Jefferson v. Sweat

• Decision Date: 27 July 1954
• Citation: 76 So.2d 494
• Parties: 54-2 USTC P 49,058, 55-1 USTC P 49,072, 46 A.F.T.R. 924 JEFFERSON ex rel. v. SWEAT.
• Court: Florida Supreme Court

Page 494

76 So.2d 494

54-2 USTC P 49,058, 55-1 USTC P 49,072, 46 A.F.T.R. 924

JEFFERSON ex rel. v. SWEAT.

Supreme Court of Florida, En Banc.

July 27, 1954.

On Rehearing Dec. 7, 1954.

M. H. Myerson and Walter G. Arnold, Jacksonville, for appellant.

Richard W. Ervin, Atty. Gen., Mark R. Hawes, Asst. Atty. Gen., and William A. Hallowes, III, Jacksonville, for appellee.

TERRELL, Justice.

August 27, 1953 appellant was arrested in Duval County with a Federal wagering stamp which he admitted to be his property and that he purchased it in July 1953. He was carried before a committing magistrate where a warrant was issued charging him with various offenses, among which was that 'on diverse days between the 31st of July and the 27th of August 1953 in Duval County, Florida, with being a common gambler and, therefore, a vagrant, contrary to the provisions of Section 856.02, Florida Statutes 1951 (F.S.A.).' Evidence was taken by the magistrate and appellant was bound over for trial by the Criminal Court of Record, Duval County. Appearance bond was fixed at $500.

Application was immediately made to the Circuit Court for habeas corpus, the writ was issued to which a proper return was made, copy of the warrant and commitment being attached to the return. There was an answer to the return which charged that appellant was illegally detained of his liberty and that Chapter 28057, Acts of 1953, was unconstitutional and void. At the hearing before the Circuit Court the validity of Chapter 28057 was upheld and appellant was remanded to the custody of the sheriff. We are confronted with an appeal from the order of remand.

Counsel urge six questions for adjudication but in our view the only question with which we are concerned is the constitutional validity vel non of Chapter 28057, Acts of 1953.

Sections (1) and (2) of Chapter 28057 are the only portions of the act that are involved in this case. Section (3) has to do with 'proof' at the trial which has not taken place, was not before the trial court and will not be discussed at this time. Sections (1) and (2) are as follows:

'1. The holding, owning, having in possession of, or paying the tax for a wagering occupational tax stamp issued by the Internal Revenue authorities of the United States shall be held in all the courts of this state as prima facie evidence against the person holding such stamp in any prosecution of such person for violation of the Gambling Laws of this state.

'2. In cases where the proper prosecuting officers shall produce said stamp or certified copy, the Grand Jury may indict the holder of such stamp or the proper prosecuting officer may file information against the holder of such stamp without further proof, charging such holder with the violation of the Florida Gambling Laws.'

Internal Revenue Code, Section 3290, 26 U.S.C.A., provides for the issuance of a special federal wagering stamp and Section 3291 requires the purchaser's name and his business or office address if he has one and his residence address. Section 3297 provides that the payment of any tax imposed under the act 'shall not exempt any person from any penalty provided by a law of the United States or of any State for engaging in the same activity, nor shall the payment of any such tax prohibit any State from placing a tax on the same activity for State or other purposes.' In this connection it is apposite to point out that the federal wagering stamp and the 10 per cent excise tax which follows are limited to bookmaking and lotteries for profit. As to Florida, the stamp is required for the conducting of bookmaking and lottery operations contrary to the statutes of this State.

Chapter 28057 was actuated by the Federal law authorizing the wagering stamp. Chapter 28057 was enacted at the 1953 session of the legislature and the federal wagering stamp law became effective November 1, 1951. This Court is committed to the doctrine that the State statute and the Federal statute should be read in pari materia. Atlantic Nat. Bank of Jacksonville v. Simpson, 136 Fla. 809, 188 So. 636. The objective of Chapter 28057, is that it makes the holding, owning, having in possession of, or paying the tax for a federal wagering occupational stamp prima facie evidence of violating the gambling laws of this State. When the stamp is produced it authorizes indictment by the grand jury or the proper prosecuting officer to file an information charging the holder with violating the gambling laws.

