JOHNS, J.
-1. Eliminating all words unnecessary to this opinion, the act of 1917 would read:
“It shall be unlawful for any person to possess any intoxicating liquor within this state. ’ ’
L'he state cites and relies upon State v. Jarvis (Iowa), 165 N. W. 61; Commonwealth v. Mixer, 207 Mass. 141 (93 N. E. 249, 20 Ann. Cas. 1152, 37 L. R. A. (N. S.) 467); Wells Fargo v. State, 79 Ark. 349 (96 S. W. 189); People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270); Seattle v. Brookins, 98 Wash. 290 (167 Pac. 940), and State v. Wilbur, 85 Or. 565 (166 Pac. 51, 167 Pac. 569). We think there is a [524]*524marked legal distinction between each of these and the instant case.
The "Wilbur case was based on Section 33, Chapter 141, Laws of 1915, and the charge was that a sale of intoxicating liquor was made by an agent of the defendant at the latter’s place of business. Section 2370, L. O. L., provides:
“All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the crime, or aid and abet in its commission, though not present, are principals, and to be tried and punished as such.”
And this court in the Wilbur case sustained the following instruction:
“A sale may be made by a man’s agents just as well as by himself, and if you find that the sale was actually made by an employee of Mr. Wilbur, Mr. Wilbur will be just as g’uilty as the man himself.”
In the opinion in that case it is said:
“If a principal would avoid conviction for an alleged violation of the law in such manner, he must not keep or have about his premises, and under his control alcoholic beverages which might be illegally sold by his agent or servant on his account or for his benefit.”
From the statement of facts in Seattle v. Brookins, 98 Wash. 290 (167 Pac. 940), it appears that:
“On the night of the day mentioned the place was visited by two police officers, and two quarts of whisky and one-half quart of absinthe were found in the safe therein, three pints of whisky in a storeroom opening off the principal clubroom, and one pint of whisky behind the soft-drink bar. The appellant admitted that the two quarts of whisky and the half quart of absinthe found in the safe were in his possession, but claimed that the whisky was owned by another party”
[525]*525—and based upon his own statement, the appellate court sustained the conviction of the defendant.
In the Jarvis case (Iowa), 165 N. W. 61, the defendant was indicted for the crime of keeping a liquor nuisance. The evidence tended to show that fifteen pints of whisky were found in defendant’s hotel premises and in his possession, and the court held that under the Iowa statute there was a presumption that the whisky was kept there by the defendant for sale and that by reason thereof the burden of proof was upon him to explain the possession and to show that the liquor was not kept with intent to sell. But in that case it was left to the jury—
“to say whether or not the defendant was in fact guilty of keeping the liquor with intent to sell and whether or not the defendant had overcome the presumption which the law attaches to finding the liquor in his possession.”
The opinion there says:
“A fair consideration of the court’s instructions brings to the mind the thought, and only the thought, in the light of this record, that unless the liquor was found in the possession of the defendant, under his control, the mere finding of it on the premises would not, in and of itself, establish that the defendant was maintaining a place in which intoxicating liquors were kept by him with intent to sell the same in violation of law. ’ ’
In the Mixer case, 207 Mass. 141 (93 N. E. 249, 20 Ann. Cas. 1152, 31 L. R. A. (N. S.) 467), the question presented was “whether a common carrier or a servant can be convicted of the crime of illegally transporting intoxicating liquor under the statute when he does not know and has no reason to surmise that there is intoxicating liquor in the package delivered for transportation by a seller or consignor,” and it was con[526]*526tended by the defendant that because he was an employee of a common carrier and as such bound to accept all packages offered to him for transportation, and as a general rule had no right to compel a shipper to disclose its contents to him when there was no reason to suspect that the package contained an illegal or dangerous object, the statute ought not to be interpreted in such a way as to render him criminally liable if he was in fact innocent of any intent to transgress the law. In overruling this contention the court there said:
“The legislature may say with respect to transportation of liquors that ordinarily common carriers do not transport them without either knowing or having reasonable ground to suspect their nature, or that usually packages containing them give some evidence of their contents to those reasonably alert to detect it, or that directly or indirectly some information generally is conveyed to the carrier as to their character.”
And that:
“The general rule upon which the defendant relies to the effect that a carrier cannot insist ordinarily upon obtaining knowledge of the character of goods offered for transportation is subject to a well-recognized exception where a statute expressly or impliedly confers that right. The statute with which we are dealing is of that class, and by its imposition of criminal responsibility for transporting the prohibited articles necessarily clothes the carrier with power to obtain such knowledge as may protect him, or to refuse to take the proffered goods.”
It was for that reason that the conviction was sustained.
