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(N. H. 4, 123 Atl. 692.) Thomas, J.-fails to clearly draw 195, has also been cited frequently this distinction. Merrick, J., to sustain the main contention. In speaking for the court, said: "Nor that case it was held that the statdoes it appear that

this new

ute left the question to the jury. rule of evidence is in any degree The charge being thought to imply the result of judicial, instead of that they must find, rather than legislative, action; or that it does in that they might, the verdict was set any way infringe upon the indis- aside. It is really an authority putable right of the accused to have against rather than for the state's his guilt or innocence ascertained, contention, although certain parts and the charge made against him of the opinion are somewhat inconpassed upon, by a jury. The stat sistent with the conclusion reached. ute only prescribes, to a certain ex- In State v. Hurley, 54 Me. 562, tent, and under particular circum- the statute was that the primary stances, what legal effect shall be fact should be "sufficient evidence” given to a particular species of evi- of the secondary. The law was updence, if it stands entirely alone held without decision or discussion and is left wholly unexplained. of what the language meant. That This neither conclusively deter- it is to be taken in the restricted mines the guilt or innocence of the sense is shown by the late cases, party who is accused, nor with- wherein it is held that to make the draws from the jury the right and evidence conclusive under such cirduty of passing upon and determin- cumstances would be beyond the ing the issue to be tried. The bur- power of the legislature. den of proof remains

“The very essence of 'trial by the government, to establish the ac- jury is the right of each juror to cusation which it makes.

weigh the evidence for himself, and, The only purpose and effect of the in the exercise of his own reasonparticular clause of the statute ob- ing faculties, determine whether or jected to are to give a certain de- not the facts involved in the issue gree of artificial force to a desig- · are proved. And if this right is nated fact, until such explanations taken from the juror, if he is not are afforded as to show that it is at allowed to weigh the evidence for least doubtful whether the proposed himself,—is not allowed to use his statutory effect ought to be attrib- own reasoning faculties, but, on the uted to it; but the fact itself is still contrary, is obliged to accept the to be shown and established by evidence at the weight which others proof sufficient to convince and sat- have affixed to it, and to return and isfy the minds of the jurors." 6 affirm a verdict which he does not Gray, 4, 5.

believe to be true, or of the truth of What the "certain degree of arti- which he has reasonable doubts, ficial force” was does not clearly then, very clearly, the substance, appear. Taking the decision as a the very essence, of 'trial by jury,' whole, it does not hold or state that will be taken away, and its form the evidence is conclusive unless ex- only will remain." State v. Intoxiplained. It makes a case for the cating Liquors, 80 Me. 57, 12 Atl. jury. In the subsequent applica- 794, 7 Am. Crim. Rep. 291; State tion of the decision in that state, v. O'Connell, 82 Me. 30, 19 Atl. 86. care has been taken not to go be- In neither of these cases is any yond that.

Com. v. Wallace, 7 mention made of State v. Hurley, Gray, 222; Com. v. Rowe, 14 Gray, supra.

However the latter case 47; Com. v. Barber, 143 Mass. 560, may have been understood in other 10 N. E. 330; Com. v. Smith, 166 jurisdictions, it plainly has not Mass. 370, 44 N. E. 503; Opinion of been thought to lay down the broad Justices, 208 Mass. 619, 34 L.R.A. rule in the state of its rendition. (N.S.) 771, 94 N. E. 1044.

In State v. Prescott, 27 Vt. 195, State v. Cunningham, 25 Conn. and Lincoln v. Smith, 27 Vt. 328, the exact meaning of the term "pri- hold that the statutes took from the ma facie evidence" does not appear triers of the facts the duty to weigh to have been involved and is not the prima facie evidence and ascerdiscussed. As in State v. Cunning- tain whether it was sufficiently pon. ham, supra, some passages in the derous to satisfy the rule as to legal majority opinion might indicate

indicate proof. views favorable to the state here. The mistaken interpretation of

