Caffee v. State

• Citation: 148 P. 680,11 Okla.Crim. 485,1915 OK CR 42
• Decision Date: 14 May 1915
• Docket Number: A-2184.
• Parties: CAFFEE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

148 P. 680

11 Okla.Crim. 485, 1915 OK CR 42

CAFFEE v. STATE.

No. A-2184.

Court of Criminal Appeals of Oklahoma

May 14, 1915

Syllabus by the Court.

Existing rules of evidence may be changed at any time by the lawmaking power when exercised within constitutional limitations.

Statutes which undertake to make evidence of certain facts absolute or conclusive proof of guilt, are unconstitutional; those however, which merely declare statutory presumptions affecting the burden of proof are valid.

A statute, making the possession of more than a certain amount of intoxicating liquor prima facie evidence of an intent to violate provisions of the prohibitory law, is not unconstitutional as invading the province of the judiciary and depriving the accused of the presumption of innocence, or as making prima facie evidence of guilt a fact which has no relation to, or does not tend to prove, the criminal act.

Under a provision of the act of 1913, c. 26, declaring that the keeping in excess of a certain amount of intoxicating liquors shall be " 'prima facie evidence' of an intention to convey, sell or otherwise dispose of such liquors," evidence of such possession is sufficient to establish the unlawful intent, unless rebutted, or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof, but such evidence is competent and sufficient to justify a jury in finding a defendant guilty, provided it does in effect satisfy them of his guilt beyond a reasonable doubt.

The phrase "prima facie evidence" as used in the statute is such evidence as, in the judgment of the law, is sufficient to establish the fact, if it be credited by the jury, and, unless rebutted or the contrary proved, remains sufficient for that purpose.

Appeal from Superior Court, Muskogee County; Farrar L. McCain Judge.

George Caffee was convicted of violating the prohibitory law, and appeals. Affirmed.

Crump Crump & Garrett, of Muskogee, for plaintiff in error.

Chas. West, Atty. Gen., and C.J. Davenport, Asst. Atty. Gen., for the State.

DOYLE P.J.

On information filed in the superior court of Muskogee county, charging that on the 4th day of November, 1913, he did unlawfully have the possession of nine pints of whisky and one quart of whisky with the intention of selling the same, Geo. Caffee, the plaintiff in error, was convicted and sentenced to be confined in the county jail for 30 days and to pay a fine of $50 and the costs. The judgment and sentence was entered December 13, 1913. From the judgment an appeal was taken by filing in this court, on February 6, 1914, a petition in error with casemade.

The evidence shows that E. A. Maloney, a deputy sheriff, in serving a search warrant on the defendant's place of business, known as the "Busy Drug Store," 110 N. Second street, Muskogee, found two pints of whisky in a little safe and seven pints concealed in a wall case behind rolls of paper in the drug store, and a quart bottle, nearly full of whisky, on the prescription case.

The state introduced a certified copy of the record of the internal revenue collector's office, showing the payment of the special tax required of liquor dealers, "place, Busy Drug Store, by G. C. Caffee, 110 N. Second St., Muskogee, payment made August 7th, 1913."

The one witness introduced by the defendant, F. J. Kell, testified that he was a deputy collector of internal revenue for the district of Oklahoma; that he knows Geo. Caffee, and where his drug store is; that this drug store handles patent medicines and carries beef wine, Mareno, and patent medicines of that description such as the government requires the payment of the special tax; that where patent medicines or anything else is sold that requires the payment of the special tax, the license issued to a drug store is the same kind of license as that issued to a retail liquor dealer.

The court with other instructions, instructed as follows:

"You are instructed that, under the laws of the state of Oklahoma, the keeping in excess of one quart of any spirituous, vinous, fermented, or malt liquors, or of any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of 1 per centum of alcohol measured by volume, and which are capable of being used as beverages (except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States), is prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors. (Given and excepted to by defendant.)

[Signed] Farrar L. McCain, Judge."

Error is assigned on the exception taken to this instruction. Counsel for the plaintiff in error contend that the law upon which this instruction is based is unconstitutional, for the reasons stated in Ex parte Wilson, 6 Okl. Cr. 451, 119 P. 596. The doctrine of the Wilson Case has no bearing upon the question involved here. The statute there considered (section 4, c. 70, Session Laws 1911) made it a crime--

"for any person to have or keep in excess of one quart of spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor."

The instruction here given was based upon section 6, c. 26, Session Laws 1913, providing:

"Sec. 6. The keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States, or in any manner permitting any other person to have or keep any such liquors in or about his place of business, or any place of amusement, or recreation, or any public resort, or any clubroom; provided, however, that the foregoing provision of this section shall not apply to bonded apothecaries, druggist, or pharmacist, as to alcohol purchased by them pursuant to the rules and regulations promulgated by the Governor in accordance with the provisions of the laws of this state; or the keeping in excess of one gallon of spirituous, or one gallon of vinous, or more than one cask of malt liquors, or any imitation thereof, or substitute therefor; nor more than one cask of any liquor or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States, shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors; provided, further, that this section shall not be construed in any way to legalize the keeping of such liquors for unlawful purposes."

The courts hold that existing rules of evidence may be changed at any time by the lawmaking power when exercised within constitutional limitations. The Legislature has frequently changed the rules of evidence, and declared that certain facts, when shown, shall constitute prima facie evidence of guilt. With what intent a person keeps intoxicating liquors is always a question of fact for the jury, to be determined upon a consideration of all the evidence. In the determination of that question they are required by the statute to consider the keeping of a certain amount of intoxicating liquors as prima facie evidence of an unlawful intent. But that evidence may be rebutted by other evidence in the case, whether shown by evidence on the part of the defense, or by the state in connection with the evidence proving the possession. With such evidence, the jury must also take into consideration the presumption of the innocence of the accused until the contrary is proved beyond a reasonable doubt. It does not change the rule in all criminal cases that:

"Before a conviction can be had, the jury must be satisfied from the evidence beyond a reasonable doubt of the affirmative of the issue presented in the accusation that the defendant is guilty in the manner and form as charged in the indictment or information." 3 Rice on Ev. par. 259, and cases cited.

Says Wigmore:

"There remains a question which has no concern with the question of conclusive evidence, but has often been assimilated to it, and has received an undeserved importance

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