Commonwealth v. Barber

• Decision Date: 23 February 1887
• Citation: 10 N.E. 330,143 Mass. 560
• Parties: COMMONWEALTH v. BARBER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 560

10 N.E. 330

COMMONWEALTH v. BARBER.

Supreme Judicial Court of Massachusetts, Suffolk.

February 23, 1887

COUNSEL

Aug Russ, for defendent.

The provision of chapter 91, § 84, Pub.St., as amended by St.1884, c. 212, § 1, has been so amended, by striking out eight words in the middle of a sentence, that it now provides that whoever has in his possession a lobster less than 101/2 inches in length shall forfeit $5 for every such lobster; and in all prosecutions under this section the possession of any lobster not of the required length shall be prima facie evidence to convict.It goes without saying that these two propositions are directly in conflict with each other.No prosecutions can be maintained upon propositions which can be read in the same breath, without a pause, declaring that possession shall cause a forfeiture, and that in such prosecution the possession shall be prima facie evidence to convict.These propositions became law at the same instant of time, and the defendant has as great a right to the protection of that clause which enables him to prove his possession innocent as the government has to that clause which makes possession of itself conclusive.The language is precise and clear.There is no opportunity to reconcile the conflicting propositions by construction.There existed originally a single sentence, which then reconciled these conflicting declarations.The legislature has stricken out that which makes these two restrictions consistent.No other construction can be given which would produce consistency except to restore just what the legislature repealed.This of course, would be too bold an act of legislation to be attempted by any judicial tribunal.SeeCom. v Kimball,24 Pick. 366, 370.The legislation of the commonwealth affords many instances in which peculiar and artificial force and significance have been given to particular facts as evidence, both in civil and criminal cases, by the special provisions of different statutes.Many of these cases are collected in the opinion in Com. v. Williams, 6 Gray, 1, 6, 7.See, also, Holmes v. Hunt,122 Mass. 505, 516, 517.But no case can be found, except in this extraordinary instance, where the same fact, innocent in itself, has been declared to be both conclusive and presumptive evidence of guilt.SeeCom. v. Hall,128 Mass. 410, 412;Goshen v. Richmond, 4 Allen, 458.There is nothing left for the court but to enforce a lesson in legislation by declaring the whole section, so far as it relates to possession, to be absurd, unmeaning, and incapable of enforcement.

H.N. Shepard, Asst. Atty. Gen., for the Commonwealth.

OPINION

DEVENS J.

The case at bar is that of a complaint under Pub.St. c. 91, § 84, as amended bySt.1884, c. 212, § 1.The section originally providing a penalty upon one for having in his possession, "with intent to sell, either directly or indirectly," a lobster of less than a prescribed size, was amended by striking out the words, "with intent," etc.As thus altered it would read as follows:

"Sec. 84.Whoever sells, or offers for sale, or has in possession, a lobster less than ten and one-half inches in length, measuring from one extreme of the body, extended, to the other, exclusive of claws or feelers, shall forfeit five dollars for every such lobster; and in all prosecutions under this section the possession of any lobster not of the required length shall be prima facie evidence to convict."

The contention of the defendant is that no prosecutions can be maintained upon propositions which can be read uno flatu declaring that possession shall cause a penalty to be incurred, and that possession shall be prima facie evidence to convict; that these two propositions became law at the same instant of time, and that there is no resort except to declare the whole section, so far as it relates to the offense of possession, as unmeaning and incapable of enforcement.It may be that it was deemed by the legislature that this section might be construed as applying only to lobsters of the prohibited size taken within this state, and that it was intended the defendant should, by the prima facie evidence afforded by possession, be compelled to offer evidence that it was taken without the state, in order to...