PEOPLE v. WOODY (1963)

The defendants, who are Navajo Indians, severally were charged with the unlawful possession of Lophophora, commonly known as Peyote,¹ i. e., a violation of § 11500 of the Health and Safety Code; pleaded not guilty; contended that their possession thereof occurred in the exercise of their religion, as members of the Native American Church of the State of California, and that the statute making such possession unlawful abridged their constitutionally guaranteed right to the free exercise of religion as declared in the First Amendment to the United States Constitution, and in Article 1, Section 4 of the California Constitution; were tried by the court without a jury; were convicted and sentenced to imprisonment in the state prison; were granted probation for two years, which suspended execution of the sentence; and appeal from the judgment of conviction.

Peyote is a product of the plant Lophophora williamsii, a small spineless cactus grown in the Rio Grande Valley in Texas and in northern Mexico; usually is in the form of dried buttons, which are the top of the cactus, and sometimes is ground up; along with its principal constitutent, mescaline, now is categorized as an hallucinogen, because of its hallucinatory effect; and is consumed by chewing the buttons or drinking a tea made therefrom, which extracts the mescaline. The effect of such consumption upon the human system is manifold. Ordinarily it produces two stages; in the first, it acts as a stimulant, causing wakefulness with physical and mental exhilaration; and in the second, as a depressant, causing an intoxication with accompanying visions and hallucinations.

The use of peyote, depending upon the amount consumed, because of its mescaline content, causes vomiting; sweating; tremors; elevation of blood pressure; flushing of the face; partial skin anesthesia; dilation of the pupils of the eyes; increased salivation; mental anxiety; an intoxication productive of hallucinations; hallucinatory symptoms sometimes similar to those produced in people suffering from schizophrenia or dementia praecox, which at times are paranoid in nature; and other hallucinations or visions with changing color, geometric patterns, animals, and human beings. The use of an excessive amount of mescaline results in death by way of respiratory failure due to paralysis. Its lethal dose is comparable in amount to that of other chemical compounds

Peyote also contains Trimethoxyphene-thylamine which, in small doses, has a tendency to relax the muscles; in large doses causes a contraction and spasm of the intestines; and among other things, may result in diarrhea.

A pharamacologist called by the defendants as a witness testified that peyote may be classified as a dangerous drug. By § 11001 of the Health and Safety Code it is classified as a narcotic within the meaning of that term as used in Division 10 of that code, which includes § 11500 thereof prohibiting the possession of narcotics, except upon written prescription. The pharmacologist testified that peyote ‘should not be classified as a narcotic,’ which he described as a substance that alleviates pain and produces hypnosis or sleep, because it does not produce these effects. It is not habit forming from a physiological standpoint, viz., the body does not require its continued use to forestall painful withdrawal symptoms.

The Native American Church is a religious organization of Indians. There are no prerequisites to membership; no records thereof are kept; includes anyone who may have attended one of its services; and estimates respecting the number of members vary from 30,000 to 250,000. The religion of this church has been referred to as the peyote Religion or Peyotism; has no recorded theology; at the present time, would appear to combine some of the teachings of Christianity, the belief that peyote embodies the Holy Spirit, and the conviction that those who partake thereof enter into contact with the Deity; and includes a sacramental use of peyote in a ceremony referred to as a ‘meeting.’ Such a meeting is held in an enclosure; takes place from sundown on Saturday to sunrise on Sunday; is open to anyone who may wish to attend; has been attended by other than Indians; is in charge of a person known as a ‘leader’; and, although there is no recorded or prescribed ritual, generally involves the saying of prayers, singing, the consumption of peyote in sufficient quantities to produce an hallucinatory state, and the use of symbolic paraphernalia such as a fan, staff, eagle bone whistle, rattle, fire, smoke, and a prayer cigarette. The ceremony is followed by a breakfast. Ordinarily the ‘leader’ is the person who sponsors the ‘meeting’; furnishes the peyote; and bears whatever expense is involved. He is in charge of and conducts the ritual as he wishes.

