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have stressed it, is an entire perver- the latter rule in a few states sion of the protection guaranteed (State v. Bartlett, 55 Me. 200; him. It is true it is his right to State v. Cleaves, 59 Me. 298, 8 Am. produce evidence, but it is equally Rep. 422; Parker v. State, 61 N. J. true that he cannot be compelled to L. 308, 39 Atl. 651) is based upon do so, either directly or indirectly. the logical inference to be drawn

If a part of the state's case may from such conduct. In none of the be conclusively established in this cases is any reasoning advanced way, so may the whole of it. If the showing that the conclusion reached inference from possession to illegal does not compel the defendant to ity is to be drawn as matter of law “furnish evidence against himself." because there is no other evidence, Stated bluntly, those decisions come so might the legislature provide to this,-his exercise of his constithat possession shall be conclusive- tutional right not to testify is evily shown by the testimony of one dence of guilt. witness, if there be no other evi- It is not necessary to consider dence. In such a situation the jury whether such a limitation upon the would be told that the testimony re- constitutional provision can be upquired that they return a verdict of held in this state. Nor is it necesguilty. If in the present case the sary to decide whether the authori. opportunity to take away the appli- ties above referred to, holding that cation of the statute by producing an inference may be drawn from evidence satisfies the defendant's the defendant's failure to produce constitutional demands, so it would other evidence, could be followed in the supposed case.

here. If it be conceded for the sake It is his constitutional right not of the argument that such a distincto produce evidence. Were it not tion could be made, or even if it for the array of cases denying the were conceded that an inference substance of this privilege, it would could be drawn from his own failseem incredible that anyone could ure to testify, it would not affect suppose that it could be invaded by the result in this case. any legislation based upon a power

If such an inference were perto penalize the exercise of the right. mitted, it could only be one of fact. Giving to him the right to produce It would still be for the jury to say evidence, or not, is no substitute for whether they would or would not his right not to produce it. The draw it. As before stated, any atformer is a privilege now generally tempt to direct how much or how conferred. But the latter is a fun- little weight should be given to such damental right which neither legis- an evidentiary situation would be latures nor courts are at liberty to a clear invasion of the powers comimpair. Conferring the privilege mitted to the department of governto produce cannot limit or in any ment having exclusive jurisdiction way affect the constitutional right over such matters. Neither the not to produce.

power nor the duties of courts can It may be that under certain cir- be lessened in this way. cumstances an inference of fact can Construed as the state claims it be permitted to be drawn from the should be, the provision that posdefendant's failure to produce evi- session shall be prima facie evidence, excluding any inference as dence of illegality cannot be susto his own testimony. Com. v.

tained as a valid exercise of legislaWebster, 5 Cush. 295, 52 Am. Dec.

tive power. 711 (Shaw, Ch. J.); State v. Grebe, But it is suggested that such a re17 Kan. 458 (Brewer, J.). That sult may be arrived at by construno inference can be drawn from his ing the section, taken as a whole, to own failure to testify has been gen- mean that unexplained possession erally recognized to be the law. 3 is an offense. It may be doubted Wigmore, Ev. § 272. The denial of whether such a statute would stand (N. H. -, 123 Atl. 692.) any better than one which attempt- sufficient grounds for its retention ed by more direct means to compelin civil procedure under proper the defendant to produce evidence limitations. Spilene v. Salmon or else stand convicted without evi- Falls Mfg. Co. 79 N. H. 326, 108 dence. But that question does not Atl. 808. They are wholly insuffiarise here, for it is apparent that if cient to warrant the use of the rule the legislature had understood that to impair the constitutional rights they made unexplained possession of a person charged with crime. an offense, they would not have con- Is the statute constitutional if it sidered it necessary to provide a means merely that possession shall statutory explanation of possession be evidence for the jury to consider in aid of a conviction. If posses- upon the issue of illegality? There sion alone or unexplained were the is no vested right in any rule of offense, there would be no occasion evidence. Rich v. Flanders, 39 N. for an added presumption or infer- H. 304; 1 Wigmore, Ev. § 7. ence that unexplained possession Whether the legislature may dewas illegal. It is entirely clear clare that fact A shall be evidence that the legislative purpose ex- of fact B, when there is no logical pressed by the last clause of the connection between the two, may section was to provide a rule of pro- well be doubted. See Opinion of cedure or of evidence. It was not Justices, 208 Mass. 619, 34 L.R.A. then defining the crime.

