MEMORANDUM OPINION
KEADY, Chief Judge.
Earlie Wright, Jr. petitions the court for habeas corpus relief from state court conviction under the provisions of 28 U.S.C. § 2241. On July 4, 1969, petitioner, after trial by jury, was convicted in the Circuit Court of Lowndes County, Mississippi, of the unlawful possession of marihuana in violation of § 6846, Miss. Code Ann. On the same day he was sentenced to serve a term of two years in the Mississippi State Penitentiary and to pay a fine of fl.OOO.
A motion for a new trial was overruled, and petitioner appealed his conviction to the Supreme Court of Mississippi, which affirmed. Wright v. State, 236 So.2d 408 (Miss. 1970). A petition for re-hearing was denied on July 2, 1970. Petitioner then attempted to take a direct appeal to the Supreme Court of the United States, which dismissed the appeal for want of jurisdiction and, treating the attempted appeal as a petition for writ of certiorari, denied certiorari. Wright v. Mississippi,
401 U.S. 929, 91 S.Ct. 944, 28 L.Ed.2d 210 (1971).
Petitioner thereafter filed in the Supreme Court of Mississippi a petition for writ of error coram jiobis, which was dismissed. Wright v. State of Mississippi, Misc. No. 110, Miss.S.Ct. (1971). He was then granted leave to file in forma pauperis a petition for writ of habeas corpus in this court.
Petitioner attacks his conviction on two grounds, both of which were raised at all appropriate stages of the proceedings in the trial court and before the Supreme Court of Mississippi. He has thus exhausted his state court remedies within the meaning of 28 U.S.C. § 2254. Petitioner’s grounds for habeas corpus relief are:
1. That petitioner’s possession of marihuana was discovered by means of the warrantless and unreasonable search and seizure of his personal effects by officers of the Columbus, Mississippi Police Department following his arrest for public drunkenness and creating a disturbance and while his effects were in the possession of the officers solely for safekeeping pending his release from confinement, and that the admission of the fruits of such search and seizure at his trial violated his Fourth Amendment rights; and
2. That § 6846, Miss.Code Ann., and the instructions to the jury given by the trial court totally eliminate criminal intent as an element of the crime of possession of marihuana, resulting in petitioner’s being deprived of his liberty without due process of law in violation of his rights under the Fourteenth Amendment to the Constitution.
In reply, respondent says:
1. That the search and seizure complained of by petitioner were not unreasonable for the reason that they were carried out incident to the lawful arrest of petitioner or, in the alternative, that the duty of the officers to make an inventory of petitioner’s personal effects in order to safeguard them pending his release from confinement justified the search and subsequent seizure; and
2. That criminal intent is not a constitutionally required element of the crime of possession of marihuana.
Except in one particular, the parties raise no substantial issues of fact, and the court has before it a complete transcript of all of the prior proceedings. Because of the incompleteness of the state record, the court conducted a limited evidentiary hearing, as hereinafter noted, and also received both oral argument and memorandum briefs. The case is now ripe for decision.
THE FACTS
On August 31,1968, petitioner, a native of Pickensville, Alabama, but then a resident of Brooklyn, New York, was visiting in Columbus. He had arrived in Columbus from New York at approximately 9:30 that morning after driving all night. His activities during the day are not known, but during the evening hours of August 31, he arrived by automobile at the Elks Club in Columbus, where a dance was being held, in the company of several other persons, including his brother-in-law, a female cousin, a man named “Jimmy”, and a girlfriend of the cousin with whom the cousin
taught school. Prior to arriving at the Elks Club, petitioner had consumed the proverbial “few drinks”.
Petitioner testified that after they got out of their car, he and his friends stood around in front of the Elks Club for a while before going in, and during that time he was handed a packet by Jimmy, who asked petitioner to hold the packet until he returned from inside the club. Petitioner took the brown packet or package and placed it in the right rear pocket of his trousers, where he also carried a handkerchief. He denied that he knew the contents of the package, denied that he ever looked inside it, and insisted that he was merely holding the package for Jimmy as he had been asked to do. Petitioner’s testimony was wholly uncontradicted. Neither Jimmy nor any of the other members of petitioner’s party testified at his trial.