The Indians who are members of this church ritualistically partake of peyote as a sacrament; as an act of devotion for favors received; to gain supernatural assistance; to enable them to enter into contact with the Deity; and under the belief that the mystic experience obtained thereby gives them meaning and guidance in their daily lives.

The Indians also use peyote non-ritualistically as a cure for illness or disease, regardless of its kind or cause. They have referred to it as a ‘health restorer.’ This belief stems from their concept that it is supernatural in essence and effect. However, it possess no medicinal curative power.

At about 4:00 a. m. on Saturday, April 28, 1962, the defendants Woody, Anderson and Nez, together with other Indians, were participating in a peyote ritual;² were meeting in a hogan made of railroad ties; had consumed peyote during the night; to members of the sheriff's force observing them through cracks between the railroad ties, seemed to be in a stupor; and became the subjects of an investigation as suspected possessors of peyote. Upon interrogation, the officers learned from the defendant Woody that he had furnished the peyote used in the instant ceremony; that the defendants Anderson and Nez also were the owners of additional peyote which was located in their respective automobiles parked nearby; that Woody had purchased the peyote from a man in Arizona which he said was very difficult to obtain; and that the other two defendants had obtained the peyote found in their automobiles from him.

Woody sponsored the meeting in question to celebrate the purchase of a new automobile; to solicit Divine protection from accident while driving it; and as an act of thanksgiving for his good fortune.

When the officers entered the hogan they advised its occupants that they were law enforcement officers, and were there because of a report that those attending the meeting were using peyote. Thereupon, one of the men in attendance handed the officers a gold-colored portrait frame encasing what appeared to be a photostatic copy of Articles of Incorporation of the Native American Church of the State of California filed with the Secretary of State. In the paragraph of these articles listing the purposes for which the corporation was formed appears the following:

‘That we further pledge ourselves to work for unity with the sacramental use of peyote and its religious use.’

The three defendants were arrested and charged with violating § 11500 of the Health and Safety Code.

At the trial their attorney stated:

‘We further stipulate that at the time and place of the arrest that there was a religious ceremony going on and peyote was for use in the religious ceremony;’

to which the district attorney replied:

‘I agree to that stipulation. I have no evidence to the contrary and based upon that, I so stipulate.’

As defenses, the defendants urged the unconstitutionality of the statute prohibiting their use of peyote in a religious ceremony, and the lack of any criminal intent. In support of the first defense they introduced the testimony of an anthropologist who testified that he had made a study of the beyote religion, attended peyote ceremonies, and partook of peyote as a participant therein; described the religion, its history, and the significance of peyote as a part thereof; detailed the ritualistic ceremony in question; and related his observations respecting the effect of the use of peyote on the members of the Church and on himself, which would support the conclusion that, as used by them, it was harmless, nonhabit forming, and without residual results. Subsequently, in response to a motion by the prosecution, the testimony aforesaid was stricken upon the ground that it was immaterial. The defendants also offered in evidence dissertations, pamphlets, and other writings respecting the use of peyote as a religious practice, authored by the witness, other anthropologists, or other writers. These were denied admission or were admitted and stricken.

The defense of lack of criminal intent was based on the contention that the articles of incorporation of the Native American Church of the State of California authroized its members to use peyote; that the defendants believed such to be a fact; and that they had no knowledge of its narcotic character.

On appeal the defendants reiterate these defenses, contending that the statute is unconstitutional; that the evidence does not support a finding of criminal intent; and also urge that the trial court erred in striking the testimony of the anthropologist and refusing to admit or striking from the record the dissertations, pamphlets, and other writings offered by them.

The evidence stricken by the court or denied admission, was offered in support of the defendants' contention that the subject statute, insofar as it prohibited their use of peyote as a religious practice, prohibited the free exercise of their religion; abridged a fundamental right; and was unconstitutional.