(N.S.) 771, 94 N. E. 1044. But It is also argued that the cases where there is such connection, holding that, where one claims ex- even though it be slight, there emption from a statutory penalty seems to be no satisfactory ground by reason of an exception in the upon which to claim that the statstatute, it is not incumbent upon ute exceeds the general legislative the state to prove in the first in- power to declare what shall be evistance that the defendant is not dence. In the present state of our within the exception (State v. Per- statute law, it is not a forced or enkins, 53 N. H. 435, and cases cited; tirely illogical inference to conclude State v. Keggon, 55 N. H. 19, 3 Am. that possession of intoxicating liqCrim. Rep. 285), demonstrate that uor is illegal. People v. Cannon, the construction contended for by 139 N. Y. 32, 36 Am. St. Rep. 668, the state would not violate the de- 34 N. E. 759. fendant's rights (Com. v. Thurlow, As the statute could not be sus24 Pick. 376; Com. v. Kelly, 10 tained if given the broad meaning Cush. 69; State v. Rosasco, 103 Or. contended for by the state, it is to 343, 205 Pac. 290; People v. Wil- be presumed that it was the legisliams, 61 Colo. 11, 155 Pac. 323). lative intent to use the language of So far as criminal procedure is con- the act in the restricted and consticerned, those decisions have here tutional sense. "Prima facie evibeen confined strictly to cases that, dence,” as here used, means evidence were exceptions to a general rule. to be considered by

Statute-conMore than once the courts have the jury. It folbeen unanimous in the opinion that lows from this con- inga prima facie the cases were wrong in principle, clusion that the exand have sustained them only upon ception to the refusal to direct a the grounds of authority and con

verdict for the defendant because venience. Lisbon v. Lyman, 49 N. the statute is unconstitutional must H. 553, 577; State v. Perkins, su

be overruled, and that the exception pra; State v. Keggon, supra. The to the instructions given to the jury convenience and reasonableness of

must be sustained.

New trial. the rule, and the justice of the principle upon which it is based, are

All concur.

struction-mak

evidence.

ANNOTATION.

Constitutionality, construction, and effect of statute making possession of

intoxicating liquor evidence of violation of law.

Statutes declaring what shall be Neb. 244, 115 N. W. 784, 117 N. W.997 presumptive or prima facie evidence (the same). of any fact have been held by the New Hampshire. STATE v. LAweight of authority to be constitu- POINTE (reported herewith) ante, tional and valid unqualifiedly in civil 1212. See also State v. Desmarais cases, and in criminal cases with cer- (1924) - N. H. — 123 Atl. 582. tain qualifications. 10 R. C. L. 864. North Carolina.-State v. Barrett

The evidentiary facts must be re- (1905) 138 N. C. 630, 1 L.R.A.(N.S.) lated to and have a tendency to es- 626, 50 S. E. 506; State v. Wilkerson tablish the fact of which they are (1913) 164 N. C. 431, 79 S. E. 888; declared to be prima facie evidence. State v. Russell (1913) 164 N. C. 482, Ibid.

80 S. E. 66; State v. Randall (1915) There are numerous cases sustain- 170 N. C. 757, Ann. Cas. 1918A, 438, ing the validity of statutes making the 87 S. E. 227. See also State v. Mcpossession of intoxicating liquor Intyre (1905) 139 N. C. 599, 52 S. E. prima facie evidence of violation of 63. law.

Oklahoma.-Caffee v. State (1915) Alabama.-Southern Exp. Co. v. 11 Okla. Crim. Rep. 485, 148 Pac. 680; Whittle (1915) 194 Ala. 406, L.R.A. Sellers v. State (1915) 11 Okla. Crim. 1916C, 278, 69 So. 652; Ogden Rep. 588, 149 Pac. 1071, State (1916) 15 Ala. App. 9, 72 So. Oregon.See State v. Harris (1921) 587; Dees v. State (1917) 16 Ala. App. 101 Or. 410, 200 Pac. 926. 97, 75 So. 645. See also Fitzpatrick v. Rhode Island.-See State v. Higgins State (1910) 169 Ala. 1, 53 So. 1021; (1881) 13 R. I. 330; State v. Mellor Toole v. State (1910) 170 Ala. 41, 54 (1882) 13 R. I. 666. So. 195; Ex parte Woodward (1913) South Dakota.—State v. Humphrey 181 Ala. 97, 61 So. 295; Hauser v. (1920) 42 S. D. 512, 176 N. W. 39. State (1912) 6 Ala. App. 31, 60 So. 549. Virginia.—Pine v. Com. (1917) 121

Connecticut.-State v. Cunningham Va. 812, 93 S. E. 652. (1856) 25 Conn. 195 (presumptive evi- Washington.-State v. Gray (1917) dence); State v. Wheeler (1856) 25 98 Wash. 279, 167 Pac. 951; State v. Conn. 290 (the same).

Blackwell (1918) 103 Wash. 337, 174 Illinois.-People v. Beck (1922) 305 Pac. 646. Ill. 595, 137 N. E. 454.

