State v. Lewis
| Decision Date | 12 June 1923 |
| Docket Number | 5272. |
| Citation | 216 P. 337,67 Mont. 447 |
| Parties | STATE v. LEWIS. |
| Court | Montana Supreme Court |
Appeal from District Court, Hill County; Charles A. Rose, Judge.
Mike Lewis was convicted of maintaining a common nuisance by conducting a place where intoxicating liquors were sold, and he appeals. Affirmed.
Victor R. Griggs, of Havre, for appellant.
W. D Rankin, Atty. Gen., Frank Woody, Asst. Atty. Gen., and Max P Kuhr, of Havre, for the State.
The defendant, Lewis, was charged by information with the crime of maintaining a common nuisance by conducting and maintaining "a place where intoxicating liquors were sold, kept and bartered." Upon his plea of not guilty he was tried by a jury which found him guilty as charged, leaving punishment to be fixed by the court. He was sentenced to 30 days' imprisonment in the county jail, and fined $250. His appeal is from the judgment.
The information is predicated on the provisions of section 11066 of the Revised Codes of 1921, whereby any place where intoxicating liquor is kept or sold in violation of the Prohibition Act is declared to be a common nuisance, and any person maintaining same is declared to be guilty of a misdemeanor, and upon conviction thereof, subject to a fine of not less than $100 nor more than $500 and imprisonment for not less than 30 days nor more than 6 months. It is admitted that the defendant maintained "The Bank Saloon" in the city of Havre at the time of the offense charged, and the proof is abundant that intoxicating liquors were there sold by the defendant and his servants. The conflict in the evidence was by the jury resolved against the defendant and the adequacy of the proof to warrant the verdict is not challenged. From our examination of the record, we think the evidence was entirely sufficient to warrant the jury's conclusion.
But one question is presented, viz.: Was it error for the court to give the following instruction to the jury:
"You are instructed that the possession of liquors by any person not legally permitted under the law to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished or otherwise disposed of in violation of the provisions of law, but it shall not be unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed and used."
The instruction is attacked because it shifts the burden of proof to the defendant to show that liquors found in his possession were lawfully acquired, possessed, and used. The instruction simply follows the plain language of the statute. Section 11079, Rev. Codes 1921. This brings us to a consideration of the question whether it is within the legislative power to thus shift the burden of proof in a criminal prosecution.
Defendant's objection to the court's instruction assumes that the statute was intended to apply in criminal prosecutions; and this being so, it is argued that it is beyond the power of the Legislature to shift the burden of proof upon the defendant. The crime alleged is that of maintaining a nuisance, and section 11066, defining this class of nuisance, states the ingredients of the offense to be (1) a place where (2) intoxicating liquor is (3) manufactured, sold, kept, or bartered, (4) in violation of the act. The state introduced ample evidence to prove each element of the offense charged. While the state relied on section 11079 as indicated by the court's instruction to supply the element of guilty intent, yet as appears from the evidence, it did not rest its case on the mere naked possession of intoxicating liquor. Under the facts, the instruction was entirely unnecessary.
Section 11079 is a part of chapter 9 of the Laws of the Extraordinary Session, 1921, and is an exact replica of section 33 of title 2 of the National Prohibition Act (41 Stat. L. 305), which became a law October 28, 1919; part thereof becoming effective forthwith as a war measure and the remainder upon proclamation of the Eighteenth Amendment, January 16, 1919. Chapter 9, supra, repealed our first state-wide prohibition law enacted by the people on referendum at the general election in November, 1916 (chapter 39, Laws 1915, chapter 143, Laws 1917, and chapter 175, Laws 1917), constituting the enforcement act provided to carry out the policy of state prohibition. The enforcement act was passed after (March 5, 1917), but long in advance of, the effective date of our First Prohibition Act (December 31, 1918), and accompanied the latter in its operation. Thus, while there is evidence to indicate that chapter 9, supra, is an exercise of the state's police power to effectuate the operation of the Eighteenth Amendment as the supreme law of the land, our Legislature having ratified that amendment (February 20, 1917, H. J. R. No. 2, Laws of Extraordinary Session 1918, p. 71), it is clear that chapter 9 must be regarded as a special act expressive of the independent determination of our people to suppress the liquor traffic in all of its many ramifications. The Eighteenth Amendment has given tremendous emphasis to prohibition as a national policy, but it is not the source of the state's power.
Mr. Chief Justice Taft has made this plain in the case of United States v. Lanza, 43 S.Ct. 141, 67 L.Ed. 314, as follows:
As an enactment of the state to express and subserve domestic policy, chapter 9 is to be tested by our constitutional limitations, and construed in harmony with existing laws. Thus viewed, no constitutional restriction is overstepped nor personal guaranty denied the defendant. The word "action" as used in the section must be held to include criminal actions. The words "action," "prosecution," and "proceeding" are indiscriminately employed in the act. "Actions" under our Code are of two kinds, viz. civil and criminal (section 8997, Rev. Codes 1921), and a "criminal action" is defined as "the proceeding by which a party charged with a public offense is accused and brought to trial and punishment." Section 11608. But wholly without this extrinsic aid, the scope of language employed, viz. "the burden of proofshall be upon the possessor in any action concerning the same" (the possession of intoxicating liquor), overcomes suggestion of partial application. To attempt exclusion of criminal actions would be to thwart obvious intent.
We would have escaped much labor in this case had we been able to limit the use of the word "action" to a civil action, as has been done in construing the identical language contained in the Volstead Act. Section 33, 41 Stat. L. 305; U.S. v. Cleveland (D. C.) 281 F. 249.
There can be no doubt respecting the general power of the Legislature to prescribe rules of evidence to be observed in judicial tribunals, it being restricted only by constitutional limitations and guaranties. 10 R. C. L. 862; 12 C.J. 823. Prof. Wigmore, in his splendid treatise on Evidence (section 7), says:
The general rule underlying all of the authorities upon this question is that the Legislature may prescribe that which shall constitute prima facie evidence of guilt, and shift to the defendant the necessity of satisfactory explanation, in the absence of express constitutional inhibition.
The Constitution of Montana contains no guaranty that the burden of proof may not be shifted in a criminal action, unless it may be considered as implied in the due "process of law clause" (section 27, art. 3) or the guaranty that a person accused of crime shall not be compelled to be a witness against himself (...
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