     1947, became
  e f f e c t i v e J u l y 1, 1969, some f i v e months b e f o r e t h e s a l e s i n -
  volved h e r e .
         I n support of h i s p o s i t i o n defendant r e l i e s upon s e v e r a l
  previous c a s e s of t h i s Court.            S t a t e v. Smith, 135 Mont. 18, 334
  P.2d 1099 and S t a t e v. Hood, 89 Mont. 432, 436, 298 P. 354.
         I n Hood, a c a s e i n v o l v i n g p o s s e s s i o n of c o c a i n e , p o l i c e
  o f f i c e r s went i n t o a room occupied by defendant Hood where they
  found cocaine i n s e v e r a l p l a c e s and a d i c t i o n a r y on which was
  p r i n t e d "the Property of Samuel C. Hood",                    When t h e o f f i c e r s
  came i n t o t h e room Hood rushed t o t h e k i t c h e n s t o v e and threw
  something i n t o t h e f i r e .       Upon c o n v i c t i o n f o r possession of
  c o c a i n e , Hood appealed and t h i s Court r e v e r s e d t h e c o n v i c t i o n
  because t h e s t a t e f a i l e d t o show defendant had conscious p o s s e s s i o n
  of t h e p r o h i b i t e d substance,        The Court s a i d :
          To j u s t i f y a c o n v i c t i o n of unlawful possession
         II

         of a p r o h i b i t e d a r t i c l e t h e r e must b e roof of
         a c t u a l c o n t r o l and management of t h e t h i n g pro-
         hibited."
     Ijood, a possession case and not a sale case, is cited in
a recent opinion of this Court, State ex rel. Glantz v, District
Court, 154 Ffont. 132, 461 P.2d 193.    Glantz involved an original
proceeding before this Court in which an order to show cause
was issued, and one of the issues considered was the constitu-
tionality of the 1969 Montana Dangerous Drug Act.     This Court
found the Act constitutional. (See majority Opinion).
     It is obvious from the cited portion of Glantz in the
majority Opinion that even though the statute does not specifi-
cally require that possession be knowingly, knowledge is an
essential element of a possession charge.    The same rationale
applied to possession cases must be applied where a sale is
involved.
     Here, possession was firmly established by defendant's own
testimony.    In State v. Trowbridge,      Mont   .   , 487 P.2d
530, 532, 28 St. Rep. 693, this Court, citing from a Colorado
case, Petty v. People, 167 Colo. 240, 447 P.2d 217, said:
     ll   1
       However, a conviction for possession may be
     predicated upon circumstantial evidence. Mickens
     v. People, 148 Colo. 237, 365 P.2d 679. A convic-
     tion of illegal possession may be based upon evi-
     dence that the marijuana, while not found on the
     person of the defendant, was in a place under his
     dominion and control. [Citing cases] If possession
     is established, knowledge of the character of the
     drug and the fact that it is possessed can be inferred
     therefrom. 1 1 1
     Here, we have a doctor of osteopathy who had practiced
his profession some 46 years.   He testified that in the brown
bottle of pills given him by Dr. Lindeberg there were quite
a few tranquilizers and diet pills.     He had given some of
these tranquilizers to an individual at the county rest home.
To believe that an osteopathic doctor with the above number of
years of practice would make this argument and expect a jury to
believe it, is beyond comprehension.
         I n a recent opinion of t h i s Court, the f i r s t concerning
the s a l e of dangerous drugs under t h e 1969 Montana Dangerous
Drug Act, t h i s Court considered both sections 54-131 and 54-132,
R.C.M.     1947, of t h a t Act.   I n S t a t e v. Karathanos,   - .
                                                                   Mont          9



493 P.2d 326, 29 St.Rep. 81, defendant was found g u i l t y of a
s a l e where he was i n lawful possession of the drugs.           In that
case, a s here, defendant had no l i c e n s e t o s e l l and did not
come within the exceptions noted i n section 54-131, R.C.M.              1947.
I believe Karathanos i s c o n t r o l l i n g here.
         I would affirm the decision of t h e d i s t r i c t court.
