Appeal
from Superior Court, Union County; M. H. Justice, Judge.
Brown
J., dissenting.
The
Legislature has power to pass statutes of local application
governing the liquor traffic, and to declare a misdemeanor
the keeping of spirituous liquors with intent to sell in a
certain county of the state.
Defendant
was charged with unlawfully and willfully keeping for sale
etc., spirituous liquors, contrary to the form of the
statute, etc. Upon a plea of not guilty, the state introduced
one J. A. Williams, who testified that on the night in
question witness and Mr. Bivens went up the road to see if
they could head the defendant off; that about a mile or two
from town they met him. He had two five-gallon kegs of corn
whisky, a one-half gallon jug, and one pint in a bottle, a
little over a mile from town. He went on the public road in a
top buggy. Whisky was covered over with a lap robe. Said he
got it up the country from a colored man, whom he did not
know. Said it did not belong to him; it belonged to some
other people; that he would tell who it belonged to when it
was necessary to do so; that he would prove it up. There was
other testimony of the same character. It was admitted that
the defendant had no license to sell liquor. He introduced no
testimony. Defendant requested the court, in writing, to
charge the jury "that, upon the whole evidence, you
cannot find the defendant guilty. The verdict should be not
guilty." This was refused. Defendant excepted. The court
charged the jury, among other things, as follows: "Under
the rules of evidence, in all cases where defendant is
charged with crime, it is the duty of the state to satisfy
the jury beyond a reasonable doubt of the defendant's
guilt. The statute under which the defendant is indicted
provides that if any person, other than licensed retail
dealers under state laws, shall keep in his possession
liquors to the quantity of more than one quart within said
county, it shall be prima facie evidence of his keeping it
for sale, within the meaning of this act. The state insists
that it has shown to you that the defendant had more than one
quart of liquor in his possession in said county of Union.
The state insists that makes a prima facie case of guilt
against the defendant, and that therefore it has shown to
you, under the rules of evidence prescribed by this statute
that the defendant is guilty. The law is that it is presumed
or, rather, it is a prima facie case-- that is, a case upon
first impression made out--nothing else appearing, that the
defendant had it for sale, if he is shown to have kept more
than one quart of liquor in his possession within the county
at one time. That is what the state insists upon. It insists
that it has shown you that the defendant had the liquor, and
that this statute is
applicable, and that it is your duty to find him guilty. The
defendant contends that, at the time the prosecuting witness
met him, that he stated that the liquor was not his; that he
gave no account of it, further than to say that it belonged
to some other parties. The state does not rely upon his
confession for a conviction in this case, but upon the fact
that the liquor was found in his possession, and upon the
statute. Taking this, and applying this rule of evidence, if
you find beyond a reasonable doubt that he had the liquor and
kept it for sale, you will return a verdict of not guilty; if
the state has not satisfied you upon all of the testimony,
you will return a verdict of not guilty." To this charge
the defendant excepted. A verdict of guilty. Motion for new
trial. Motion denied. Judgment and appeal.
Redwine & Stack, for appellant.
The
Attorney General, for the State.
CONNOR,
J. (after stating the facts).
The
defendant is indicted for violating the provisions of chapter
434, p. 749, Laws 1903, which provides that it shall be
unlawful for any person, etc., other than licensed retail
dealers, to sell, exchange, barter, or dispose of, for gain,
or to keep for sale, within the county of Union, any
spirituous, vinous, malt, and intoxicating liquors, etc.;
that if any person other than licensed retail dealers, under
state laws, shall keep in his possession liquor to the
quantity of more than one quart within this county, it shall
be prima facie evidence of his keeping it for sale, within
the meaning of this act.
The
defendant contends that the section of the statute under
which he was convicted is unconstitutional and void, for that
(1) it is an invasion by the legislative of the judicial
department of the government; (2) that it deprives the
defendant of the presumption of innocence, and puts upon him
the burden of showing that he is not guilty.