As indicated by his memorandum opinion, the trial judge concluded that peyote was a toxic drug; that enactment of the statute prohibiting its possession was a valid exercise of the police power, for the protection of the public health, safety, and general welfare; that, pursuant to the rule applied in Reynolds v. United States, 98 U.S. 145, 165, 166, 25 L.Ed. 244, 249, the incidental abridgment of the defendants' freedom of religious worship, by preventing the ceremonial use of peyote in the practice of their religion, did not render the statute unconstitutional; and, for this reason, evidence respecting its ceremonial use as a part of the defendants' religion was immaterial.

In the Reynolds case, i. e., Reynolds v. United States, supra, 98 U.S. 145, 25 L.Ed. 244, the United States Supreme Court upheld a statute prohibiting polygamy even though, as applied to the members of a church who engaged in such as a religious practice, it prohibited the free exercise of their religion; declared that, by the constitutional provision guaranteeing freedom of religious worship, ‘Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order’ (Reynolds v. United States, supra, 98 U.S. 145, 164, 25 L.Ed. 244, 250); and held that those who made polygamy a part of their religion were not thereby excepted from the operation of the statute. (In accord see: Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 301, 33 L.Ed. 637.)

The rule thus applied was expressed more fully in Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 1218, where the court considered the effect of the First Amendment to the United States Constitution upon legislative authority and said:

‘The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. * * *’ (In accord: Sherbert v. Verner, 374 U.S. 398, 407, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965; Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct. 1144, 1146, 6 L.Ed.2d 563.)

The subject statute does not abridge the defendants' right to believe that peyote is of divine origin. Its prohibition is limited to the ceremonial use thereof as a religious practice.

The trial court applied the rule in Reynolds v. United States, supra, 98 U.S. 145, 25 L.Ed. 244, and deemed its inquiry at an end when it concluded that the use of peyote was a proper subject of police power regulation.

However, the defendants contend that the rule in question has its limitations; that police power legislation may not abridge the constitutional guarantee of freedom of religious practice unless the evil to which such legislation is directed presents ‘a grave and immediate’ danger, in support of which they cite the decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; that a statutory infringement upon a fundamental right will be declared unconstitutional where the object to be achieved can be obtained by a statute more limited in scope which does not so infringe, as stated in Shelton v. Tucker, 364 U.S. 479, 484, 81 S.Ct. 247, 252, 5 L.Ed.2d 231, and Wollam v. City of Palm Springs, 59 A.C. 291, 301, 29 Cal.Rptr. 1, 379 P.2d 481; and that the offered evidence refused or stricken by the trial court was pertinent to an application of these limitations. This contention is well taken.

In determining the constitutionality of a police power enactment, attacked upon the ground that it abridges a fundamental right, the court may consider facts established upon judicial inquiry (United States v. Carolene Products Co., 304 U.S. 144, 153, 58 S.Ct. 778, 784, 82 L.Ed. 1234; Weaver v. Palmer Bros. Co., 270 U.S. 402, 410, 46 S.Ct. 320, 321, 70 L.Ed. 654; Abbey Land & Improvement Co. v. San Mateo, 167 Cal. 434, 437, 139 P. 1068, 52 L.R.A., N.S., 408; Matter of Application of Miller, 162 Cal. 687, 696, 124 P. 427), as well as matters appearing on the face of the statute, and those of which it takes judicial notice. (Quong Wing v. Kirkendall, 223 U.S. 59, 64, 32 S.Ct. 192, 193, 56 L.Ed. 350; Nicol v. Ames, 173 U.S. 509, 516, 19 S.Ct. 522, 526, 43 L.Ed. 786; Abbey Land & Improvement Co. v. San Mateo, supra, 167 Cal. 434, 437, 139 P. 1068, 52 L.R.A.,N.S., 408.) On appeal, the court will ‘make an examination of the evidence to ascertain independently whether the right has been violated’ (Niemotko v. State of Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 95 L.Ed. 267; Feiner v. People of State of New York, 340 U.S. 315, 316, 71 S.Ct. 303, 304, 95 L.Ed. 267.) However, its office in the premises is not to resolve conflicts in the evidence, but to evaluate such in relation to applicable rules of law, and for this purpose will accept those facts which the trial judge found to be true (Feiner v. People of State of New York, supra, 340 U.S. 315, 316, 71 S.Ct. 303, 304, 95 L.Ed. 267), or which are ‘admitted or shown by undisputed, clear, and satisfactory evidence in the record of the particular case.’ (Abbey Land & Improvement Co. v. San Mateo, supra, 167 Cal. 434, 437, 139 P. 1068, 1069, 52 L.R.A.,N.S., 408; Feiner v. People of State of New York, supra, 340 U.S. 315, 316, 71 S.Ct. 303, 304, 95 L.Ed. 267.)