The case of Wells Fargo v. State, 79 Ark. 349 (96 S. W. 189), was one in which the express company received for shipment what purported to be three packages of furs, which upon examination were found to [527]*527contain “a saddle of venison and eight wild turkeys,” and the court held that,
“It is no defense that the express company and its agents had no knowledge that the packages contained game.”
But it will he noted that this is also a common carrier case, where the defendant had a right to insist upon and make a search of its contents before accepting a package for shipment.
In the Roby Case, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270), the statute required all saloons to be closed on Sunday and provided that “any person who shall violate this, among other provisions, shall be deemed guilty of a misdemeanor.” It appears from the statement of the case that a clerk of the defendant, who was a saloon-keeper, without his knowledge or consent but while he was on the premises, had opened the saloon on Sunday morning to have it cleaned out and in the meantime had sold- a drink to a casual customer who insisted upon having it. The conviction was sustained and the court held:
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JOHNS, J.
-1. Eliminating all words unnecessary to this opinion, the act of 1917 would read:
“It shall be unlawful for any person to possess any intoxicating liquor within this state. ’ ’
L'he state cites and relies upon State v. Jarvis (Iowa), 165 N. W. 61; Commonwealth v. Mixer, 207 Mass. 141 (93 N. E. 249, 20 Ann. Cas. 1152, 37 L. R. A. (N. S.) 467); Wells Fargo v. State, 79 Ark. 349 (96 S. W. 189); People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270); Seattle v. Brookins, 98 Wash. 290 (167 Pac. 940), and State v. Wilbur, 85 Or. 565 (166 Pac. 51, 167 Pac. 569). We think there is a [524]*524marked legal distinction between each of these and the instant case.
The "Wilbur case was based on Section 33, Chapter 141, Laws of 1915, and the charge was that a sale of intoxicating liquor was made by an agent of the defendant at the latter’s place of business. Section 2370, L. O. L., provides:
“All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the crime, or aid and abet in its commission, though not present, are principals, and to be tried and punished as such.”
And this court in the Wilbur case sustained the following instruction:
“A sale may be made by a man’s agents just as well as by himself, and if you find that the sale was actually made by an employee of Mr. Wilbur, Mr. Wilbur will be just as g’uilty as the man himself.”
In the opinion in that case it is said:
“If a principal would avoid conviction for an alleged violation of the law in such manner, he must not keep or have about his premises, and under his control alcoholic beverages which might be illegally sold by his agent or servant on his account or for his benefit.”
From the statement of facts in Seattle v. Brookins, 98 Wash. 290 (167 Pac. 940), it appears that:
“On the night of the day mentioned the place was visited by two police officers, and two quarts of whisky and one-half quart of absinthe were found in the safe therein, three pints of whisky in a storeroom opening off the principal clubroom, and one pint of whisky behind the soft-drink bar. The appellant admitted that the two quarts of whisky and the half quart of absinthe found in the safe were in his possession, but claimed that the whisky was owned by another party”
[525]*525—and based upon his own statement, the appellate court sustained the conviction of the defendant.
In the Jarvis case (Iowa), 165 N. W. 61, the defendant was indicted for the crime of keeping a liquor nuisance. The evidence tended to show that fifteen pints of whisky were found in defendant’s hotel premises and in his possession, and the court held that under the Iowa statute there was a presumption that the whisky was kept there by the defendant for sale and that by reason thereof the burden of proof was upon him to explain the possession and to show that the liquor was not kept with intent to sell. But in that case it was left to the jury—
“to say whether or not the defendant was in fact guilty of keeping the liquor with intent to sell and whether or not the defendant had overcome the presumption which the law attaches to finding the liquor in his possession.”
The opinion there says:
“A fair consideration of the court’s instructions brings to the mind the thought, and only the thought, in the light of this record, that unless the liquor was found in the possession of the defendant, under his control, the mere finding of it on the premises would not, in and of itself, establish that the defendant was maintaining a place in which intoxicating liquors were kept by him with intent to sell the same in violation of law. ’ ’
In the Mixer case, 207 Mass. 141 (93 N. E. 249, 20 Ann. Cas. 1152, 31 L. R. A. (N. S.) 467), the question presented was “whether a common carrier or a servant can be convicted of the crime of illegally transporting intoxicating liquor under the statute when he does not know and has no reason to surmise that there is intoxicating liquor in the package delivered for transportation by a seller or consignor,” and it was con[526]*526tended by the defendant that because he was an employee of a common carrier and as such bound to accept all packages offered to him for transportation, and as a general rule had no right to compel a shipper to disclose its contents to him when there was no reason to suspect that the package contained an illegal or dangerous object, the statute ought not to be interpreted in such a way as to render him criminally liable if he was in fact innocent of any intent to transgress the law. In overruling this contention the court there said:
“The legislature may say with respect to transportation of liquors that ordinarily common carriers do not transport them without either knowing or having reasonable ground to suspect their nature, or that usually packages containing them give some evidence of their contents to those reasonably alert to detect it, or that directly or indirectly some information generally is conveyed to the carrier as to their character.”
