State v. Tutalo

• Decision Date: 08 December 1964
• Docket Number: No. 10564,10564
• Citation: 99 R.I. 14,205 A.2d 137
• Parties: , 17 A.L.R.3d 482 STATE v. Robert R. TUTALO. Ex.
• Court: Rhode Island Supreme Court

Page 137

205 A.2d 137

99 R.I. 14, 17 A.L.R.3d 482

STATE v. Robert R. TUTALO.

Ex. No. 10564.

Supreme Court of Rhode Island.

Dec. 8, 1964.

J. Joseph Nugent, Atty. Gen., Corinne P. Grande, Special Counsel, for the State.

Aram K. Berberian, Providence, for defendant.

JOSLIN, Justice.

This is a criminal complaint charging that the defendant 'Did knowingly have in his possession a certain slip or certificate such as is used in carrying on, promoting and playing the game commonly known as policy-lottery or policy.' It was tried before a justice of the superior court sitting with a jury and resulted in a verdict of guilty. The case is before us on the defendant's exceptions to the overruling of his demurrer to the complaint, to the denial of his motion for a directed verdict, to certain evidentiary rulings, to the refusal of the trial justice to charge as requested, to a certain portion of the charge to the jury, and to the denial of his motion for a new trial.

It appears that on the day of his arrest defendant was under surveillance by officer James H. Dodd, Jr. and detective Edward F. Tiernan, both members of the Providence police department. They saw defendant get out of his car and enter a cafe where, after a conversation with a man at the bar, he took from the latter some small slips of paper. He then left the cafe, entered his automobile and sat at the driver's seat. Thereupon Officer Dodd who was in an unmarked car pulled alongside. He observed defendant speak to the passenger in his automobile and hand him the slips which the latter then threw out the car window. They were retrieved by detective Tiernan and given to officer Dodd. He identified them as pool or lottery slips and then placed defendant under arrest.

The defendant's exceptions number thirty-four. In his brief and argument he has presented them as raising six issues and we so treat them.

The first issue is whether G.L.1956, §§ 11-19-5, 11-19-6, 11-19-7 and 11-19-8 are unconstitutional. We confine our consideration to §§ 11-19-5 and 11-19-6 because defendant has failed to specify the particular section, clause and provision of the federal or state constitution claimed to be violated by §§ 11-19-7 and 11-19-8. Haigh v. State Board of Hairdressing, 74 R.L. 106, 58 A.2d 925.

The exceptions raised by the first issue are 1, 24, 25, 26, 27, 29, 30 and 32. It will serve no useful purpose to quote or summarize such of those exceptions as relate to a portion of the charge as given or to the denial of some of defendant's requests to charge. Suffice it to say, if his contentions have merit, some or all of those requests should have been granted, and the charge to the jury as given was objectionable.

The defendant's challenge is that § 11-19-5, when read in pari materia with § 11-19-6, deprives him of his liberty and property without due process of law, denies him the presumption of innocence, and violates his privilege against self-incrimination. Section 11-19-5 provides in pertinent part that 'whoever shall have in his possession knowingly, any * * * slip, certificate * * * or article of any kind such as is used in carrying on, promoting, or playing the game commonly known as policy-lottery or policy, shall, upon conviction, be punished by fine * * * or imprisonment * * *.' By § 11-19-6, 'The possession, by any person, other than a public official in the course of his duty, * * *' of any such slip, certificate or article is made 'presumptive evidence of possession thereof knowingly and in violation of § 11-19-5.'

The claimed unconstitutionality arises, defendant argues, because under § 11-19-6 proof that an accused possessed lottery slips is presumptive evidence that the possession thereof was knowingly and in violation of § 11-19-5. While conceding that the opinion of this court in State v. Gaines, 32 R.I. 462, 79 A. 1107, is dispositive of his challenge, defendant nonetheless argues that Gaines should not be followed because the court there did not amplify its conclusions on the constitutional considerations. He urges instead that we follow In the Matter of Wong Hane, 108 Cal. 680, 41 P. 693, and Ex parte Kameta, 36 Or. 251, 60 P. 394. There ordinances similar to our statute were held unconstitutional.

