Stone v. State

• Decision Date: 23 July 1973
• Docket Number: No. CR,CR
• Citation: 498 S.W.2d 634,254 Ark. 1011
• Parties: James STONE, Appellant, v. STATE of Arkansas, Appellee. 73--54.
• Court: Arkansas Supreme Court

Page 634

498 S.W.2d 634

254 Ark. 1011

James STONE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 73--54.

Supreme Court of Arkansas.

July 23, 1973.

Rehearing Denied Sept. 10, 1973.

Harold L. Hall, Public Defender, Little Rock, for appellant.

Jim Guy Tucker, Atty. Gen., by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

The record in this case is stipulated. Appellant states (and the state agrees) that the sole issue on this appeal is the constitutionality of Section 1 of Act 68 of 1972. Upon a search of the person of appellant incidental to his arrest, 1200 milligrams of heroin were seized. The sole point relied upon for reversal by appellant was stated thus:

Section 1 of Act 68 of 1972 is unconstitutional in that it denied the defendant due process by permitting the jury to make a presumption upon a fact not in evidence and that it violated his Fifth Amendment privilege against self-incrimination.

Appellant asks that his conviction be reversed and dismissed on the ground that he was convicted under an act that is unconstitutional under the Constitution of the United States.

The section of the statute in question reads:

Possession by any person of a quantity of Heroin in excess of 100 milligrams shall create a rebuttable presumption that such person possesses such Heroin with intent to deliver, provided however, the presumption provided for herein may be overcome by the submission of evidence sufficient to create a reasonable doubt that the person charged possessed Heroin with intent to deliver in violation of the law.

Appellant admits that a statutory inference may be valid if there is a valid connection between the fact proved and the ultimate fact to be established. Appellant's principal reliance is placed upon Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).

In approaching every question pertaining to the constitutionality of an act of the legislative branch, the judiciary must always keep certain basic principles in mind, all of which are essential to the welfare of the checks and balances provided by the American tripartite system of government. The first of these is that the legislature's power is limited only by the state and federal constitutions. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85; Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279; McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428; Gipson v. Ingram, 215 Ark. 812, 223 S.W.2d 595. The next is that a presumption of constitutionality attends every such act. Redding v. State, 254 Ark. ---, 493 S.W.2d 116 (1973); Bush v. Martineau, 174 Ark. 214, 295 S.W. 9. All doubt must be resolved in favor of constitutionality. Redding v. State, supra; Bush v. Martineau, supra. Another principle is that if it is possible for the courts to so construe an act that it will meet the test of constitutionality, they not only may, but should and will, do so. Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785; McLeod v. Santa Fe Transportation Co., 205 Ark. 225, 168 S.W.2d 413. Another way of stating this elementary rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionality. Bush v. Martineau, supra. See also Redding v. State, supra.

The act can be construed so it does not run afoul of constitutional inhibitions. At the outset it should be noted that, unlike most of such statutes which have fallen on the test of constitutionality by the theory upon which appellant's argument is based, our statute does not base the statutory presumption (or more properly inference, as will be presently shown) upon mere possession of the heroin. The quantity possessed is the criterion.

A presumption of law is not involved, and we are, definitely, not dealing with a conclusive presumption. The words 'rebuttable presumption' are of sufficient flexibility to permit a construction which will effectuate the legislative intention, and we should so construe this act. See Redding v. State, supra. Dean Ralph C. Barnhart has treated the flexibility of the word 'presumption' in his article 'Use of Presumptions in Arkansas,' 4 Ark.L.Rev. 128 (1950), saying:

The term 'presumption' is accurately used only to describe any of the instances where the courts will assume the existence of a presumed fact when the basic fact is established--in short, to describe the compelled inference situation. Sometimes the courts use the term 'presumption' when they mean something else. Frequently it is used to describe a mere logical reference, that is, an inference which arises from the probative force of the evidence, and which the trier is justified in drawing from the facts proved. Such an assumption is aptly described as a justifiable inference, since the trier may draw the inference if it thinks that the evidence requires it, or it may refuse to do so if it does not. This being so, such an inference does not impose any of the procedural consequences of a presumption upon the opposite party.