And that:
“The general rule upon which the defendant relies to the effect that a carrier cannot insist ordinarily upon obtaining knowledge of the character of goods offered for transportation is subject to a well-recognized exception where a statute expressly or impliedly confers that right. The statute with which we are dealing is of that class, and by its imposition of criminal responsibility for transporting the prohibited articles necessarily clothes the carrier with power to obtain such knowledge as may protect him, or to refuse to take the proffered goods.”
It was for that reason that the conviction was sustained.
The case of Wells Fargo v. State, 79 Ark. 349 (96 S. W. 189), was one in which the express company received for shipment what purported to be three packages of furs, which upon examination were found to [527]*527contain “a saddle of venison and eight wild turkeys,” and the court held that,
“It is no defense that the express company and its agents had no knowledge that the packages contained game.”
But it will he noted that this is also a common carrier case, where the defendant had a right to insist upon and make a search of its contents before accepting a package for shipment.
In the Roby Case, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270), the statute required all saloons to be closed on Sunday and provided that “any person who shall violate this, among other provisions, shall be deemed guilty of a misdemeanor.” It appears from the statement of the case that a clerk of the defendant, who was a saloon-keeper, without his knowledge or consent but while he was on the premises, had opened the saloon on Sunday morning to have it cleaned out and in the meantime had sold- a drink to a casual customer who insisted upon having it. The conviction was sustained and the court held:
“This respondent did not keep his bar closed and he has therefore disobeyed the law. And he has not only disobeyed the law, but the evil which the law intends to guard against has resulted; that is to say, there has been, either with or without his assent, — it is immaterial which, — a sale of intoxicating liquors to a person who took advantage of the bar being open to enter it.”
From an examination of all of such authorities and the facts therein stated, and the principles upon which they are based, it will be found that neither of them is in point.
The case of People v. Rice, 161 Mich. 657 (126 N. W. 981), cited by the defendant, is well considered and lays down this rule:
[528]*528“While intent is ordinarily an element of crime, the legislature may create offenses without reference to the offender’s knowledge of the existence of the facts, but courts are slow to find a legislative intent to condemn a man for not knowing that which he cannot know.”
In Welch v. State, 145 Wis. 86 (129 N. W. 656, 32 L. R. A. (N. S.) 746), cited by defendant, the plaintiff in error was convicted in the lower court of furnishing oleomargarine at a lunch-counter to one Southard, without first notifying him that it was not butter, and the conviction was sustained on appeal. The question was there raised,
“Can a person be convicted of crime without having an opportunity to avoid the act which is held to constitute the crime?”
The court refused to decide that point, saying:
“The answer to this in the instant case is that the evidence does not present that question. The statute imposes a duty upon persons furnishing eatables in hotels, boarding'-houses, restaurants or lunch-counters. "When one enters upon the business of furnishing guests or patrons with eatables at any of the establishments mentioned he thereby undertakes to inform himself and to know the nature of the substance he is dispensing’. The law casts on him this duty. He cannot enter into or continue the occupation and omit the duty. To furnish the substance without knowing what it is and without informing the guests is ordinarily to take the chances of violating the statute.”
State ex rel. v. Southern Express Co. (Ala.), 75 South. 343, involved a bill for an injunction to prevent certain acts or conduct by the company as an interstate common carrier, and it was there held that:
“A carrier would be held to receive at peril of offending the prohibitory and regulatory laws of Ala[529]*529bama consignments destined for transportation into and for delivery in Alabama that were free from canse for suspicion that they contained prohibited liquors or liquors in receptacles of forbidden capacities. Any other interpretation of the federal laws would so heavily burden interstate movements of innocent commerce as that it cannot be supposed that the lawmakers intended such an effect, in the absence of unequivocal statement of a different purpose.”
“Unless otherwise advised either of the fact that an unlabeled package contained liquors within the description of Section 240 or of circumstances reasonably calculated to arouse suspicion or inquiry with respect to that fact, the carrier to whom a shipment for transportation and delivery in Alabama is proffered may rely upon the absence from a package of the label required by that section as negativing the presence therein of forbidden liquors or liquors in receptacles of prohibited capacities.”
In Ex parte Ahart, 172 Cal. 762 (159 Pac. 160), the petitioner was arrested for violating the terms of the liquor ordinance of the town of Covina, which among other things provides:
“Every person who * * transports within the city of Covina, spirituous, or vinous, or malt, or mixed liquors or intoxicating drinks, or vessels for containing the same, to any place, the establishing or keeping of which is prohibited by this ordinance * * shall be deemed guilty of a misdemeanor.”