This group of decisions, all ren- the cases in Copp v. Henniker did dered between 1855 and 1867, and no substantial harm at the time, in a large measure each independ- for the supposed error of other ent of the authority of the others, courts was vigorously repudiated. has been much misunderstood and In some other jurisdictions the often misapplied. They have in same fallacious interpretation has many instances been treated as de- been accepted, and with less fortuciding that the legislature might nate results. In still other states make fact A conclusive proof of the limitations which are implicit fact B, in a criminal case, in the in the early cases have been obabsence of other evidence. Our served and applied; but, as in the own court cited them in 1875 as pioneer cases, the point has not inholding that "the legislature may, frequently been left without suffiby statute, give certain evidence cient emphasis. that has a natural tendency to In Board of Excise v. Merchant, prove a certain fact, the weight of 103 N. Y. 143, 57 Am. Rep. 705, 8 prima facie evidence, in criminal N. E. 484, the jury were charged in cases.” Copp v. Henniker, 55 N. H. the words of the statute. The con179, 205, 20 Am. Rep. 194.

viction was upheld, apparently upThis is a correct statement of the on the view that the jury were to decisions, but the comment which weigh the prima facie evidence; the follows assumes what none of the court stating that the proof was in cases decide: “'Prima facie,' in any event "good common-law evicriminal cases, means proof beyond dence of a sale.” That such is the all reasonable doubt in the absence rule in that state was made clear in of other proof raising a reasonable People v. Cannon, 139 N. Y. 32, 43, doubt. If the doctrine of these 44, 47, 36 Am. St. Rep. 668, 34 N. cases is sound, and if it can be ex- E. 762, when the court, by Pecktended to civil cases, it would show ham, J., says: "A provision of this that the

the determination of the kind does not take away or impair weight of evidence that has a nat- the right of trial by jury. It does ural, inherent, probative force in not in reality and finally change the the ordinary, common-law sense, burden of proof. The people must is an exercise of legislative and at all times sustain the burden of not of judicial power, or that it proving the guilt of the accused beis an exercise of judicial power yond a reasonable doubt. It, in which the legislature may transfer substance, enacts that, certain facts from the judicial to the legislative being proved, the jury may regard branch of the government." Id. them, if believed, as sufficient to

The error in Copp v. Henniker convict, in the absence of explanalies in the assumption that the criti- tion or contradiction. Even in that cized decisions took from the court case, the court could not legally dior jury the power to weigh the evi- rect a conviction. It cannot do so dence. No doubt prima facie evi- in any criminal case. That is solely dence, in a criminal case, does mean for the jury, and it could have the proof beyond a reasonable doubt, in right, after a survey of the whole the sense that such proof may be case, to refuse to convict unless satfound as a fact from such evidence. isfied beyond a reasonable doubt of But these cases furnish no solid ba- the guilt of the accused, even sis for the further claim that they though the statutory prima facie (- N. H. 123 Atl. 692.) evidence were uncontradicted. The This reasoning is fairly illustrative case of Com. v. Williams, 6 Gray, 1, of that generally adopted in cases supports this view.

The hereinbefore cited as sustaining the legislature has the power to make

state's contention. these facts sufficient to authorize As opposed to this line of authe presumption (State v. Mellor, thority, there are, in addition to the 13 R. I. at 669), and the jury has

cases already cited, others which, the power, in the absence of all oth- with varying clarity or positiveer evidence, to base its verdict ness, state or apply the rule anthereon, if satisfied that the defend

nounced in People v. Cannon, suant is guilty. But the jury must in

pra. State v. Barrett, 138 N. C. all cases be satisfied of guilt beyond

630, 1 L.R.A.(N.S.) 626, 50 S. E. a reasonable doubt, and the enact

506; Paducah v. Ragsdale, 122 Ky.

425, 92 S. W. 13. ment in regard to the presumption

In several instances the cases usumerely permits, but cannot in effect ally cited as upholding the binding direct, the jury to convict under

effect of such a provision upon the any circumstances. ... The ef

consciences of the jury merely hold fect of the presumption is to call that a statute making facts prima upon the accused for some explana- facie proof is valid, no consideration. If none be given, the jury tion being given to what the words may, as I have said, still refuse to

"prima facie evidence" mean. Of convict; but if they convict, the ver- this class are State v. Thomas, 144 dict may be upheld as founded up- Ala. 77, 2 L.R.A.(N.S.) 1011, 113 on sufficient evidence. The provi- Am. St. Rep. 17, 40 So. 271, 6 Ann. sion fills all the requirements of an Cas. 744; Banks v. State, 124 Ga. act of this nature, for it leaves an 15, 2 L.R.A.(N.S.) 1007, 52 S. E. accused a fair opportunity to re- 74; State v. Sheppard, 64 Kan. 451, lieve himself from the presumption, 67 Pac. 870; Faith v. State, 32 Tex. to explain the circumstances." 373. In others, there is much dis