Officers Thompson and Chandler of the Columbus Police Department were on the night of August 31 on duty at the Elks Club, where a large crowd has assembled for the dance. They observed petitioner and his party as they left their automobile and approached the Elks Club. The officers noted that petitioner was unsteady on his feet and was conducting himself in a boisterous, loud and disorderly manner, including the frequent use of profanity. Chandler asked petitioner to conduct himself in a more orderly manner, and petitioner complied with that request for a brief time. However, petitioner soon became disorderly again near the entrance to the Elks Club where the crowd was attempting to enter the dance, and the officers again observed that petitioner was very unsteady on his feet. Chandler detected an odor of alcohol on petitioner’s breath.
The officers requested that petitioner show them some identification, with which request petitioner was slow in complying, whereupon the officers placed him under arrest on charges of public drunkenness
and creating a disturbance.
After petitioner was placed under arrest, Officer Chandler patted him down, and discovered and removed a .22 caliber pistol.
Nevertheless it does not appear from the record that petitioner was ever charged with the offense of carrying a concealed weapon.
Petitioner submitted to the arrest without resistance, he made no attempt to escape or to interfere with the officers as they hand
cuffed him and summoned a patrol car by radio. The officers made no effort to search petitioner thoroughly at the scene of the arrest, and nothing other than the pistol was removed from his person. Petitioner remained in their custody not more than 15 minutes.
Officers Jaynes and Ross, in response to radio message, arrived in a patrol car at the Elks Club to transport petitioner to the police station, which was about a mile away. The arresting officers did not accompany petitioner. Upon arrival at the police station, petitioner was booked, and then Officer Jaynes immediately carried out what he described as the department’s usual procedure of “shaking down” a prisoner. The shaking down process consisted of a thorough search of petitioner’s person by way of first patting him down and then removing the contents of each of his pockets. At the original trial Officer Jaynes testified that the purpose of the shaking down process was to safeguard petitioner’s property until his release from jail;
the officer later affirmed that he was also interested in looking for weapons in the shakedown. In the course of the shakedown Officer Jaynes felt a bulge in petitioner’s right rear trouser pocket and he removed the small brown package lodged behind a pocket handkerchief. Jaynes opened the package, looked inside, and saw twelve small handrolled white cigarettes, about two inches in length. The officer removed at the same time $116 cash, keys, billfold, and other pocket contents which he placed in a bag and later locked in a file. The cigarettes, however, attracted the officer’s interest because of their small size and since they were carried in petitioner’s rear pocket beneath a handkerchief. Jaynes at once suspected that they might be something other than regular tobacco cigarettes. The officer then lit a match to one of them and observed that “it did not smell like regular cigarettes.”
Jaynes alone conducted his experiment with the cigarette after he had placed petitioner in a cell and locked up his other personal belongings. His suspicions confirmed, Jaynes then placed the cigarettes and brown package in an evidence locker at the police station.
Police Officer Thomas was present at the police station when Jaynes conducted the shakedown of petitioner. He observed the search and affirmed that when Jaynes removed the brown package from petitioner’s right rear pocket, Jaynes called Thomas over and asked him to look at it. Jaynes then asked Thomas if he
knew what it was, to which Thomas replied that he did not. Jaynes then asked Thomas, “Well, how about labeling it for Chief Walters for me and I will come back up and get it.” Thomas testified that he complied with this request by placing the brown package in a larger envelope, which he labeled and delivered to Jaynes. Although Thomas was in the immediate presence of Jaynes and petitioner during the shakedown, and although he was asked to state in chronological order everything he saw Jaynes do with the brown package, he did not testify that he ever saw Jaynes light or burn a cigarette removed from the package. Indeed, it does not appear that Thomas was aware that the brown package contained cigarettes.
At approximately 8 a. m. the next day, September 1, Officer Chandler reported for duty and, having been advised during the preceding night that an article taken from the person of petitioner was in the evidence locker and was to be delivered to Chief of Detectives Walters, he removed the brown package from the evidence locker and delivered it to Chief Walters, who kept it locked in his desk until September 4.