Under the circumstances, we have reviewed the whole record in the case at bar, including the testimony and exhibits offered by the defendants and refused or stricken upon the ground of immateriality.³ The defendants, through the brief of amicicuriae which they have adopted, state that this evidence is before this court. In stating the facts herein, we have accepted this suggestion. Consequently, any alleged error in the ruling denying admission of the subject evidence was not prejudicial.

Peyote, because of its toxic, deleterious, intoxicating and and hallucinating effects, is a proper subject of regulation under the police power, i. e., the inherent power of the state within constitutional limits to promote the health, safety, and general welfare of society. (Reetz v. People of State of Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; Gray v. State of Connecticut, 159 U.S. 74, 15 S.Ct. 985, 40 L.Ed. 80; Mugler v. State of Kansas, 123 U.S. 623, 8 S.Ct. 273, 295, 31 L.Ed. 205; Sandelin v. Collins, 1 Cal.2d 147, 153, 33 P.2d 1009, 93 A.L.R. 956; In re Gray, 206 Cal. 497, 499, 274 P. 974; Ex parte Hallawell, 155 Cal. 112, 99 P. 490; Rosenblatt v. California St. Bd. of Pharmacy, 69 Cal.App.2d 69, 73, 75, 158 P.2d 199; State v. Big Sheep, 75 Mont. 219, 243 P. 1067, 1073.) A statute prohibiting possession thereof without a prescription, as a regulatory measure to restrict its use, will be upheld if any state of facts of which the court may take judicial cognizance, whether known or which reasonably could be assumed, affords support for the conclusion that it reasonably is related to the promotion of the public health, safety, or general welfare. (United States v. Carolene Products Co., supra, 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234; Southern Pac. Co. v. Railroad Commission, 13 Cal.2d 89, 121, 87 P.2d 1055; Wholesale T. Dealers Bureau of Southern Cal. v. National etc. Co., 11 Cal.2d 634, 646, 647, 650, 82 P.2d 3, 118 A.L.R. 486; Redevelopment Agency of City & County of San Francisco v. Hayes, 122 Cal.App.2d 777, 806, 266 P.2d 105.)

The deleterious effects of peyote upon the user, as heretofore noted, in themselves warrant a prohibition of its unprescribed use. Added to these are the multiform dangers incident to its hallucinatory effects; the undeniable inability of its users, while under its influence, to meet present day demands upon those who use the streets and highways for their own safety and that of others; the paranoid state occasionally accompanying mescaline intoxication,⁴ which accounts for recorded instances where the user was ‘attacked with a fit of madness, rushing backward and forward, trying to kill people, and tearing his clothes to pieces';⁵ the appeal of hallucinogens to those whose uncontrolled desire for adventure directs them to the abnormal and to that segment of our society whose conduct persistently reflects the bizarre, as evidenced by current expressions of grave concern, of which we may take judicial notice, warning against and purportedly exposing the dangers attendant upon the unsupervised use of these substances;⁶ its place in a well known pattern that commences with the use of a non-habit forming substance, such as marijuana, becomes the door through which the thrill-seeker pursues his quest, and leads eventually to narcotic addiction; although not physiologically habit forming, because of the pleasant and satisfying sensation adduced through hallucination, its affinity to psychological addiction is evident;⁷ and its deleterious effect upon the mind and body accentuated by a compulsively induced frequent use undoubtedly would be detrimental to health.