There
can be no serious doubt of the power of the Legislature to
change the rules of evidence, and to prescribe different
rules in different classes of cases, subject to well-defined
limitations. "Laws which prescribe the evidential force
of certain facts by enacting that upon proof of such facts a
given presumption shall arise, or which determine what facts
shall constitute a prima facie case against the accused
casting the burden of proof upon him of disproving or
rebutting the presumption, are not generally regarded as
unconstitutional, even though they may destroy the
presumption of innocence. An accused person has no vested
right in this or any other presumption or law of evidence or
procedure that the lawmaking power cannot, within
constitutional limits, deprive him of. The existing rules of
evidence may be changed at any time by legislative enactment.
But the legislative power must be exercised within
constitutional limitations, so that no constitutional right
or privilege of the accused is destroyed. He cannot be
deprived of a fair and impartial trial by a jury of his peers
according to the law of the land." McLain, Crim. Law, §
16; Com. v. Smith, 166 Mass. 370, 44 N.E. 503;
State v. Cunningham, 25 Conn. 195. Discussing a
statute in some respects similar to ours, the Supreme Court
of Massachusetts, in Com. v. Williams, 6 Gray (72
Mass.) 1, says: "Nor does it appear that the
establishment of this new rule of evidence is in any degree
the result of judicial instead of legislative action, or that
it does in any way infringe upon the indisputable right of
the accused to have his guilt or innocence ascertained, and
the charge made against him passed upon, by a jury. The
statute only prescribes, to a certain extent, and under
particular circumstances, what legal effect shall be given to
a particular species of evidence, if it stands entirely alone
and is left wholly unexplained. This neither conclusively
determines the guilt or innocence of the party who is
accused, nor withdraws from the jury the right and duty of
passing upon and determining the issue to be tried. The
burden of proof remains continually upon the government to
establish the accusation which it makes. *** The only purpose
and effect of the particular clause of the statute objected
to are to give a certain degree of artificial force to a
designated fact until such explanations are afforded as to
show that it is at least doubtful whether the proposed
statutory effect ought to be attributed to it, but the fact
itself is still to be shown and established by proof
sufficient to convince and satisfy the minds of the jurors.
*** Making out a prima facie does not change the burden of
proof. *** But if the government, in proving the delivery of
any quantity of spirituous liquor, in support of a
prosecution for an alleged violation of the law, prove also,
as it must almost necessarily do, as a part of the
transaction, the circumstances attending it, then those
circumstances immediately become evidence in the case, to be
weighed and considered by the jury; and although the naked
delivery would be prima facie evidence of the sale, and so,
indirectly, of the guilt of the accused, yet, this proof
being accompanied by evidence of the manner in which the
delivery occurred, and of the surrounding circumstances, he
is not to be convicted, unless, upon just consideration of
all the facts thus disclosed, and placed before the jury,
they are satisfied beyond a reasonable doubt of his
guilt." Board of Excise v. Merchant, 103 N.Y.
143, 8 N.E. 484, 57 Am. Rep. 705; People v. Cannon,
139 N.Y. 32, 34 N.E. 759, 36 Am. St. Rep. 668; Voght v.
State, 124 Ind. 358, 24 N.E. 680; Lincoln v.
Smith, 27 Vt. 328; Santo v. State, 2 Iowa, 165,
63 Am. Dec. 487; Black on Intox. Liq. 60. The Legislature of
this, and we presume every other state, has frequently
changed the rules of evidence,
and declared that certain facts or conditions, when shown,
shall constitute prima facie evidence of guilt. The power to
do so has always been sustained. By section 983 of the Code
it is made a "high misdemeanor," punishable by
imprisonment in the penitentiary not less than five years, to
sell liquor "found to contain any foreign properties or
ingredients poisonous to the human system." If such
liquors are found, upon analysis of "some known
competent chemist," to contain any poisonous matter,
"it shall be prima facie evidence against the party
making this sale." By section 1005, prohibiting the
carrying of concealed weapons off one's own premises, it
is declared that, if any person shall have about his person
any such weapon, such possession shall be prima facie
evidence of concealment. The construction of this statute has
been frequently before this court, but the power of the
Legislature has not in any case been questioned to prescribe
the rule of evidence, although the effect of it has been
frequently decided, as in State v. Gilbert, 87...