Petitioner was not questioned concerning marihuana and was not informed that he was being charged with possession of marihuana until the morning of September 1, when he was fingerprinted. At that time he was questioned by a detective lieutenant concerning the eon-tents of the brown package, but denied any knowledge of the contents. Later that day he was released on bail to answer the charge of possession of marihuana.
On September 4, the police chief delivered the brown package to Detective Sergeant Glover with instructions to transport the package to the Mississippi Crime Laboratory at Jackson for chemical analysis. This was done on September 5. Laboratory tests revealed that the cigarettes in the brown package contained marihuana. At no time did the police officers either seek or obtain a warrant for the search or seizure of any of petitioner’s personal effects.
On November 19, petitioner was indicted by the grand jury of Lowndes County for the unlawful possession of marihuana. He was tried in the Circuit Court on July 4, 1969. At his trial, petitioner was represented by retained counsel, who has continued to represent him through every stage of the proceedings and is of counsel before this court. Petitioner’s attorney strenuously but to no avail objected to the introduction of evidence resulting from the examination of the contents of the brown package. In his motion for a new trial, defendant’s attorney also raised the question of the constitutional validity of the statute and the propriety of jury instructions omitting the element of criminal intent.
The trial court denied the motion. Petitioner having been convicted, his motion for new trial denied, his contentions re
jected by the Supreme Court of Mississippi, and the Supreme Court of the United States having declined direct review of his conviction either by way of appeal or certiorari, he now invokes his right to collaterally attack his conviction in this court by way of the great writ of habeas corpus.
THE LAW
Although the State Supreme Court has rejected petitioner’s claims, the federal habeas court has the power and the duty to make an “independent adjudication” of the federal constitutional issues raised by petitioner, e. g., Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The state adjudication carries the weight which the federal practice gives to decisions of the court of last resort of another jurisdiction, but the issues raised being federal, it is the federal court which must have the last say. Fay v. Noia, supra. We thus proceed to examine the petitioner’s contentions which raise issues of fundamental constitutional rights under the Fourth and Fourteenth Amendments to the federal Constitution.
A.
The Search and Seizure
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Constitution of the United States, Amendment IV.
While the Fourth Amendment does not in express terms prohibit all warrantless searches and seizures, referring instead to “unreasonable” searches and seizures, it is now settled constitutional doctrine that a search and/or seizure conducted without a warrant is per se unreasonable, subject only to certain well recognized exceptions grounded upon the exigencies out of which such exceptions arise. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Resnick, 455 F.2d 1127 (5 Cir. 1972); Barnett v. United States, 384 F.2d 848 (5 Cir. 1967). Thus the burden is on the party seeking to justify the warrant-less search to produce facts bringing the search or seizure within one of the exceptions. Barnett v. United States, supra; Brett v. United States, 412 F.2d 401 (5 Cir. 1969); United States v. Resnick, supra. The exceptions are “jealously and carefully drawn”, and there must be “a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.”
Coolidge,
supra, 403 U.S. at 455, 91 S.Ct. at 2032, 29 L.Ed.2d at 576.
A well-recognized exception to the requirement of a search warrant is the right to search the person of an arrestee incident to his lawful arrest. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); United States v. Gonzalez-Perez, 426 F.2d 1283 (5 Cir. 1970). A search of the person of an arrestee is incident to the arrest “when it is conducted shortly thereafter at the jail or place of detention rather than at the time and place of arrest.” United States v. Gonzalez-Perez, at 1287. However, while a search of a person incident to an arrest may be undertaken or completed at a different time or place, a warrantless search and seizure is not lawful if conducted after long delay and not contemporaneous with the arrest. Brett v. United States, 412 F.2d 401 (5 Cir. 1969). A further rule is that warrant-less seaches and seizures incident to an arrest are strictly limited in purpose and scope. As to purpose, an arresting officer may reasonably search for and seize: (1) weapons that the arrestee may use to resist arrest or effect escape; (2) evidence of crime which may be concealed or destroyed; and (3) property the possession of which is unlawful (contraband). Chimel v. Calif., 395 U.S.
752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ;
United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). As to scope, an arresting officer may reasonably search for and seize objects on the arrestee’s person, and “the area ‘within his immediate control’ ”.