The defendants urge, however, that the dangers incident to the unprescribed use of peyote are not grave and immediate and, for this reason, a statute prohibiting such may not abridge their fundamental right to freedom of religious worship, relying upon the rule applied in West Virginia State Board of Education v. Barnette, supra, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628, where the court said that: ‘* * * freedoms of speech and of press, of assembly, and of worship * * * are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect’; and held that a regulation requiring school students to salute the flag was not directed to the prevention of such a grave and immediate danger as required compliance therewith by members of a religious sect who believed that a flag salute was a forbidden pagan practice.⁸ The rule thus stated also has been applied to situations involving an infringement of the right to freedom of speech and the press. (Bridges v. State of California, 314 U.S. 252, 261, 62 S.Ct. 190, 193, 86 L.Ed. 192; Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470; American Civil Liberties Union of Southern Cal. v. Board of Education, 55 Cal.2d 167, 173, 175, 10 Cal.Rptr. 647, 359 P.2d 45.) In some instances the principle incorporated therein has been generalized in the statement that: ‘* * * only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms.’ (National Ass'n for Advance. of Colored People v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 341, 9 L.Ed.2d 405; Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480.) None of the foregoing cases consider situations of danger comparable to those attendant upon the unprescribed use of peyote.

The issue whether a given danger is grave and immediate involves “a question of proximity and degree' that cannot be completely captured in a formula.' (Bridges v. State of California, supra, 314 U.S. 252, 261, 62 S.Ct. 190, 193, 86 L.Ed. 192.) Nevertheless, the requirements in the premises are satisfied if there is ‘reasonable ground to believe that the evil to be prevented is a serious one’ and ‘that the danger apprehended is imminent.’ (Concurring opinion by Justice Brandeis in Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 648, 71 L.Ed. 1095.) Tested by standards guiding reasonable men, the seriousness of the evil attendant upon the unprescribed use of peyote is apparent. The mere fact that conduct, or the result thereof, which creates a danger is anticipatory, when its likelihood is a matter of reasonable certainty, does not classify it as remote, rather than immediate, within the rule heretofore stated. Protective legislation need not be postponed until the evil it seeks to prevent has become flagrant. (Murphy v. California, 225 U.S. 623, 32 S.Ct. 697, 698, 56 L.Ed. 1229.)

Police power statutes constitutionally upheld even though abridging the free exercise of religious practices include those prohibiting polygamy (Reynolds v. United States, supra, 98 U.S. 145, 25 L.Ed. 244; Davis v. Beason, supra, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637); prohibiting the sale of papers including religious papers, by children (Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, 652); requiring parents to furnish needed medical treatment for their children, regardless of their religious belief in opposition thereto (Craig v. State, 220 Md. 590, 155 A.2d 684, 689); prohibiting possession of peyote (State v. Big Sheep, supra, 75 Mont. 219, 243 P. 1067); and prohibiting fortune telling although done by the minister of a particular religious sect as a religious practice. (State v. Neitzel, 69 Wash. 567, 125 P. 939, 43 L.R.A.,N.S., 203.)

The defendants contend that there is no grave and immediate danger attendant upon possession of peyote for ceremonial use by members of the Native American Church; that the object of the instant statute could be achieved without prohibiting possession for such use; that, for this reason, the allinclusive scope of the statute, absent any exclusionary provision permitting possession for a religious use, is not reasonably related to the object which it seeks to achieve; and, as a consequence, insofar as the statute abridges their right freely to practice their religion, it is unconstitutional.

