Thomas, J.-fails 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, 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. Com. v. Wallace, 7 Gray, 222; Com. v. Rowe, 14 Gray, 47; Com. v. Barber, 143 Mass. 560, 10 N. E. 330; Com. v. Smith, 166 Mass. 370, 44 N. E. 503; Opinion of Justices, 208 Mass. 619, 34 L.R.A. (N.S.) 771, 94 N. E. 1044.

State v. Cunningham, 25 Conn.

i

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 it is to be taken in the restricted sense is shown by the late cases, wherein it is held that to make the evidence conclusive under such circumstances would be beyond the power of the legislature.

"The very essence of 'trial by jury' is the right of each juror to weigh the evidence for himself, and, in the exercise of his own reasoning faculties, determine whether or not the facts involved in the issue are proved. And if this right is taken from the juror, if he is not allowed to weigh the evidence for himself,-is not allowed to use his own reasoning faculties, but, on the contrary, is obliged to accept the evidence at the weight which others have affixed to it, and to return and affirm a verdict which he does not believe to be true, or of the truth of which he has reasonable doubts,then, very clearly, the substance, the very essence, of 'trial by jury,' will be taken away, and its form only will remain." State v. Intoxicating Liquors, 80 Me. 57, 12 Atl. 794, 7 Am. Crim. Rep. 291; State v. O'Connell, 82 Me. 30, 19 Atl. 86.

In neither of these cases is any mention made of State v. Hurley, supra. However the latter case may have been understood in other jurisdictions, it plainly has not been thought to lay down the broad rule in the state of its rendition.

In State v. Prescott, 27 Vt. 195, and Lincoln v. Smith, 27 Vt. 328,

the exact meaning of the term "prima facie evidence" does not appear to have been involved and is not discussed. As in State v. Cunningham, supra, some passages in the majority opinion might indicate views favorable to the state here.

This group of decisions, all rendered between 1855 and 1867, and in a large measure each independent of the authority of the others, has been much misunderstood and often misapplied. They have in many instances been treated as deciding that the legislature might make fact A conclusive proof of fact B, in a criminal case, in the absence of other evidence. Our own court cited them in 1875 as holding that "the legislature may, by statute, give certain evidence that has a natural tendency to prove a certain fact, the weight of prima facie evidence, in criminal cases." Copp v. Henniker, 55 N. H. 179, 205, 20 Am. Rep. 194.

This is a correct statement of the decisions, but the comment which follows assumes what none of the cases decide: "Prima facie,' in criminal cases, means proof beyond all reasonable doubt in the absence of other proof raising a reasonable doubt. If the doctrine of these cases is sound, and if it can be extended to civil cases, it would show that the determination of the weight of evidence that has a natural, inherent, probative force in the ordinary, common-law sense, is an exercise of legislative and not of judicial power, or that it is an exercise of judicial power which the legislature may transfer from the judicial to the legislative branch of the government." Id.

The error in Copp v. Henniker lies in the assumption that the criticized decisions took from the court or jury the power to weigh the evidence. No doubt prima facie evidence, in a criminal case, does mean proof beyond a reasonable doubt, in the sense that such proof may be found as a fact from such evidence. But these cases furnish no solid basis for the further claim that they

hold that the statutes took from the triers of the facts the duty to weigh the prima facie evidence and ascertain whether it was sufficiently ponderous to satisfy the rule as to legal proof.

The mistaken interpretation of the cases in Copp v. Henniker did no substantial harm at the time, for the supposed error of other courts was vigorously repudiated. In some other jurisdictions the same fallacious interpretation has been accepted, and with less fortunate results. In still other states the limitations which are implicit in the early cases have been observed and applied; but, as in the pioneer cases, the point has not infrequently been left without sufficient emphasis.

In Board of Excise v. Merchant, 103 N. Y. 143, 57 Am. Rep. 705, 8 N. E. 484, the jury were charged in the words of the statute. The conviction was upheld, apparently upon the view that the jury were to weigh the prima facie evidence; the court stating that the proof was in any event "good common-law evidence of a sale." That such is the rule in that state was made clear in People v. Cannon, 139 N. Y. 32, 43, 44, 47, 36 Am. St. Rep. 668, 34 N. E. 762, when the court, by Peckham, J., says: "A provision of this kind does not take away or impair the right of trial by jury. It does not in reality and finally change the burden of proof. The people must at all times sustain the burden of proving the guilt of the accused beyond a reasonable doubt. It, in substance, enacts that, certain facts being proved, the jury may regard them, if believed, as sufficient to convict, in the absence of explanation or contradiction. Even in that case, the court could not legally direct a conviction. It cannot do so in any criminal case. That is solely for the jury, and it could have the right, after a survey of the whole case, to refuse to convict unless satisfied beyond a reasonable doubt of the guilt of the accused, even though the statutory prima facie

legislature has the power to make these facts sufficient to authorize the presumption (State v. Mellor, 13 R. I. at 669), and the jury has the power, in the absence of all other evidence, to base its verdict thereon, if satisfied that the defendant is guilty. But the jury must in all cases be satisfied of guilt beyond a reasonable doubt, and the enactment in regard to the presumption merely permits, but cannot in effect direct, the jury to convict under any circumstances. The ef

fect of the presumption is to call upon the accused for some explanation. If none be given, the jury may, as I have said, still refuse to convict; but if they convict, the verdict may be upheld as founded upon sufficient evidence. The provision fills all the requirements of an act of this nature, for it leaves an accused a fair opportunity to relieve himself from the presumption, to explain the circumstances."