The syllabus of the opinion contains the following paragraph:
“An ordinance making it a misdemeanor- to transport intoxicating liquors to certain prohibited places, construed to apply only where there is evidence of a wrongful intent, not where the act is merely inadvertent.”
[530]*530And the opinion says:
“If this law deliberately made it a crime for the doing, of snch an act innocently performed, it would indeed be a harsh one. ’ ’
By Section 4180 of the Compiled Laws of Oklahoma for 1909 (Snyder), it is made unlawful “to ship, or in any way convey such liquor from one place within the state to another place therein, except the conveyance of a lawful purchase as herein authorized.” In the case of Golpi v. State, 14 Okla. Cr. 564 (174 Pac. 288), the defendant was indicted .under- that section jointly with an Italian and an Austrian and
“testified that the Austrian asked him to assist him with the packages; that he did not know they contained whisky and had nothing whatever to do with the ownership .therein and had no intention of violating the statute.”
The trial court was requested by the defendant to give the following instruction, which it refused:
“I instruct you as follows: That before you would be authorized to convict the defendant in this cause,' you must believe from the evidence that the defendant knowingly participated in the offense with which he is charged, and unless you find from the evidence, beyond a reasonable doubt, that the defendant, Angelo Golpi, in assisting other parties in carrying the whisky about which testimony has been given knew that he was assisting in the violation of the law, and unless you so believe beyond a reasonable doubt, you should acquit the defendant, and say by your verdict, ‘Not guilty.’ ”
In discussing it, the opinion of the appellate court said:
“The purpose of this requested instruction was to allow the plaintiff in error the advantage of the defense that in good faith he assisted these men, whom [531]*531lie knew as friends and who he did not know were violators of the law, in carrying their packages, without any knowledge of their contents and without suspecting that they contained intoxicating liquor. The court refused to give the instruction and proper exceptions were saved.
“The question presented resolves itself into the proposition of whether or not a person who is charged with violating the prohibitory law, in that he conveyed intoxicating liquor from one place in a county to another place therein, can avail himself of the defense that he did so innocently. We are of the opinion that this is a good defense and that the instruction should have been given”
—and reversed the judgment of the lower court.
Like our own, the Oklahoma statute does not contain any- qualifying words, and while it is true that no authorities are cited in that opinion, the opinion itself seems to be squarely in point.
It appears from the record in the instant case that the defendant was a porter in the employ of the Med-ford Hotel; that it was his duty to meet the incoming railway trains at the depot and receive the baggage of guests arriving at the hotel from such trains and to transport the baggage to the hotel to be thereafter claimed by the guests; that after receiving the baggage from the guests or railway porters at the trains he would place it on the hotel bus and would then ride on the bus with the baggage to the hotel and place the baggage in the lobby. The defendant testified that he received the suitcase in question from the porter of a sleeping-car in the same manner and under the same conditions that he took baggage belonging to the incoming guests of the hotel from such porters; that he received the suitcase from the railway porter as the baggage of a guest of the hotel and believed it to be such; that he had no property interest therein or any [532]*532suspicion that it contained intoxicating liquor, and that the only possession or control which he ever had of the suitcase or its contents was in his capacity as porter, for the purpose of transporting it from the railway station to the hotel.
The defendant was not a common carrier. He did not have control of a place of business which was operated with or without a license; neither was he serving one thing to the public and representing that it was another. He was employed as a porter of the Medford Hotel and his duties in receiving the baggage of guests were more or less those of a servant of the traveling public. (It is a well-known fact that porters meet trains and boats and guests arriving at the hotels; that in doing so they receive and handle the grips and suitcases of such guests, yet any traveler would bitterly resent the attempt of a porter or anyone else to make a search of the contents of his hand-bag or suitcase. In the discharge of his duties the defendant did not have the right of search and did not have any choice or discretion in the taking or handling of the baggage of a guest. If the mere act of a porter in lifting a suitcase which contains intoxicating liquors is within itself a violation of the statute in question, then any minister, old lady or the most radical prohibitionist, through chance or design might be made the innocent victim of having intoxicating liquor in his or her possession, and under the instructions given by the trial court in this case could be convicted of that offense. We do not believe that-the statute should be so construed, and prefer to adopt the “rule of reason.”
2. We hold that it was a question of fact for the jury to find from the evidence, beyond a reasonable doubt, whether or not the defendant knew or had reasonable grounds to know or believe that the suitcase contained [533]*533intoxicating liquor at the time when he took it into his possession. The judgment of the Circuit Court is reversed and the cause remanded.
Reversed and Remanded. .