People v. Kayne

• Decision Date: 10 November 1938
• Docket Number: No. 134.,134.
• Parties: PEOPLE v. KAYNE.
• Court: Michigan Supreme Court

286 Mich. 571

282 N.W. 248

PEOPLE

v.KAYNE.

No. 134.

Supreme Court of Michigan.

Nov. 10, 1938.

Proceeding by the People against Samuel A. Kayne for violation of a parking ordinance of the City of Detroit. From an order dismissing the complaint and warrant, the People appeal in the nature of petition for writ of mandamus to require the trial court to set aside the order of dismissal and proceed with the trial.

Order of dismissal reversed and writ of mandamus granted.Appeal from Recorder's Court for City of Detroit, Traffic and Ordinance Division; George T. Murphy, Judge.

Argued before the Entire Bench.

Raymond J. Kelly, Corp. Counsel, and Nathaniel H. Goldstick and Arthur Barkey, Asst. Corp. Counsels, all of Detroit, for the People.

Harry J. Soloman, of Detroit, for appellee.

McALLISTER, Justice.

Defendant was charged with violating the parking ordinance of the city of Detroit. On February 24, 1938, a police officer discovered an automobile parked on the north side of Cadillac Square in violation of the municipal ordinances and regulations of the city of Detroit, prohibiting parking opposite a building entrance and in a bus stop zone. The officer attached a so-called parking violation ticket to the motor vehicle, indicating the nature of the violation of ordinance and notifying the owner to appear in court on February 25, 1938, to answer a complaint which would then and the be filed against him. Thereafter, the officer consulted the records of the secretary of State and ascertained that the registration plates of the motor vehicle were issued to defendant. A complaint was filed in the Recorder's court for the city of Detroit, charging defendant with parking his motor vehicle in violation of the municipal regulations. The defendant appeared in court on the date specified by the parking ticket, and, when arraigned, stood mute. A plea of not guilty was entered for him by the court.

On the trial of the case, it appeared that according to the records of the secretary of State, defendant was the owner of the car which had been parked in violation of the ordinance. Testimony was also introduced showing that on January 14, and 15, of 1938, which dates were taken at random, in 87.6% of the cases where automobiles has been parked in violation of the ordinance, the owner of such automobile had himself committed the violation; that in 8% of the cases, such violation had been committed by immediate members of the owner's family; that in 4.4% of such cases, the violation was committed by some person other than the owner himself or an immediate member of his family. There was no testimony in this case as to who had actually parked the car in violation of the ordinance.

At the conclusion of the proofs, defendant's counsel moved to dismiss the commplaint upon the ground that plaintiff had failed to establish that defendant actually had committed the parking violation. The trial court granted the motion to dismiss the complaint and warrant, holding that the ordinance in question was unconstitutional, and, in effect, that the city could not maintain its action unless it affirmatively showed that defendant himself had parked the car in violation of the ordinance. The case is here on appeal in the nature of a petition for a writ of mandamus to require the trial court to set aside the order of dismissal and to proceed with the trial.

The ordinance before us for consideration reads as follows: ‘In any proceeding for violation of the parking provisions of this chapter, being sections 53 to 65 inclusive, of Chapter 196 of the Compiled Ordinances of the City of Detroit for the year 1936, and amendments thereto, or any rule or regulation adopted pursuant to the provisions of said chapter the registration plate displayed on such motor vehicle shall constitute in evidence a prima facie presumption that the owner of such motor vehicle was the person who parked or placed such motor vehicle at the point where such violation occurred.’ (Chapter 196, Comp. Ordinances of the City of Detroit, § 65 [b]).

A similar question came before this court in People v. Hoogy, 277 Mich. 578, 269 N.W. 605, where we held that a traffic ordinance was unconstitutional.