The term 'presumption' may be used merely to state that the proponent of an issue has made out a prima facie case, using prima facie in the sense of sufficient evidence to take the case to the jury, thus avoiding a directed verdict against him. At the point the proponent rests, his prima facie case is equally effective to avoid a directed verdict, whether founded upon a presumption or upon evidence without the aid of a presumption. With respect to the opponent, the situation is quite different. Unless he brings in evidence to rebut the presumption, the court will tell the jury to find that the presumed fact exists. If he introduces sufficient evidence to rebut the presumption, the proponent's prima facie case is gone.

Presumptions may serve a number of purpose in trials of law suits, but the chief purposes usually suggested are (1) to serve some procedural function, such as allocating the burden of proof or of permitting recovery upon an assumption of a fact of which strict proof is impossible; (2) to promote some desirable social or legislative policy or result; and (3) to embody in a uniform rule of law what seems to be the common experience of mankind in identical situations.

Only recently Mr. Justice Powell pointed out in a footnote to the majority opinion in Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), that statutes creating criminal law inferences may be interpreted to preserve the trial court's traditional discretion in determining whether there is sufficient evidence to go to the jury and in charging the jury, and cited Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) and United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), as holding the court's discretion to be inherent in the use of common law inferences.

In its excellent brief, the state points out that the words 'rebuttable presumption' are often taken to mean an inference which obtains until overthrown by proof. ¹ See, e.g., Beck v. K. C. Public Service, 48 S.W.2d 213 (Mo.App.1932). See also Dean Barnhart's article, supra. The state appropriately concedes that the constitutionality of a statutorily created presumption rests in the rational connection between the proven fact and the presumed fact. We cannot say that the connection here is not rational. Clearly, the words of the statute make the 'presumption' the kind productive of a prima facie case by providing that the 'presumption' may be overcome by submission of evidence to create a reasonable doubt that the person charged possessed a controlled substance with intent to deliver in violation of Act 590 of 1971.

Passing now to the rationality of the inference that possession of 100 milligrams, or more, of heroin creates such a 'rebuttable presumption,' we find absolutely nothing in this record to indicate that there is no such connection between the possession of such a quantity of heroin and the intent of the possessor to deliver it. Neither this court nor the trial court was asked to take judicial notice of the amounts or quantities which a person might possess for other uses and purposes. It is at least a matter of extreme doubt that this is a matter of which the courts could be asked to take judicial notice. At any rate, in the absence of evidence contradictory of the legislative declaration, or showing it not to be upon a rational basis, we cannot strike down the fact-finding stated in this act. To do so would usurp a legislative function.

Fact-finding in the judicial department is based upon evidence presented in an adversary proceeding. Legislative fact-finding is based upon an independent, investigatory process, which may be conducted by that branch of government in various ways. Our General Assembly has devoted much time in recent years to the study of the grave problems of our society arising out of the use and distribution of various types of drugs. ² That body has found that possession of various drugs in excess of the quantities enumerated in Section 1, Act 68 of 1972, bears a reasonable relationship with an intent to deliver them. We should not overthrow the finding or hold it to be irrational unless we are furnished with better and more persuasive information than is in the record before us or is of such common knowledge that no evidence should be required. We do not know just what fact-finding processes were utilized by the General Assembly before enacting Act 68 of 1972. Our lack of information on this score does not license this court to say that the legislature acted arbitrarily. We cannot overturn the legislative fact-finding unless its action can be said to be arbitrary. Stanley v. Gates, 179 Ark. 886, 19 S.W.2d 1000; Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497; Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359; Chicago Title and Trust Company v. Hagler Special School District, 178 Ark. 443, 12 S.W.2d 881. Expressisions of this rule are well put in at least two...