Chimel,
395 U.S. at 763, 89 S.Ct. at 2040.
Petitioner and respondent are not in disagreement with the foregoing general rules relating to the reasonableness of a search and seizure incident to a lawful arrest, and they further agree that whether a search or seizure is reasonable within the context of a given case must depend on the facts and circumstances presented by each case. As
Rabinowitz
held:
“What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are ‘unreasonable’ searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.” 339 U.S. at 63, 70 S.Ct. at 434, 94 L.Ed. at 659.
As applied to the case at bar, the arrest of petitioner for misdemeanors committed in the presence of the Columbus officers was unquestionably lawful and furnished a valid basis for the search of petitioner’s person. The officers were not required to complete the search at the very moment and place of arrest, in view of the crowd present at the scene and the other duties then required of the two arresting officers. Under such circumstances, it was reasonable for the officers to do no more than cursorily pat down the arrestee for weapons at the place of arrest and then complete the search of his person upon arrival at the stationhouse. This is quite proper when the arrestee is directly brought to the stationhouse without undue delay for the purpose of booking. It is also reasonable for police officers, upon the arrestee’s arrival at the stationhouse, promptly to conduct a thorough search of the person “to remove any weapons that [arrestee] might seek to use in order to resist arrest or effect his escape,” and also to “seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.”
Chimel,
supra, 395 U.S. at 763, 89 S.Ct. at 2040.
Admittedly, Jaynes’ examination and subsequent use of the contents of the brown package was a search and seizure within the scope of the Fourth Amendment. Petitioner advances two specific contentions that the search was unreasonable : First, he asserts that the stationhouse search was, in point of fact, not incident to lawful arrest but its purpose was to rummage through his effects under the guise of inventorying and safeguarding petitioner’s personal property during his period of incarceration; second, even if incident to lawful arrest, the search did not confer upon the officers the right to seize property unrelated to the crimes for which petitioner was arrested (i. e., disorderly conduct and public drunkenness) and upon mere suspicion that it might be contraband. After mature consideration, we find both contentions to be without merit and, therefore, reject them.
Petitioner places his main reliance upon Brett v. United States, supra, a Fifth Circuit case, where the defendant was arrested and was searched, though not thoroughly, he was taken to jail and given prison garb, and his clothing and
effects were put in a bag in the prisoners’ property room for routine safekeeping. Under these circumstances search of his clothing three days later without a search warrant, which resulted in finding heroin in the watch pocket, was held to be invalid. The facts are clearly distinguishable, as the
Brett
Court pointed out that “this search was not incident to an arrest because it was not even close to contemporaneous.” The undisputed facts of the case at bar bring the stationhouse search clearly within the framework of a search made contemporaneously with the lawful arrest and incident thereto. As the Fifth Circuit said in
Gonzalez-Perez:
“The arresting officers are not required to stand in a public place examining papers or other evidence on the person of the defendant in order for such evidence to be admissible.” 426 F.2d at 1287.
The Columbus police officers had the authority to complete at the stationhouse the search begun of petitioner at the Elks Club scene, and, as noted, this search was carried out almost immediately upon petitioner’s arrival at the station-house. The fact that officer Jaynes testified that his purpose in the shakedown was to collect the personal effects of petitioner for safekeeping did not restrict the right to search and seize weapons, or evidence of crime which might be concealed or destroyed, or contraband. We find on the facts that Jaynes’ shakedown at the stationhouse was a legitimate and constituent part of the search of petitioner incidental to his lawful arrest.
Petitioner’s second contention that the seizure of the brown package was an item unrelated to the crimes for which he had been arrested, and thus invalid, ignores the fact that what was seized was marihuana, a contraband article, the possession of which was a crime. Contentions similar to those raised by petitioner were considered and rejected in Harris v. United States, supra, where the Supreme Court made this salient observation:
“This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime in committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime.” 331 U.S. at 154, 67 S.Ct. at 1103.
The Fifth Circuit in Collins v. United States, 289 F.2d 129, 130 (1961), expressly applied the
Harris
rule to sustain a warrantless search and seizure of an illegal firearm, stating that it was “not a significant consideration that the shotgun seized may have had no relation to the crime for which Collins was arrested.”