The general tenor of the foregoing opinion is undoubtedly sound, but the suggestion in the last sentence quoted that the statute fulfils all the constitutional requirements by merely giving the accused a chance to explain is misleading, and, if taken as a statement of the whole law, is unsound. As will be more fully considered later, more than an opportunity to explain can be demanded. But the expression has been laid hold upon as describing the whole of the defendant's rights. In People v. Adams, 176 N. Y. 351, 63 L.R.A. 406, 98 Am. St. Rep. 675, 68 N. E. 636, it is declared that by such a statute "the legislature has cast the burden of proof upon the person who has in his possession these incriminating papers," and that since "the fullest opportunity is afforded to him to rebut this statutory presumption," therefore "the exercise of this power is clearly within constitutional limitations." 176 N. Y. 361, 362.

31 A.L.R.-77.

This reasoning is fairly illustrative of that generally adopted in cases hereinbefore cited as sustaining the state's contention.

As opposed to this line of authority, there are, in addition to the cases already cited, others which, with varying clarity or positiveness, state or apply the rule announced in People v. Cannon, supra. State v. Barrett, 138 N. C. 630, 1 L.R.A. (N.S.) 626, 50 S. E. 506; Paducah v. Ragsdale, 122 Ky. 425, 92 S. W. 13.

Of

In several instances the cases usually cited as upholding the binding effect of such a provision upon the consciences of the jury merely hold that a statute making facts prima facie proof is valid, no consideration being given to what the words "prima facie evidence" mean. this class are State v. Thomas, 144 Ala. 77, 2 L.R.A. (N.S.) 1011, 113 Am. St. Rep. 17, 40 So. 271, 6 Ann. Cas. 744; Banks v. State, 124 Ga. 15, 2 L.R.A. (N.S.) 1007, 52 S. E. 74; State v. Sheppard, 64 Kan. 451, 67 Pac. 870; Faith v. State, 32 Tex. 373. In others, there is much discussion and scant conclusion. State v. Beach, 147 Ind. 74, 36 L.R.A. 179, 43 N. E. 949; Meadowcroft v. People, 163 Ill. 56, 35 L.R.A. 176, 54 Am. St. Rep. 447, 45

N. E. 991.

It is said that so long as the defendant has preserved to him the right to fully present his defense, and then have the evidence weighed, he has nothing to complain of. But the right to make defense is not the whole right secured

Evidence

to one charged with sumciencycrime. He has also proof of guilt. the right to insist that, before he can be found guilty, there must be substantial evidence upon every fact essential to the establishment of his guilt, and that this evidence shall be weighed by the jury and found sufficient to prove the case. It is his right to decline to produce any evidence and to stand solely upon the proposition that the state must prove a case against him.

No doubt the legislature may change the rules of evidence, sub

ject always to the limitation that

Constitutional law-power to change rules of evidence.

all laws must be reasonable; but the attempt here, and the decisions elsewhere, go far beyond this and assume to declare how certain evidence shall be weighed under certain circumstances.

Much confusion has arisen from the failure to keep clearly in mind what legislation is, and what is not, a rule of evidence. Thus, the legislature may lawfully establish what is called a conclusive presumption. Such an act is not the establishment of a rule of evidence, but a change of the substantive law. A statute providing that in all prosecutions for burglary upon proof of breaking, an entry will be presumed, would be merely enacting that the crime of burglary should consist of breaking. Entry is no longer material. 2 Wigmore, Ev. § 1353. Such a statute is not in substance a direction that certain evidence shall have a fixed weight, but that a certain fact need not be proved; or, stated more directly, that the fact no longer enters into the issue. Murchie v. Clifford, 76 N. H. 99, 106, 79 Atl. 901.

Decisions upholding such statutes afford no basis for sustaining the present contention. The situa

tion presents no such question. Possession is not made to conclude the issue of its unlawfulness, except in the absence of other evidence. The character of the possession is not made immaterial. Its materiality is recognized, and the attempt is to establish the fact by a legislative fiat that, failing other evidence, the character of possession is conclusively proved. In other words, the jury are to be directed that fact A conclusively establishes the existence of fact B, and that in a criminal case where the latter fact is one the state is bound to prove.