The general tenor of the forego- cussion and scant conclusion. ing opinion is undoubtedly sound, State v. Beach, 147 Ind. 74, 36 but the suggestion in the last sen

L.R.A. 179, 43 N. E. 949; Meadowtence quoted that the statute ful- croft v. People, 163 Ill. 56, 35 fils all the constitutional require. L.R.A. 176, 54 Am. St. Rep. 447, 45 ments by merely giving the accused N. E. 991. a chance to explain is misleading,

It is said that so long as the deand, if taken as a statement of the fendant has preserved to him the whole law, is unsound. As will be

right to fully present his defense,

and then have the evidence weighed, more fully considered later, more

he has nothing to complain of. But than an opportunity to explain can be demanded. But the expression whole right secured

the right to make defense is not the has been laid hold upon as describ- to one charged with suficiency

Evidenceing the whole of the defendant's crime. He has also proof of guilt. rights. In People v. Adams, 176 N.

the right to insist that, before he Y. 351, 63 L.R.A. 406, 98 Am. St. can be found guilty, there must be Rep. 675, 68 N. E. 636, it is de- substantial evidence . upon every clared that by such a statute “the fact essential to the establishment legislature has cast the burden of

of his guilt, and that this evidence proof upon the person who has in shall be weighed by the jury and his possession these incriminating found sufficient to prove the case. papers," and that since "the fullest It is his right to decline to produce opportunity is afforded to him to any evidence and to stand solely rebut this statutory presumption," upon the proposition that the state therefore “the exercise of this pow. must prove a case against him. er is clearly within constitutional No doubt the legislature may limitations." 176 N. Y. 361, 362. change the rules of evidence, sub

31 A.L.R.-77.


ject always to the limitation that with the production of evidence. 2

all laws must be Wigmore, Ev. $ 1354; Spilene v. Constitutional law-power to

reasonable; but the Salmon Falls Mfg. Co. 79 N. H. change rules of attempt here, and 326, 108 Atl. 808; Gaffney v. Cof

the decisions else- fey, 80 N. H. -, 124 Atl. 788. But where, go far beyond this and as- the caution that legislative power sume to declare how certain evi- in this respect must be exercised dence shall be weighed under cer- subject to "the limitations of evitain circumstances.

dence enshrined in the ConstituMuch confusion has arisen from tion” (2 Wigmore, Ev. § 1354) has the failure to keep clearly in mind not always been heeded. what legislation is, and what is not, Not only have certain rules cona rule of evidence. Thus, the legis- cerning evidence been protected by lature may lawfully establish what constitutional provisions, but ceris called a conclusive presumption. tain methods of procedure, especialSuch an act is not the establish- ly in the prosecution of crimes, ment of a rule of evidence, but a have been given like protection. change of the substantive law. A When constitutional objections to statute providing that in all pros- a so-called legislative rule of evi. ecutions for burglary upon proof of dence are obviated by treating the breaking, an entry will be pre- enactment as a rule of procedure, sumed, would be merely enacting the question of the violation of prothat the crime of burglary should cedural constitutional right reconsist of breaking. Entry is no mains to be considered. longer material. 2 Wigmore, Ev. S The rule of the Constitution is 1353. Such a statute is not in sub- that the defendant in a criminal stance a direction that certain evi- case cannot be compelled to go fordence shall have a fixed weight, but ward. that a certain fact need not be "The fact that he is charged with proved; or, stated more directly, a crime gives him certain special that the fact no longer enters into privileges. Among these are the the issue. Murchie v. Clifford, 76 requirements of the state to prove N. H. 99, 106, 79 Atl. 901.

