State v. Lapointe

• Decision Date: 05 February 1924
• Parties: STATE v. LAPOINTE.
• Court: New Hampshire Supreme Court

123 A. 692

STATE

v. LAPOINTE.

Supreme Court of New Hampshire. Hillsborough.

Feb. 5, 1924.

Exceptions from Superior Court, Hillsborough County; Branch, Judge.

Henry Lapointe was convicted of illegal possession of intoxicating liquor, as a second offense, and brings exceptions. New trial granted.

Appeal from a conviction in a municipal court upon a complaint for the illegal possession of intoxicating liquor, second offense. Trial by jury and verdict of guilty.

Subject to exceptions, the superior court, Branch, J., denied the defendant's motion for a directed verdict, based upon the contention that the statutory provision that possession of intoxicating liquor shall be prima facie evidence of illegality is unconstitutional, and charged the jury that if they found possession was proved they must also find that it was illegal; there being no other evidence upon the latter question.

Ferdinand Farley, County Solicitor, of Manchester, and J. Blanche Newhall, of Concord, for the State.

Timothy F. O'Connor and Myer Saidel, both of Manchester, for defendant.

PEASLEE, J. The section of the statute making possession of intoxicating liquor an offense, unless the liquor was lawfully procured, also provides that—

"The possession of any intoxicating liquor within this state shall be prima facie evidence of a violation of this section." Laws 1919, c. 99, § 4.

At the outset the question arises as to what is here intended by the words prima facie evidence. Do they mean evidence which compels a finding, in the absence of other evidence (Copp v. Henniker, 55 N. H. 179, 205, 20 Am. Rep. 194), or was it the purpose to make such evidence sufficient to invoke the judgment of the jury (State v. Forbes, 75 N. H. 306, 73 Atl. 929, Ann. Cas. 1912A, 302)? It is contended by the state that the expression was designed to convey the former meaning; and that consequently there was no error in the instruction that if the jury found possession to be proved beyond a reasonable doubt they must also find that it was illegal (there being no other evidence upon the question), and so finding must also find the defendant guilty. The defendant assumes that the state's interpretation of the statute is correct, and challenges the constitutionality of such legislation.

It is to be presumed that the Legislature intended to confine its action within constitutional bounds. If a statute is open to two interpretations, one making it constitutional and the other not, it will ordinarily be presumed that the former was the meaning intended. Telephone Co. v. State, 63 N. H. 167, 169, and cases cited.

The question is thus presented whether a statute enacting that in a criminal case fact A shall be conclusive evidence of fact B, in the absence of other evidence as to fact B, can be sustained. Such statutes have been upheld in several states. The reasons upon which these decisions have frequently been based are those stated in a recent opinion of the Supreme Court of the United States: "That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed.

"If a legislative provision not unreasonable in itself prescribing a rule of evidence, in either criminal or civil cases, does not shut out from the party affected a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue, there is no ground for holding that due process of law has been denied him."

Mobile, etc., Co. v. Turnipseed, 219 U. S. 35, 43, 31 Sup. Ct. 136, 138 (55 L. Ed. 78, 32 L. R. A. [N. S.] 226, Ann. Cas. 1912A, 463).

The above statement is sound when used as a test for violation of the federal Constitution by state legislation relating to procedure, as that has only to do with due process and equal protection of law. The question of the defendant's rights under the state Constitution is not involved. So far as the federal Constitution is concerned, it "is within the acknowledged power of every Legislature to prescribe the evidence which shall be received, and the effect of that evidence, in the courts of its own government." Fong Yue Ting v. United States, 149 U. S. 698, 729, 13 Sup. Ct. l016, 1028 (37 L. Ed. 905); Adams v. New York, 192 U. S. 585, 599, 24 Sup. Ct. 372, 48 L. Ed. 575; Hawes v. Georgia, 258 U. S. 1, 42 Sup. Ct. 204, 66 L. Ed. 431.

But the application of this reasoning has not been limited to cases arising under the federal Constitution. It has been adopted in instances where the issue of the defendant's rights under the provisions of state Constitutions (all of which are in substance like our own, 3 Wig. Ev. § 2252, note 3) were involved. It has accordingly been held that such a statute does not deprive the defendant of his right to a trial by jury, nor otherwise invade the province of the court, and that it does not impair the defendant's right to insist that the state must prove the charge laid against him. People v. Adams, 176 N. Y. 351, 68 N. E. 636, 63 L. R. A. 406, 98 Am. St. Rep. 675; State v. Sattley, 131 Mo. 464, 33 S. W. 41; State v. Tincher, 81 W. Va. 441, 94 S. E. 503; Diamond v. State, 123 Tenn. 348, 131 S. W. 666; Wooten v. State, 24 Fla. 335, 5 South. 39, 1 L. R. A. 819; Gillespie v. State, 96 Miss. 856, 51 South. 811, 926; State v. Kline, 50 Or. 426, 93 Pac. 237; Hawes v. State, 150 Ga. 101, 103 S. E. 170.

In some of the cases (State v. Sattley, supra; State v. Tincher, supra) reliance is also put upon the similarity to the presumption of guilt from the recent possession of stolen goods. The law on the latter subject, rightly applied, is against rather than for such conclusions.

"But if we look at the question as one of principle we shall see that, in the nature of the case, evidences of possession * * * should be submitted to the conscience of the jury, and they should decide, as a question of fact, not of law, whether the defendant is the guilty person or not." Bish. Cr. Pro. (2d Ed.) § 740.

"As a rule of law I take it that the government must make out its case against the prisoner—it bears the burden of proof—and the evidence of recent possession is to be weighed and passed upon by the jury like any other testimony." Id., § 741, note 2.

The foregoing cases very generally purport to be founded upon the earlier decisions in New England and New York. One of the first cases upon the subject, and the leading one, is Commonwealth v. Williams, 6 Gray. (Mass.) 1. The statute was essentially like the one here under consideration. The charge to which exception was taken was that delivery "was prima facie evidence of a sale by said defendant, upon which the jury might find a verdict against him unless explained or controlled by other evidence." The instruction presents no such question as that argued here. The jury were told that they might, not that they must, convict. The language of the opinions—both that of the court and the dissenting opinion of Thomas, J.—fail to clearly draw this distinction. Merrick, J., speaking for the court, said:

"Nor does it appear that * * * 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 * * * 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." 6 Gray (Mass.) 4, 5.

What the "certain degree of artificial force" was does not clearly appear. Taking the decision as a whole, it does not hold or state that the evidence is conclusive unless explained. It makes a case for the jury. In the subsequent application of the decision in that state, care has been taken not to go beyond that. Commonwealth v. Wallace, 7 Gray (Mass.) 222; Commonwealth v. Rowe, 14 Gray (Mass.) 47; Commonwealth v. Barber, 143 Mass. 560, 10 N. E. 330; Commonwealth v. Smith, 166 Mass. 370, 44 N. E. 503; Opinion of Justices, 208 Mass. 619. 94 N. E. 1044, 34 L. R. A. (N. S.) 771.

State v. Cunningham, 25 Conn. 195, has also been cited frequently to sustain the main contention. In that case it was held that the statute left the question to the jury. The charge being thought to imply that they must find, rather than that they might, the verdict was set aside. It is really an authority against rather than for the state's contention, although certain parts of the opinion are somewhat inconsistent with the conclusion reached.

In State v. Hurley, 54 Me. 562, the statute was that the primary fact should be "sufficient evidence" of the secondary. The law was upheld without decision or discussion of what the language meant. That...