Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Kolovsky, J.A.D.
Defendant Theodore Gibson and one Sydney King were convicted, after trial by jury, of selling heroin to Thomas Lyons in violation of R.S. 24:18-4, which provides:
"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 this chapter [the 'Uniform Narcotic Drug Law,' (Drug Law) R.S. 24:18-1 et seq. ]."
Lyons is a Newark policeman and was working as an undercover agent. There is no claim that the alleged sale was authorized under the statute. Rather, defendant Gibson denied
any participation in the sale and offered evidence in support of an alibi. By its verdict the jury found to the contrary and accepted Lyons' identification of Gibson as one of the sellers.
On this appeal by Gibson, he argues that the trial court erred in not charging the jury, although requested to do so, that one of the elements of the crime which the State had to prove was that Gibson "had an intent to commit the crime charged," "a state of mind to do the evil act which the statute proscribes." The quotations are from defendant's requests to charge.
It would have been improper to give the requested charge. A mens rea is not an element of the statutory offense here involved.
It is, of course, true that at common law "the constituents of a criminal offense * * * are an evil intention and an unlawful act." State v. Labato, 7 N.J. 137, 149 (1951).
"But it is within the competency of the lawgiver, in the common interest, to declare an act criminal irrespective of the knowledge or motive of the doer of the act. The Legislature may make the doing of the prohibited act criminal or penal, regardless of a corrupt or criminal purpose or even knowledge of the illegal character of the act; and in such case only the doing of the proscribed act need be shown. [citations omitted] The criminal mind is not essential where the Legislature has so willed. The doer of the act may be liable criminally even though he does not know the act is criminal and does not purpose to transgress the law." (Ibid., at p. 149)
We are satisfied that in enacting R.S. 24:18-4 the Legislature has made the sale of narcotics (unless it falls within listed exceptions not pertinent here) unlawful and criminal without regard to a criminal intent. See United States v. Balint, 258 U.S. 250, 42 S. Ct. 301, 66 L. Ed. 604 (1922) interpreting an analogous provision of the Federal Narcotic Act of 1914; see also Commonwealth v. Gorodetsky, 178 Pa. ...