This contention is based upon the proposition that inclusion of a religious practice within the prohibitory provisions of a police power statute is permissible only where necessary to protect against a grave and immediate danger; that such legislation, insofar as it abridges the free practice of religion, will be declared unconstitutional if its object can be achieved without such abridgement; and the state must demonstrate that there are no alternative forms of regulation which will combat the evils that the statute seeks to prevent without infringing upon ‘First Amendment’ rights. (Sherbert v. Verner, supra, 374 U.S. 398, 407, 83 S.Ct. 1790, 1795–1796, 10 L.Ed.2d 965; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 893, 9 L.Ed.2d 929; National Ass'n for Advance. of Colored People v. Button, supra, 371 U.S. 415, 438, 83 S.Ct. 328, 341, 9 L.Ed.2d 405; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231; Wollam v. City of Palm Springs, supra, 59 A.C. 291, 301, 29 Cal.Rptr. 1, 379 P.2d 481; American Civil Liberties Union of Southern Cal. v. Board of Education, supra, 55 Cal.2d 167, 179, 10 Cal.Rptr. 647, 359 P.2d 45.)

In support of their position the defendants rely strongly upon their showing that the ceremonial use of peyote by members of their church is not harmful; that its hallucinatory effect upon those who partake thereof at such a ceremony subsides before the meeting is concluded; and that no Indian has become addicted to its use. However, as heretofore noted, the church has no recorded theology; the ritual at each meeting, although somewhat standardized, is subject to the will of the ‘leader’; and there are no restrictions respecting those who may attend such, their frequency of attendance, or the amount of peyote they may use. From evidence offered by the defendants it appears that the hallucinatory effect from peyote consumption is variable; is dependent upon the amount consumed; and also is related to the attitude, individual personality, cultural background, and educational environment of the consumer.⁹ The evidence shows that each of those participating in the ritual of the Native American Church consume between 4 and 8 buttons at a meeting. On the other hand, it also is shown that in some Indian tribes the amount individually consumed at a meeting is 30 to 40 buttons.¹⁰ As the amount of peyote to be consumed at a meeting and the persons attending such are not subject to regulation, there is no assurance that the dangerous effects from its use, which heretofore have been noted, may not result from participation in a religious ceremony by those who claim to be members of the Native American Church.

In addition, the law enforcement problems incident to an exclusionary provision which would permit possession of peyote for ceremonial use are manifold. Exclusion often is a means to evasion. (In re Hixson, 61 Cal.App. 200, 206, 214 P. 677.) The difficulties attendant upon determining whether a violation has occurred, and proof thereof, when met by a claim that possession was for an excluded purpose are obvious. Even among the Indian tribes peyote is used nonritualistically, e. g., as a health restorer. The ‘First Amendment’ guarantees do not apply to such a use. The purpose of possession, absent a current use, is a fact committed to the undisclosed intention of the possessor. A claim to membership in the Native American Church would be easy to make and hard to disprove. In the case at bar, the prosecution stipulated that the peyote which was the subject of the instant offenses was for use in the religious ceremony being held at the time of the defendants' arrest because, as stated by the deputy district attorney, there was ‘no evidence to the contrary.’ However, it is significant that the peyote in possession of the defendants Anderson and Nez was in their automobiles; consisted not only of buttons, which was the form in which it had been used in the ceremony, but also of a ground, powder-like substance, in a jar, and 10 small green cactus plants; and it would appear there was no immediate need therefor as the meeting allegedly was nearing completion.