In the Hoogy Case, the ordinance there in question read as follows [page 606]: ‘In any proceeding for violation of the provisions of Ordinance No. 115-C of the ordinances of the city of Detroit, and all amendments thereto, commonly known as the ‘Traffic Ordinance,’ or any rule or regulation adopted pursuant to the provisions of said ordinance, the registration plate displayed on such motor vehicle shall be evidence which standing alone and unexplained shall be deemed sufficient proof that the owner of such motor vehicle was then operating same. If at any hearing or proceeding the owner shall testify under oath or affirmation that he was not operating the said motor vehicle at the time of the alleged violation, and if at such hearing or proceeding the owner shall submit himself to an examination as to the person, who at the time was operating the same, and will reveal the identity of such person, if known to him, then the evidence arising from the registration plate that the owner of such motor vehicle was then operating the same, shall not be deemed sufficient proof that the owner of such motor vehicle was then operating the same and the burden of proof shall be shifted to the complainant.'

In the Hoogy Case, it was held that the ordinance was unconstitutional for the reason that it required the person prosecuted to appear in court and to be a witness in proceedings brought against him; that such provision deprived the accused of due process of law, compelling him to be a witness in proceedings wherein he was being prosecuted, and was, therefore, in violation of art. 2, § 16, of the Constitution of 1908 of the State of Michigan, which provides: ‘No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.’

There is, however, a distinction to be drawn between People v. Hoogy, supra, and the instant case. In the Hoogy Case, it was provided by ordinance that the owner of the vehicle was presumed to be operating the same at the time of the violation of an ordinance, unless he testified under oath that he was not operating the said vehicle at the time of the alleged violation. The owner was also required to submit himself to an examination as to the person who was operating the vehicle at such time, and, in order to overcome the presumption of the ordinance, was required to reveal the identity of such person, if known to him. In the instant case, it is not required that the defendant or owner of the vehicle testify under oath that he was not operating the motor vehicle at the time of the violation of the ordinance; nor is it required that such owner submit to an examination as to the person who actually was operating the vehicle at such time; and, further, it is not required by the ordinance in the instant case that such owner disclose the name of the violator of the ordinance, if known to him. The ordinance under consideration only provides that the registration plates displayed on the motor vehicle of an automobile parked in violation of the ordinance shall constitute in evidence a prima facie presumption that the owner was the person who parked or placed such motor vehicle at the point where such violation occurred. The ordinance does not compel the accused to testify or submit to an examination in order to make his defense.

In any criminal case, the burden of proof is upon the State to prove the guilt of the defendant beyond a reasonable doubt; a person accused of violation of a criminal law is presumed to be innocent, until he is proved guilty. Such axioms of law, however, do not exclude the use of rules of evidence provided for, by statute or ordinance, which place upon a defendant the burden of going forward with the evidence after the ‘prima facie evidence’ is introduced.

Statutes frequently provide for prima facie presumptions in criminal prosecutions, until the defendant has adduced evidence in his behalf.

‘In this state many instances may be cited where by statutory enactment proof of something other than the direct act charged constitutes prima facie evidence in prosecutions for violations of the statute. The following are examples taken at random: Prefixing the word ‘doctor’ or its abbreviations to one's name is prima facie evidence of practicing medicine (Comp.Laws 1929, § 6745); possession of the carcass or skin or any portion thereof of a protected animal out of season is prima facie evidence of the unlawful killing of the animal by such possessor (Comp.Laws 1929, § 6221); prohibited appliance for use in fishing found in a boat house on the shore of a lake is prima facie evidence of its use in violation of the statute (Comp.Laws 1929, § 6380); possession of policy or pool books is prima facie evidence of their use by the possessor in the form of gaming prohibited (section 306, Act No. 328, Pub.Acts 1931); and likewise possession of unstamped boots or shoes showing the use of imitation leather, if such is the fact, is prima facie evidence of intent to sell the same (section 290, Act No. 328, Pub.Acts 1931). The validity of these and many other like statutory provisions can be sustained only on the ground that prima facie evidence means competent evidence and nothing more.' People v. Licavoli, 264 Mich. 643, 250 N.W. 520, 527.

In cases involving prima facie presumptions, when the evidence of defendant is introduced, the burden of proof is always upon the State to prove guilt beyond a reasonable doubt. If such evidence is introduced, the presumption disappears, as a rule of law, and the case is in the jury's hands free from any rule. 5 Wigmore more on Evidence (2d Ed.) § 2491. If no such evidence is introduced by defendant, the jury, nevertheless, have the right to find him...