In its latest pronouncement, the Supreme Court emphasized “there must, of course, be a
nexus
— automatically
provided in the case of fruits, instrumentalities or contraband
— between the item to be seized and criminal behavior.” (Emphasis added). Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782, 792 (1967). The Fifth Circuit in United States v. Munroe, 421 F.2d 644, at p. 646 (1970), referred to the
Hayden
rule by stating:
“ . . . [Mjere evidence, as distinguished from fruits
or
instru
mentalities of a crime or contraband, may be seized, provided there is a nexus between the items seized and the criminal investigation being undertaken.”
In the case at bar, the nexus is automatically supplied by the contraband.
Petitioner’s claim that the cigarettes were seized on mere suspicion and at a time when Jaynes had no probable cause to suspect they were contraband, does not render the seizure invalid. A lawful arrest having been made, the law imposes no requirement of probable cause to seize contraband. “A crime was thus being committed in the very presence of the agents conducting the search. Nothing in the decisions of this Court give support to the suggestion that under such circumstances the law-enforcement officials must impotently stand aside and refrain from seizing such contraband material.”
Harris,
supra, 331 U.S. at 155, 67 S.Ct. at 1103. Again in Abel v. United States, 362 U.S. 217, 238, 80 S.Ct. 683, 697, 4 L.Ed.2d 668, 686 (1960), the Supreme Court held:
“When an article subject to lawful seizure properly comes into an officer’s possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for.”
In many cases the officers conducting a lawful search may suspect but not recognize an article to be contraband, but the validity of the seizure is not controlled by an officer’s knowledge of or familiarity with the prohibited article. Petitioner’s argument, therefore, that it is unreasonable to seize property unrelated to the crimes for which the arrest has been made, and without probable cause, has no validity in the instant situation.
The notion that in a search incident to lawful arrest for other crime, probable cause must still exist to seize contraband was accepted by the Supreme Court of Oregon in State v. Elkins, 245 Or. 279, 422 P.2d 250 (1966), and that case is authority for petitioner’s position. The Court’s rationale was based upon what we believe is an incorrect application of
Harris, Abel
and other controlling Supreme Court cases, a point forcibly made in the dissenting opinion of Justice Perry. We also decline to follow the district court’s ruling in United States v. Jones, 317 F.Supp. 856 (E.D.Tenn.1970), a case cited by petitioner, that upon the removal of an article from the person of an arrestee in a search incident to lawful arrest, the article may not be further examined without a search warrant, since it is no longer “within the immediate control” of the arrestee, making such further examination barred by
Chimel.
That view unduly restricts the purpose of an otherwise reasonable search and seizure and is contradicted by the very wording of
Chimel
which acknowledged there was “ample justification . for a search of the arrestee’s person
and
the area ‘within his immediate control’.” 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d 685 (Emphasis added).
B.
The Statute and Instructions
Petitioner complains that he was convicted without due process of law in violation o,f the Fourteenth Amendment to the Constitution because § 6846, Miss.Code Ann., makes the mere possession of marihuana a crime in the absence of criminal intent,
and further contends that, even though certain types of activity may be made subject to criminal penalties in the absence of specific criminal intent, such criminal statutes, in order to pass the test of constitutional validity, must provide only minor penalties for violation. Since the minimum penalty for violation of § 6866 was at the time of petitioner’s trial and
conviction a minimum of two years and a maximum of five years imprisonment plus a fine of not more than $2,000,
petitioner says the statute is thereby rendered unconstitutional. Petitioner also complains that a jury instruction given at the request of the state altogether omitted the element of criminal intent.
Petitioner made the same attack upon the constitutionality of the statute on his appeal to the Supreme Court o,f Mississippi, which affirmed in reliance upon United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922).
In support of his contention that the statute is unconstitutional, petitioner cites United States v. International Minerals & Chemical Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971); United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971); Robinson v. Calif., 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Lambert v. Calif., 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957); Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).
In response to petitioner’s attack upon the statute, respondent urges that its validity is upheld by United States v. Freed, supra; United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 84 S.Ct. 559, 11 L.Ed.2d 536 (1964); United States v. Balint, supra; and Shevlin-Carpenter Co. v. Minn., 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930 (1910).