As a general rule, subject to constitutional limitations, the means used to effect a police power purpose, when substantially related thereto, is a matter committed to legislative determination. (People of State of New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 29 S.Ct. 10, 12, 53 L.Ed. 75; Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 361, 49 L.Ed. 643; Mugler v. State of Kansas, supra, 123 U.S. 623, 8 S.Ct. 273, 296–297, 31 L.Ed. 205; Wholesale T. Dealers Bureau of Southern Cal. v. National etc. Co., supra, 11 Cal.2d 634, 646–647, 650, 82 P.2d 3, 118 A.L.R. 486; Pacific Coast Dairy v. Police Court, 214 Cal. 668, 674, 8 P.2d 140, 80 A.L.R. 1217; Justesen's Food Stores v. City of Tulare, 43 Cal.App.2d 616, 621, 111 P.2d 424; Ex parte Murphy, 8 Cal.App. 440, 445, 97 P. 199.) Thus, legislation prohibiting a generally designated practice or use has been sustained over a contention that regulation which would exclude a specific unobjectionable practice or use included within the general prohibition would be sufficient to prevent the evil at hand. (Princ v. Commonwealth of Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645, 652; United States v. Carolene Products Co., supra, 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234; Purity Extract & T. Co. v. Lynch, 226 U.S. 192, 33 S.Ct. 44, 46, 57 L.Ed. 184; Otis & Gassman v. Parker, 187 U.S. 606, 23 S.Ct. 168, 169, 170, 47 L.Ed. 323; see also Murphy v. California, supra, 225 U.S. 623, 32 S.Ct. 697, 699, 56 L.Ed. 1229—stating that a court will not inquire whether there is a substantial relationship between prohibitive legislation and its application to a specific place or business.) The substantial relationship between such legislation and the object sought to be achieved thereby is demonstrated where the exclusion of a specific practice or use presents adverse administrative or law enforcement problems. (United States v. Carolene Products Co., supra, 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234; In re Sumida, 177 Cal. 388, 393, 170 P. 823; In re Hixson, supra, 61 Cal.App.200, 205–212, 214 P. 677.)

We conclude that § 11500 of the Health and Safety Code is an exercise of the police power directed to the prevention of a grave and immediate danger; that the means used to effect such purpose is substantially and demonstratively related thereto; that its interference with the exercise of a religious practice is a ‘tangential’ result therefrom, rather than the direct purpose thereof (See American Civil Liberties Union of Southern Cal. v. Board of Education, 59 A.C. 215, 225, 28 Cal.Rptr. 700, 379 P.2d 4);¹¹ and, thus, is not an unconstitutional infringement upon the defendants' right to the free exercise of their religion.

The defendants also contend that the evidence is not sufficient to support a finding that they had knowledge of the narcotic character of peyote; that, relying upon the rule applied in People v. Winston, 46 Cal.2d 151, 161, 293 P.2d 40, proof of such knowledge is essential to a conviction; that they believed they had a right to use peyote in the exercise of a religious practice; and that their possession thereof under this belief is a complete defense to the charges against them.

The decision in People v. Winston, supra, 46 Cal.2d 151, 158, 161, 293 P.2d 40, applies the rule restated in People v. Gory, 28 Cal.2d 450, 456, 170 P.2d 433, 437 which, as a prerequisite to conviction, requires proof that the defendant had ‘knowledge that the facts exist which bring the act’ of which he is accused ‘within the provisions' of the statute declaring such to be a crime. However, it is not essential to a conviction that the defendant have knowledge of the unlawfulness of such act. The defendants at bar did not assert a belief that the substance in their possession was something other than peyote; they knew that it was peyote; and they knew of its hallucinatory effects. Furthermore, although not prerequisite to a conviction, the evidence at hand supports an inference that the defendants knew that possession of peyote was contrary to law. Upon being advised by the officers that they were under investigation for the illegal possession of peyote, they immediately presented to the officers a copy of the Articles of Incorporation of their church which declared that ‘we [the incorporators] * * * pledge ourselves to work for unity with the sacramental use of peyote * * *.’ It would appear that the defendants contemplated using this declaration as the basis for an asserted belief that it gave them some right to use peyote which otherwise was prohibited, and for this reason they had made a copy of these Articles readily available. The subject Articles of Incorporation conferred no right upon the defendants to violate the law. The mere fact that the incorporators named therein declared their intention to do so, and the Secretary of State filed the same in his office, conferred no such right. If the defendants believed that they had a right to possess the peyote for ceremonial use as a religious practice they were acting under a mistake of law and not of fact. It is no defense to a charge of possession of peyote that the possessor did not know that its possession was forbidden (People v. Johnson, 147 Cal.App.2d 417, 305 P.2d 82), or that he believed he had a right to possess such for religious purposes. (Cleveland v. United States, 329 U.S. 14, 20, 67 S.Ct. 13, 16, 91 L.Ed. 12; Reynolds v. United States, supra, 98 U.S. 145, 167, 25 L.Ed. 244, 250.) Furthermore, the court was entitled to reject the bona fides of the claim that the defendants were acting under the belief that their use was not prohibited. There is no merit to the contentions in question.