Rules of prima facie proof in civil causes, both statutory and common law, have been sustained upon the ground that they merely regulate the duty to go forward

with the production of evidence. 2 Wigmore, Ev. § 1354; Spilene v. Salmon Falls Mfg. Co. 79 N. H. 326, 108 Atl. 808; Gaffney v. Coffey, 80 N. H. —, 124 Atl. 788. But the caution that legislative power in this respect must be exercised subject to "the limitations of evidence enshrined in the Constitution" (2 Wigmore, Ev. § 1354) has not always been heeded.

Not only have certain rules concerning evidence been protected by constitutional provisions, but certain methods of procedure, especially in the prosecution of crimes, have been given like protection. When constitutional objections to a so-called legislative rule of evidence are obviated by treating the enactment as a rule of procedure, the question of the violation of procedural constitutional right remains to be considered.

The rule of the Constitution is that the defendant in a criminal case cannot be compelled to go forward.

"The fact that he is charged with a crime gives him certain special privileges. Among these are the requirements of the state to prove the charge against him beyond a reasonable doubt; the constitutional prohibition of compelling him to accuse or furnish evidence against himself; the right to meet the witnesses against him face to face, and so forth." State v. Ober, 52 N. H. 459, 463, 13 Am. Rep. 88.

"If he pleaded not guilty, he was not, and could not be, required to do or say anything more.' State v. Gerry, 68 N. H. 495, 500, 38 L.R.A. 228, 38 Atl. 275.

Even in civil causes, the legislature cannot direct how evidence shall be weighed. Murchie v. Clifford, supra. It is only upon the ground that so-called rules regulating what shall constitute prima facie proof in such causes amount merely to regulations of the duty to go forward, that the statutes can be sustained. The basis for these decisions is manifestly the legislative power to regulate procedure in a

reasonable way. They have no bearing upon a situation where such power is lacking. In many respects there is no such power over criminal proceedings. It cannot be It cannot be directly provided that the accused shall furnish evidence against himself. It, of course, follows that the same thing cannot be done indirectly. A statute which depends for its validity upon a legislative power to compel a defendant to proceed at certain stages of the trial, or upon certain questions, cannot be upheld when the essential legislative authority is lacking.

In a criminal prosecution, nonaction of the defendant cannot be substituted for ac

Criminal law

of accused.

effect of silence tion upon the part of the state, as to any matter required to be established as a part of the state's case. Neither the burden of proof nor the burden of proceeding with any evidence to prove such case can be imposed upon the party charged with crime.

Most courts that have sustained these statutes as binding the judgment of the jury have done so upon the theory that all the legislature had undertaken to do was to prescribe a rule of evidence. As already pointed out, this is not the real purpose and effect of the legislation. It seeks to compel a party to go ahead in the case, to produce evidence, or else have the fact found against him as matter of law. It is a rule of procedure, and undertakes to take from the defendant rights guaranteed to him by the Constitution.

It is herein that these statutes are fatally defective. By what authority can the legislature impose a burden upon the defendant for not producing evidence? One will search in vain through all the decisions for any answer. No doubt the statute gives the defendant full opportunity to present all the evidence, but that does not help the situation. These statutes were not designed for, and do not apply in, cases where other evidence upon

the question is produced. They apply only to cases where there is no evidence save the statutory inference from fact A to fact B, and they say to the jury that the inference is inevitable. You must find fact B if you find that fact A is proved.

Because of the reasons above suggested, it has seemed to some courts that the term "prima facie evidence" ought rather to be construed as meaning evidence sufficient to invoke the judgment of the trier of fact, and to support a verdict if one be found. State v. Cunningham, 25 Conn. 195; People v. Cannon, 139 N. Y. 32, 36 Am. St. Rep. 668, 34 N. E. 759; Board of Excise v. Merchant, 103 N. Y. 143, 57 Am. Rep. 705, 8 N. E. 484; State v. Barrett, 138 N. C. 630, 1 L.R.A. (N.S.) 626, 50 S. E. 506; State v. Intoxicating Liquors, 80 Me. 57, 12 Atl. 794, 7 Am. Crim. Rep. 291; State v. O'Connell, 82 Me. 30, 19 Atl. 86; State v. Momberg, 14 N. D. 291, 103 N. W. 566; Sellers v. State, 11 Okla. Crim. Rep. 588, 149 Pac. 1071. So construing the statutes, their validity is sustained. But because it is sustained it does not follow that a broader interpretation of the legislative language would be upheld. The plain inference from the opinions is that it would not. In some of them it is so stated.

fact prima facie

another.

The broader interpretation of such statutes impairs the defendant's undoubted right to insist that he cannot be con- Evidencevicted except upon validity of statevidence produced ute making one against him. If it evidence of were to be called a rule of evidence, it would be invalid because it would undertake to invade the judicial sphere, by prescribing the weight of certain evidence. Treated as a rule of procedure, it undertakes to compel the defendant to produce evidence, or else have a question of fact decided against him, as though it were one of law. To stress this so-called privilege of the defendant to produce evidence, as so many courts