State v. Vietor , 208 N.W.2d 894 ( 1973 )

MOORE, Chief Justice.

This is an original certiorari proceeding instituted by the State challenging the legality of respondent Judge’s ruling construing two sections of the Iowa Controlled Substance Act, enacted by the Sixty-Fourth General Assembly- in 1971. We sustain the writ.

On September 19, 1972 county attorney’s informations were filed in Johnson County District Court charging Jeffrey Lenox Kint (No. 5739), Jerrold Sies (No. 5738) and John Scott (No. 5717) with various and unrelated incidents of the crime of delivery of a schedule I controlled substance in violation of what is now designated section 204.401(1), The Code, 1973.

During October 1972 each defendant filed a demurrer alleging sections 204.-401(1) and the statute now designated section 204.410 are unconstitutional because they create two offenses and require an accused to prove he is not guilty of the greater offense; they shift the burden of proof in violation of due process; they abridge an accused’s right to a jury trial; they abridge an accused’s right to freedom from self-incrimination and because section 204.401 includes an unconstitutional assumption an accused is not an accomodator.

As material here section 204.401(1) provides :

“Except as authorized by this chapter it is unlawful for any person to * * * deliver * * * a controlled substance * * *.

“a. (1) A substance classified in Schedule I or II which is a narcotic drug, is guilty of a public offense and upon conviction shall be punished by imprisonment in the penitentiary for not to exceed ten years and by a fine of not more than two thousand dollars.”

Section 204.410 provides:

“Any person who enters a plea of guilty to or is found guilty of a violation of section 204.401, subsections 1 or 2, may move for and the court shall grant a further hearing at which evidence may be presented by the person, and by the prosecution if it so desires, relating to the nature of the act or acts on the basis of which the person has been convicted. If the convicted person establishes by clear and convincing evidence that he delivered or possessed with intent to deliver a controlled substance only as an accomodation to another individual and not with intent to profit thereby nor to induce the recipient or intended recipient of the controlled or counterfeit substance to become addicted to or dependent upon the substance, the court shall sentence the person as if he had been convicted of a violation of section 204.401, subsection 3.”

Section 204.401(3) makes possession of a controlled substance, subject to the enumerated exceptions therein, unlawful. As material here it provides:

“ * * * Any person who violates this subsection is guilty of a misdemean- or, and upon conviction shall be punished by imprisonment in the county jail for not to exceed one year, or by a fine of not more than one thousand dollars or both such imprisonment and fine. * * • * . All or any part of a sentence imposed pursuant to this section may be suspended and the person placed upon probation under such terms and conditions as the court may impose including the active participation by such person in a drug treatment, rehabilitation or educational program approved by the court.”

The State’s resistance to the demurrers denied each ground of the alleged unconstitutionality of the two statutes involved. The thrust of the State’s resistance was, and is here, that section 204.401(1) creates the offense and section 204.410 establishes only a postconviction procedure.

By agreement of all parties the three demurrers were submitted together to respondent Judge. On November 8, 1972 he filed identical “Ruling on Demurrer and Orders” in each case.

Respondent Judge held section 204.-401(1) and section 204.410 create two of-

fenses, a felony and a misdemeanor which he defined as:

“1. The felony offense of delivery of a controlled substance, with intent to profit thereby or to induce the recipient of the controlled substance to become addicted to or dependent upon the substance.

“2. The misdemeanor offense of delivery of a controlled substance only as an accomodation to another individual and not with intent to profit thereby nor to induce the recipient of the controlled substance to become addicted to or dependent upon the substance.”

He held the two sections operate to relieve the State of the burden of proving to a jury beyond a reasonable doubt an essential element of the felony offense, namely an accused’s intent to profit by the delivery of the controlled substance or to induce the recipient to become addicted to or dependent upon the controlled substance. He further held the statutes required an accused to prove the negative of these issues and deprived the accused of a jury trial in respect thereto, thus violating an accused’s right to due process of law.

Respondent Judge did not hold the sections totally void. He did not sustain the demurrers. He stated and held the unconstitutional infirmities of the statutes to be fatal to the prescribed manner of trial and burden of proof, but remain valid insofar as they define the felony and misdemeanor offenses. He concluded: “At the trial of this case the burden will rest upon the State to prove to the jury beyond a reasonable doubt all essential elements of the offense charged.”

We have granted the State’s petition for a writ of of certiorari which alleges respondent Judge acted illegally, in each of the now three consolidated cases, in construing the two Code sections together and in requiring the State to prove additional elements in the pending charges.

I. If respondent Judge correctly construed the two Code sections it necessarily follows section 204.410 is unconstitutional. The Sixth Amendment to the United States Constitution and Article I, Section 9 of the Iowa Constitution guarantee an accused the right to a jury trial. The Due Process Clause protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Re Winship, 397 U.S. 358, 364, 375, 90 S.Ct. 1068, 25 L.Ed.2d 368. Proof of an essential element of a charged crime may not be shifted to an accused. Stump v. Bennett, 8 Cir., 398 F.2d 111, cert. den., 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466; State v. Galloway, Iowa, 167 N.W.2d 89. These well-established legal principles, however, have application only in the trial of and proof of the essential elements of the crime charged. Therefore the primary and decisive question now presented is the proper construction to be given the two Code sections involved.