The judgment is affirmed.

FOOTNOTES

1.  Section 11540 of the Health and Safety Code, which prohibits the cultivation, and in northern Mexico; usually is in the etc., of lophophora, expressly states that

2.  Contrary to usual practice, the subject ceremony apparently commenced on a Friday night rather than a Saturday, and was being concluded on Saturday morning rather than Sunday.

3.  At the trial the ‘important’ objection to the exhibits was that ‘they are incompetent, irrelevant and immaterial’; on appeal no contention is made respecting their admissibility for other reasons; and our consideration thereof should not be interpreted as a holding that the ruling of the trial court might not be sustained on other grounds.

4.  Defendants' Exhibit ‘D’: ‘Twenty Years of Peyote Studies' by Weston La Barre, printed in Current Anthropology (Vol. 1, p. 45.)

5.  Defendants' Exhibit ‘I’: ‘The Peyote Cult’ by Weston La Barre (1959) (p. 18.)

6.  These expressions of concern appear in a recent editorial in the American Medical Association's Archives of Psychiatry; in an article entitled ‘The Strange Case of the Harvard Drug Scandal’ (Andrew T. Weil, published in the Nov. 5, 1963 edition of Look Magazine (p. 38); in Vol. 82, No. 17, p. 86 of Time Magazine, under the title ‘Instant Mysticism’; In M.D.—Medical News Magazine, July 1963 Edition, pp. 188–191; and in other periodicals distributed nationally. Although a court may not take judicial notice of specific facts related in these articles, the expressions of concern in the premises is a matter of common knowledge and may be considered. (Ogilvie v. Aetna Life Insurance Co., 189 Cal. 406, 415, 209 P. 26, 26 A.L.R. 116; Lynch Meats of Oakland, Inc. v. City of Oakland, 196 Cal.App.2d 104, 109, 16 Cal.Rptr. 302; Redevelopment Agency of City & County of San Francisco v. Hayes, supra, 122 Cal.App.2d 777, 806, 266 P.2d 105.)

7.  Omer C. Stewart in his ‘Ute Peyotism—A study of a Cultural Complex’ (1948), Defendants' Exhibit ‘F’ (p. 4) records the story of the introduction of peyotism to the Ute Indians by a Sioux Indian named Sam Roan Bear who, after establishing the religion, returned to his own tribe but came back periodically to bring new supplies of peyote which he sold to the new members; allegedly collected all of the money, fancy bead work, baskets and buckskin of the Ute members; prompted them to sell their cattle and sheep to pay him; and when he got all of the money the members possibly could raise, he left and did not return. It may be concluded that the Indians who acceded to such demands were the victims of a compulsion to obtain peyote akin to that of addiction. (See also Exhibit ‘J’—The Delphian Quarterly, vol. 37, No. 2, p. 7—‘Peyotism—A Modern Indian Religion’, by Omer C. Stewart, regarding conflicts between reports from non-anthropological and anthropological sources; and the existence of abuses.

8.  In Braunfeld v. Brown, 366 U.S. 599, 604, 81 S.Ct. 1144, 1146, 6 L.Ed.2d 563 it is stated that the court in the Barnette case ‘was careful to point out’ that “the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind.” The instant statute does not impose upon the defendants any religious belief.

9.  Exhibit ‘D’: (p. 45) ‘Twenty years of Peyote Studies' by La Barre.

10.  Exhibit ‘I’: ‘The Peyote Cult’ by Weston La Barre (p. 49) footnote 101; ibid. 65.

11.  Cf. McGowan v. State of Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 1113–1115, 6 L.Ed.2d 393 where the general principle was applied conversely in considering the constitutionality of legislation incidentally assisting a particular religious sect.

COUGHLIN, Justice.

GRIFFIN, P. J., and GERALD BROWN, J., concur.