There is no provision of our State Constitution banning legislation of this character, so in civil and criminal proceedings the legislature is free to enact that one fact or set of facts may be presumptive or prima facie evidence of another. Such power is generally conceded. The extent to which the legislature may go in its exercise has provoked a great multitude of decisions. The general rule is that there must be a rational connection between the fact proved and the ultimate fact presumed so that the inference of one from proof of the other is not unreasonable and arbitrary. As long as the legislature leaves the accused a fair opportunity to make his defense in rebuttal and submit all facts to the jury, presumptions and rules of evidence so defined will be upheld. Jones Commentaries of Evidence (2nd Ed.) Vol. 2, Sec. 573, page 1060; Wooten v. State, 24 Fla. 335, 5 So. 39, 1 L.R.A. 819; Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; Shelton v. Coleman, Sheriff, 136 Fla. 625, 187 So. 266; and many others.

There are of course limitations to this rule of evidence under the due process clause. The fact or concurrence of facts which raise the presumption and shift the burden of proof, must have a fair relation to or material connection with the fact as to which the presumption is raised. In view of the limited purpose for which a Federal gambling stamp is secured, we cannot say that the legislature was arbitrary and unreasonable in providing that it be prima facie evidence of violating the law against bookmaking and lotteries. A gambling stamp certainly has a reasonable relation to gambling and if the holder did in fact secure it for framing to adorn his office or hang in the drawing room beside grandpa's picture or for other laudable purposes, he is at liberty to prove it and to remove the presumption that he secured it for gambling purposes.

On the other hand, if the legislature should enact that any woman caught smoking cigarettes in a public place after sundown would be prima facie guilty of selling moonshine if charged within 30 days, or any man caught wearing socks and tie to match at the family clan picnic would be prima facie guilty of cow stealing if charged within six months, any such act or acts would be stricken down because there is no rational connection between selling moonshine and smoking cigarettes, or cow stealing and wearing socks and tie to match.

As was settled by this court in Goode v. State, 50 Fla. 45, 39 So. 461: In a criminal case the establishment of a prima facie case does not take away from the defendant the presumption of innocence, but leaves that presumption to operate in connection with, or in aid of, any proofs offered by him or arising out of the evidence to rebut or impair the prima facie case made by the State. A circumstance aided by that presumption may so far rebut or impair the prima facie case as to render a conviction upon it improper. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528; Ogletree v. State, 28 Ala. 693. Although by statute certain facts are made presumptive evidence against the defendant in a criminal case, if he denies them and adduces evidence in rebuttal, the jury must be satisfied of his guilt beyond a reasonable doubt. State v. Rogers, 119 N.C. 793, 26 S.E. 142.

The decisions are legion which hold that within rational bounds the burden of proof may be shifted from the State to the defendant. The shift arises when the State proves enough to make it equitable for defendant to take the lead and rebut or explain what the State has proven. Such balancing of convenience or shifting the burden may aid the State and not work a hardship on defendant. Morrison v. California, 291 U.S. 82, 54 S.Ct. 28, 78 L.Ed. 664. The purchaser of a federal wagering stamp understands his motives better than any one else and if he is not engaged in bookmaking or lottery operations it would work no hardship on him to tell why he secured it.

Little need be said in response to appellant's charge that Chapter 28057, Acts of 1953, is too broad and general and covers too many offenses. We do not think it contemplates any more than Section 856.02, F.S.1951, F.S.A., which includes common gamblers and vagrants which have been held to be synonymous with professional gamblers. Bookmakers and lottery operators are the only class required to secure a federal wagering stamp but all classes of gamblers and vagrants are comprehended by Section 856.02, F.S.1951, F.S.A.

It is accordingly our view that Sections (1) and (2), Chapter 28057, Acts of 1953, are ample to withstand the assault on them based on constitutional grounds. For this and other reasons stated in the opinion, we think the possession of a gambling stamp constituted probable cause to hold petitioner under a detention warrant. No trial has taken place so the question of whether or not the possession of a gambling stamp, standing alone, absent evidence of corpus delicti being sufficient to convict, is not presented nor decided.

Affirmed.

ROBERTS, C. J., HOBSON and DREW, JJ., and EATON, Associate Justice, concur.

THOMAS and MATHEWS, JJ., dissent.

On Rehearing Granted.

MATHEWS, Justice.

This is an appeal from the final judgment in a habeas corpus proceeding.

Section 1 of Chapter 28057, Laws of Florida 1953, is as follows:

'The holding, owning, having in possession of, or paying the tax for a wagering occupational tax stamp issued by the Internal Revenue authorities of the United States shall...