After studying the authorities relied upon by the parties to support their respective positions, and after giving careful consideration to the opinion of the Supreme Court of Mississippi sustaining the constitutionality of the statute, Wright v. State, supra, we conclude that the cases cited by petitioner do not sustain his argument, and that the State Supreme Court correctly upheld the validity of the statute under the Fourteenth Amendment.
The obvious purpose of the statute under review is to control the traffic in drugs and protect the public against the dangers inherent in the indiscriminate use of such substances. United States v. Balint recognized the validity of statutory schemes designed to deal with this social problem, and there the Supreme Court held that in such cases criminal intent is not mandated by the Fourteenth Amendment as a necessary element of the crime, using this language;
“ . . . the state may in the maintenance of a public policy provide ‘that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.' Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se.” 258 U.S. at 252, 42 S.Ct. at 302.
Morissette v. United States, supra, did not involve such a police regulation, but dealt with a statute providing that “whoever embezzles, steals, purloins or knowingly converts” government property is punishable by a fine and/or imprisonment.
No exercise of the police power as in
Balint
or as here was involved in
Morissette.
Lambert v. Calif., supra, dealt with the felon registration ordinance of the City of Los Angeles. The Supreme Court overturned the ordinance because merely being present in the City of Los Angeles was sufficient to constitute a violation if one happened to have at one time been convicted of a felony in California, or committed an act elsewhere which under the law of California would have been a felony. Regarded by the Court as a mere law enforcement technique and a compilation of information already a matter of public
record, the ordinance could not stand against the Fourteenth Amendment in the absence of some requirement of knowledge of the duty to register on the part of persons affected by the ordinance, because it imposed a criminal penalty for conduct, without criminal intent or knowledge, and not considered blameworthy if engaged in by an average member of the community. The Court nevertheless recognized that criminal intent is not always a necessary element of crime:
“We do not go with Blaekstone in saying that ‘a vicious will’ is necessary to constitute a crime . . ., for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.” 355 U.S. at 228, 78 S.Ct. at 242.
It was further emphasized that the conduct prohibited by the Los Angeles ordinance was wholly passive and involved no affirmative act on the part of persons coming within its operation. Here, petitioner is not charged merely with the passive condition of “being” in a certain place or with occupying a “status” as in Robinson v. Calif., supra, but is charged with the affirmative act of possessing marihuana.
United States v. Freed, supra, is a ease in which the constitutionality of a federal statute prohibiting the possession of unregistered firearms of certain types was upheld even though criminal intent is not an element of the crime. The Court specifically following
Balint
and quoted extensively from that decision. United States v. International Minerals and Chemical Corp., supra, is no authority for petitioner’s position because the concern was with 18 U.S.C. § 834(f) which imposes criminal sanctions upon one who “knowingly violates” certain regulations.
As to the effect upon the validity of the statute of the rather harsh penalties imposed by § 6866, Miss.Code Ann., we are not persuaded that the nature of the penalty is absolutely determinative of the constitutional validity vel non of the statute. It is true, as observed by petitioner, that in
Morissette
the Supreme Court remarked that in criminal statutes dispensing with the element of criminal intent, penalties are usually relatively small and conviction does no grave damage to the reputation of one convicted of a violation. See 342 U.S. at 256, 72 S.Ct. 240. However, we do not agree that this is “-a significant part of the justification for dispensing with guilty intent as an element in strict liability public welfare offenses,” as contended by petitioner. On the contrary, the Minnesota statute upheld in
Shevlin-Carpenter Co.,
supra, made the offense a felony and provided for a fine of up to $1,000 or imprisonment not exceeding two years, or both, and in United States v. Freed, supra, violation of the statutes there in question carried a maximum penalty of ten years imprisonment or $10,000 fine, or both.
Petitioner, of course, has it within his power to avoid the harsh penalty of his original conviction by applying to the sentencing court for a re-sentence under the new legislation.
In view of the constitutionality of the statute, no discussion of the jury instructions given by the trial court is required. The extent to which conflict may have existed therein is of no moment in this present proceeding, and this may not be complained of.
For the foregoing reasons, the court is of the opinion that the petitioner is not entitled to the relief sought and his petition for writ of habeas corpus shall be accordingly dismissed.