In State v. Nelson, supra, 419, the same position was taken by the majority of this court, but in neither of these cases is any reason given why the arguments advanced in the federal cases are not convincing or why an interpretation should be given to a law passed in 1879 which the legislators at that time did not think of or allude to. The case of Commonwealth v. Gardner was not only contrary to the position taken by the federal courts but in its practical application has been greatly weakened by the subsequent decisions in Commonwealth v. Corbett, 307 Mass. 7, 29 N.E.2d 151, and Commonwealth v. Werlinsky, 307 Mass. 608, 29 N.E.2d 150. While in the Gardner case the Massachusetts court held (p. 375) that their statute provided "absolute and unconditional prohibition against the sale, gift, or loan of contraceptive drugs, medicines, or articles for that end," in the later cases it was held that notwithstanding the absolute prohibition in the language of the statute the seller of an article which could be used to prevent conception but also could be used to prevent the spread of venereal disease could not be convicted under the Massachusetts statute without proof that in selling the article he sold it with the intent that it be used to prevent conception. By these later decisions, the Supreme Court of Massachusetts not only read an exception into their statute not recognized in the Gardner case but did this in such a manner as to render the statute as a practical matter wholly nugatory so far as preventing the sale of certain kinds of contraceptive devices is concerned. It is difficult to understand that the legislatu
The court further holds that a conviction was not warranted in the absence of proof that the defendant knew what use the buyer intended to make of the article and there was no evidence that the sale was made with a view to use for any unlawful purpose. Commonwealth v. Corbett, 307 Mass. 7, 29 N.E.2d 151; Commonwealth v. Werlinsky, 307 Mass. 608, 29 N.E.2d 150. It is to be observed that the Massachusetts court distinguished State v. Arnold, 217 Wis. 340, 258 N.W. 843, wherein unlawful intent was permitted to be inferred from placing the article on sale in a vending machine located in a public toilet.
Therefore those courts required that there be shown "an intent * * * that the article * * * be used for illegal contraception." Tracy, 29 N.J. Super., at page 150; Youngs Rubber Corp. v. C.I. Lee Co., supra; United States v. One Package, supra; United States v. Nicholas, 97 F.2d 510 (2 Cir. 1938); Davis v. United States, 62 F.2d 473 (6 Cir. 1933); Commonwealth v. Corbett, supra; Commonwealth v. Werlinsky, 307 Mass. 608, 29 N.E.2d 150 ( Sup. Jud. Ct. 1940). However, some state courts with similar absolute statutes refused "to inject into their statutes such an exception," Tracy, 29 N.J. Super., at page 151, and held that the intent of the defendant is immaterial.
That brings us to the defendant's principal point. If, he argues, you find (as we do find) that the article is designed for two purposes — first, to prevent disease and, second, to prevent conception — then, since the first would lead to an acquittal and the second to a conviction, the presumption of innocence, not to speak of the presumption that the law has been obeyed, compel an acquittal. Commonwealth v. Werlinsky, 307 Mass. 608, 29 N.E.2d 150 ( Sup. Jud. Ct. 1940). The answer to the argument is simple.