II. The general rules of statutory construction are well established. The primary rule is the court must ascertain and give effect to the intention of the legislature. Jahnke v. Incorporated City of Des Moines, Iowa, 191 N.W.2d 780, 787; In Re Estate of Millers, Iowa, 159 N.W.2d 441, 443. In discovering legislative intent we consider the language used in the statute, the objects sought to be accomplished, the evils and mischief sought to be remedied and place a reasonable construction on the statute which will best effect its purpose rather than one which will defeat it. Crow v. Shaeffer, Iowa, 199 N.W.2d 45, 47 and citations.

In State ex rel. Turner v. Koscot Interplanetary Inc., Iowa, 191 N.W.2d 624, 629, we say:

“The legislature is free to enact any law provided it is not clearly prohibited by some provision of the Federal or State Constitution! It is not for the judicial branch of government to determine whether any legislative enactment is wise or unwise. And every reasonable presumption must be indulged in support of a controverted Act, any doubts being resolved against the challenging party. We must also look to the object to be accomplished, evils sought to be remedied, or purpose to be subserved in the interpretation of a statute, according to it that reasonable and liberal construction which will best serve to attain such object rather than one which will defeat it. (Citation).”

In construing statutes, the court searches for the legislative intent as shown by what the legislature has said rather than what it should or might have said. McKillip v. Zimmerman, Iowa, 191 N.W.2d 706, 709; Shriver v. City of Jefferson, Iowa, 190 N.W.2d 838, 839.

“The legislature is in the exercise of its very proper power and duty in defining crime and prescribing the method of procedure for its punishment.” State ex rel. Fletcher v. District Court, 213 Iowa 822, 835, 836, 238 N.W. 290, 296. Courts may not, under the guise of construction, extend, enlarge or otherwise change the terms of a statute. Davenport Water Co. v. Iowa State Commerce Com’n., Iowa, 190 N.W.2d 583, 594, 595; Radosevich v. City of Ottumwa, Iowa, 173 N.W.2d 522, 525; Bergeson v. Pesch, 254 Iowa 223, 227, 117 N.W.2d 431, 433 and citations.

III. With these rules in mind we turn our attention first to section 204.-401(1). It seems clear the legislature prescribes as unlawful the intentional delivery of the controlled substance under schedule I. It contains all the essential elements of the crime of delivery. Section 204.101(8) defines delivery as the actual, constructive, or attempted transfer from one person to another of a controlled substance. Section 204.401(1) makes no reference to the purpose or motive of the deliverer. It of course provides for punishment if the crime is committed. Punishment is not an essential element to be considered on trial of the charge.

The legislature may forbid doing of the act and make its commission a crime without regard to intent of the doer. Whether a criminal intent or particular purpose is an essential element of a statutory offense is to be determined as a matter of construction from the language of the act, in connection with its manifest purpose and design. State v. Wharff, 257 Iowa 871, 875, 134 N.W.2d 922, 925, and citations.

We construe section 204.401(1) as creating a separate and distinct crime without regard to the purpose or motive of the deliverer. As we point out infra, section 204.410 relates only to punishment.

IV. Counsel for the three named defendants have filed well-prepared briefs and arguments in support of the respondent Judge although they argue both sections involved are unconstitutional and their respective demurrers should have been sustained. As we understand their arguments they claim unconstitutionality results from the provisions of section 204.-410.

The legislature has said therein it applies only to a “person who enters a plea of guilty to or is found guilty of a violation of section 204.401, subsections 1 or 2.” It provides at defendant’s request evidence may be presented of the “nature of the act or acts on the basis of which the person has been convicted.”

Section 204.410 defines no crime. It adds no essential elements to the crime defined in section 204.401, subsections 1 or 2. It clearly does not envision further inquiry into guilt or innocence.

We conclude section 204.410 establishes only a postconviction sentencing procedure by which the convicted person may, if he so desires, offer evidence in mitigation of sentence. The constitutional rights asserted by each defendant as grounds for demurrer relate to a trial involving guilt or innocence.

In addition to the wording and provisions of the section itself our conclusion is supported by this statement in the Drug Abuse Study Committee’s final report to the legislature just prior to the enactment of the Iowa Controlled Substances Act:

“Section 410 is not a part of the Uniform Controlled Substances Act. In philosophy, it is patterned somewhat after section 204.20, subsection 5. The purpose of section 410 is to allow courts to sentence less severely than would otherwise be required persons who are technically guilty of violating subsections 1 or 2 of section 401, if the offense was in fact an accommodation to another person (for example, an individual who has two marijuana cigarettes giving or offering one to another individual) and the convicted person is not a 'drug pusher’ in the usual sense of that term. The determination whether or not this is the case is made by the court in a proceeding which is in the nature of a postconviction hearing. If a convicted person wishes to avail himself of the lighter penalties provided under this section, it is his responsibility to request such proceedings and to show that his offense was in the nature of an accommodation and not drug trafficking.”

We believe our rationale is to some extent analogous to that expressed in State v. Lynch, Iowa, 197 N.W.2d 186, 190, where we say:

“We hold it was clearly the duty of defendant to prove he was excused from complying with the prohibition of the statute. If an exception is material in arriving at the definition of the crime, it is generally held the State has the burden of showing the exception does not apply because it is then one of the essential elements of the offense. However, where the exception merely furnishes an excuse for what would otherwise be criminal conduct, the duty devolves upon the defendant to bring himself within the exculpatory provision. (Citations).”

We hold the November 8, 1972 “Ruling on Demurrer and Orders” of respondent Judge were erroneous and illegal. Each demurrer should have been overruled.

Writ sustained, orders annulled, each criminal cause is remanded to the trial court.

MASON, LeGRAND, REES and HARRIS, J J., concur. UHLENHOPP, McCORMICK, RAWL-INGS and REYNOLDSON, JJ., dissent.