the charge against him beyond a Decisions upholding such stat- reasonable doubt; the constitutionutes afford no basis for sustaining al prohibition of compelling him to the present contention. The situa- accuse or furnish evidence against tion presents no such question. himself; the right to meet the witPossession is not made to conclude nesses against him face to face, and the issue of its unlawfulness, except so forth.” State v. Ober, 52 N. H. in the absence of other evidence. 459, 463, 13 Am. Rep. 88. The character of the possession is "If he pleaded not guilty, he was not made immaterial. Its material- not, and could not be required to do ity is recognized, and the attempt is or say anything more. State v. to establish the fact by a legislative Gerry, 68 N. H. 495, 500, 38 L.R.A. fiat that, failing other evidence, the 228, 38 Atl. 275. character of possession is conclu- Even in civil causes, the legislasively proved. In other words, the ture cannot direct how evidence jury are to be directed that fact A shall be weighed. Murchie v. Clifconclusively establishes the exist ford, supra. It is only upon the ence of fact B, and that in a crimi- ground that so-called rules regulatnal case where the latter fact is one ing what shall constitute prima fathe state is bound to prove.

cie proof in such causes amount Rules of prima facie proof in merely to regulations of the duty to civil causes, both statutory and go forward, that the statutes can be common law, have been sustained sustained. The basis for these deciupon the ground that they merely sions is manifestly the legislative regulate the duty to go forward power to regulate procedure in a

(- N. H. 123 Atl. 692.) reasonable way.

They have no the question is produced. They apbearing upon a situation where ply only to cases where there is no such power is lacking. In many re- evidence save the statutory inferspects there is no such power over ence from fact A to fact B, and criminal proceedings. It cannot be they say to the jury that the inferdirectly provided that the accused ence is inevitable. You must find shall furnish evidence against him- fact B if you find that fact A is self. It, of course, follows that the proved. same thing cannot be done indirect- Because of the reasons above sugly. A statute which depends for its gested, it has seemed to some courts validity upon a legislative power to that the term "prima facie evicompel a defendant to proceed at dence" ought rather to be construed certain stages of the trial, or upon as meaning evidence sufficient to certain questions, cannot be upheld invoke the judgment of the trier of when the essential legislative au- fact, and to support a verdict if one thority is lacking.

be found. State v. Cunningham, 25 In a criminal prosecution, non- Conn. 195; People v. Cannon, 139 action of the defendant cannot be N. Y. 32, 36 Am. St. Rep. 668, 34

substituted for ac- N. E. 759; Board of Excise v. MerCriminal laweffect of silence tion upon the part chant, 103 N. Y. 143, 57 Am. Rep. of accused.

of the state, as to 705, 8 N. E. 484; State v. Barrett, any matter required to be estab- 138 N. C. 630, 1 L.R.A.(N.S.) 626, lished as a part of the state's case. 50 S. E. 506; State v. Intoxicating Neither the burden of proof nor the Liquors, 80 Me. 57, 12 Atl. 794, 7 burden of proceeding with any evi- Am. Crim. Rep. 291; State v. dence to prove such case can be im- O'Connell, 82 Me. 30, 19 Atl. 86; posed upon the party charged with State v. Momberg, 14 N. D. 291, 103 crime.

N. W. 566; Sellers v. State, 11 Most courts that have sustained Okla. Crim. Rep. 588, 149 Pac. these statutes as binding the judg- 1071. So construing the statutes, ment of the jury have done so upon their validity is sustained. But bethe theory that all the legislature cause it is sustained it does not folhad undertaken to do was to pre- low that a broader interpretation scribe a rule of evidence. As al- of the legislative language would be ready pointed out, this is not the upheld. The plain inference from real purpose and effect of the legis- the opinions is that it would not. lation. It seeks to compel a party In some of them it is so stated. to go ahead in the case, to produce The broader interpretation of evidence, or else have the fact found such statutes impairs the defendagainst him as matter of law. It ant's undoubted right to insist that is a rule of procedure, and under- he cannot be con

Evidencetakes to take from the defendant victed except upon validity of statrights guaranteed to him by the evidence produced ute making one

fact prima facie Constitution.

against him. If it evidence of It is herein that these statutes were to be called a are fatally defective. By what au- rule of evidence, it would be inval. thority can the legislature impose id because it would undertake to a burden upon the defendant for invade the judicial sphere, by prenot producing evidence? One will scribing the weight of certain evisearch in vain through all the deci- dence. Treated as a rule of prosions for any answer. No doubt cedure, it undertakes to compel the the statute gives the defendant full defendant to produce evidence, or opportunity to present all the evi- else have a question of fact decided dence, but that does not help the against him, as though it were one situation. These statutes were not of law. To stress this so-called designed for, and do not apply in, privilege of the defendant to procases where other evidence upon duce evidence, as so many courts


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