In Ex parte McClain, 134 Cal. 110, 66 P. 69, 54 L.R.A. 779, however, in upholding the constitutionality of an ordinance resembling that passed on only six years earlier in Wong Hane, the California court cast some doubt on its prior decision saying at page 113, 66 P. at page 70: 'If a variance shall be thought to exist between the views there expressed [Wong Hane] and those here announced, it need but be said that we are satisfied that the foregoing enunciates a sound principle of statutory construction.'

In addition, the force of Kameta, where sole reliance was placed on Wong Hane, has been weakened by Enloe v. Lawson, 146 Or. 621, 31 P.2d 171, where the court, without reference to Kameta, upheld the constitutionality of a municipal ordinance making possession of a slot machine, whether for a lawful or an unlawful purpose, a criminal offense.

The authorities relied on by defendant are, therefore, not entitled to unqualified acceptance. The weight of the authority moreover, as well as what in our opinion are the better reasoned decisions, requires that State v. Gaines, supra, be reaffirmed. Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575; People v. Adams, 176 N.Y. 351, 68 N.E. 636, 63 L.R.A. 406; Ferguson v. United States, 123 A.2d 615 (Mun.Ct.App.D.C.). To the same effect but construing statutes not substantially identical to that before us, see Ford v. State, 85 Md. 465, 37 A. 172, 41 L.R.A. 551, and State v. Collins, 63 N.J.L. 316, 43 A. 896. Our own decisions, while not lending unqualified support to the rule we adopt, do so impliedly. State v. Mellor, 13 R.I. 666; State v. Higgins, 13 R.I. 330.

The majority view rests on two settled principles. The first is the unquestioned legislative authority in the legitimate exercise of the police power, and even without the sanction of a constitutional provision such as our art. IV, sec. 12, to suppress lotteries. Stone v. State of Mississippi, 101 U.S. 814, 25 L.Ed. 1079. The second is the legislative right to prescribe evidentiary rules. Fong Yue Ting v. United States, 149 U.S. 698, 729, 13 S.Ct. 1016, 37 L.Ed. 905. In the exercise of that right the legislature may, with limitations, and even in criminal cases, provide that when certain facts have been proved, they shall be prima facie or presumptive evidence of other facts. O'Neill v. United States, 8 Cir., 19 F.2d 322; People v. Cannon, 139 N.Y. 32, 43, 34 N.E. 759; Bailey v. State of Alabama, 219 U.S. 219, 238, 31 S.Ct. 145, 55 L.Ed. 191.

The limitations are: There must be a natural and rational relation between the fact proved and that presumed; the fact inferred from the fact actually proved cannot be purely arbitrary or wholly unreasonable; and the accused in all events must be given the right to have the triers of fact determine guilt or innocence after giving such weight to the presumption as they shall deem proper.

Reference to the argument of the state in Adams v. New York, supra, 192 U.S. at page 593, indicates that the question of whether the presumption of knowledge based upon proof of possession falls within such limitations was squarely before the court. Relying on authorities which included State v. Higgins, supra, and State v. Mellor, supra, the state contended that legislation making certain facts when proved prima facie evidence of the main fact is not constitutionally prohibited 'provided the inference of the existence of the main fact, because of the existence of the fact actually proved, must not be merely and purely arbitrary or wholly unreasonable, unnatural or extraordinary.'

That the court in finding constitutional the New York statute--a statute substantially similar to that here at issue--accepted the argument advanced by the state is evidenced in Bailey v. State of Alabama, supra, where the court, citing Adams v. New York as authority, at page 238 of 219 U.S., at page 150 of 31 S.Ct. set forth the rules upon which we rely as follows:

'This court has frequently recognized the general 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, 749 [13 S.Ct. 1016, 37 L.Ed. 905]. In the exercise of this power numerous statutes have been enacted providing that proof of one fact shall be prima faci evidence of the main fact in issue; and where the inference is not purely arbitrary and there is a rational relation between the two facts, and the accused is not deprived of a proper opportunity to submit all the facts bearing upon the issue, it has been held that such statutes do not violate the requirements of due process of law.'

The rational and reasonable relationship between the proved possession and the presumed knowledge is present here, for as the court said in Adams v. New York, supra, 192 U.S. at page 599, 24 S.Ct. at page 375:

'The policy slips are property of an unusual character and not likely,...