West Virginia.-State v. Tincher Iowa.—State V. Jarvis (1917) (1917) 81 W. Va. 441, 94 S. E. 503. Iowa, - 165 N. W. 61 (presumptive In Ex parte Woodward (1913) 181 evidence). See also Santo v. State Ala. 97, 61 So. 295, the court sustained (1856) 2 Iowa, 165, 63 Am. Dec. 487; "the constitutionality of the section of State v. Intoxicating Liquors (1899) the Alabama statute which provided 109 Iowa, 145, 80 N. W. 230.

that “the keeping of liquors or beverKansas.-State v. Sheppard (1902) ages that are prohibited by the law of 64 Kan. 451, 67 Pac. 870.

the state to be manufactured, sold, or Mississippi. See Gillespie v. State otherwise disposed of, in any building (1910) 96 Miss. 856, 51 So. 811, 926. not used exclusively for a dwelling,

Montana.-State v. Lewis (1923) shall be prima facie evidence that they Mont. 216 Pac. 337.

are kept for sale or with the intent Nebraska.—Durfee v. State (1897) to sell the same, contrary to law." 53 Neb. 214, 93 N. W. 676 (presump- See also, as to an ordinance, Borok v. tive evidence); Parsons

V. State Birmingham (1914) 191 Ala. 75, 67 (1901) 61 Neb. 244, 84 N. W. 65 (the So. 389, Ann. Cas. 1916C, 1061. Simisame); Yeoman v. State (1908) 81 larly, in Fitzpatrick v. State (1910)

169 Ala. 1, 53 So. 1021, the court sus- being no evidence upon the latter tained an act providing that the stor- question. ing of any of the prohibited liquors In State V. Desmarais (1924) in any building not used exclusively N. H. — 123 Atl. 582, it was held that as a dwelling house shall be prima the statute does not make possession

ie evidence that they were kept for of intoxicating liquor conclusive evian unlawful purpose.

dence of violation of law. So, in Santo v. State (1856) 2 Iowa, In State v. Cunningham (1856) 25 165, 63 Am. Dec. 487, the court af- Conn. 195, the court sustained the confirmed the power of the legislature to stitutionality of a statute providing make the keeping of spirits in certain that proof of the finding of the liquor circumstances, or in any but certain in the defendant's possession (except circumstances, presumptive evidence in certain places) “shall be received of keeping with intent to sell.

and acted upon by the court as preIn State v. Higgins (R. I.) supra, sumptive evidence that such liquor the court sustained a statute provid- was kept or held for sale, contrary to ing that, in prosecutions for the keep- the provisions of the act;" but the ing of nuisances, "evidence of the conviction was

reversed

on the sale or keeping of intoxicating liquors ground, apparently, that the jury, perfor sale, in any building, place, or haps, understood that the question of tenement shall be prima facie evi- intent was withdrawn from them by dence that the sale or keeping is il- the charge, which was that the law legal," and in State v. Mellor (R. I.) made the finding sufficient evidence supra, the court sustained a statute of the intent of the prisoner to sell declaring that "evidence of the sale, the same in violation of the statute, or keeping of intoxicating liquors for unless such evidence is rebutted by sale, in any building, place, or tene- evidence going to show a different inment, shall be evidence that the sale tent, and, in the absence of any exor keeping is illegal, and that such planations of the purpose for which premises are nuisances," observing the same was so kept in said store, that it was for the jury, not for the the jury may lawfully found a conviccourt, to say whether or not the in- tion thereon. ference or presumption was sufficient

A statute making possession of to prove the fact for the proof of more than 1 quart of liquor prima which it is adduced.

facie evidence of intent to violate the It is within the constitutional pow

statute against illegal sales is not un

constitutional as invading the prover of the legislature to declare the

ince of the judiciary, and depriving possession of intoxicating liquor, except in a private dwelling unconnect

accused of the presumption of innoed with a place of business, by a per

cence, or as making prima facie evi

dence of guilt a fact which has no reson not legally authorized to sell such liquor, to be prima facie evidence of

lation to, or does not tend to prove, the

criminal act. Nor does such statute its possession for purposes of illegal

deny the equal protection of the laws sale. State v. Sheppard (1902) 64

to the citizens of the county to which Kan. 451, 67 Pac. 870.

it applies. State v. Barrett (1905) 138 The reported case (STATE v. LA

N. C. 630, 1 L.R.A.(N.S.) 626, 50 S. E. POINTE, ante, 1212) sustains a statute 506. making the possession of intoxicating In State v. Wilkerson (1913) 164 liquor prima facie evidence of a vio- N. C. 431, 79 S. E. 888, supra, the court lation of the law, but, construing the sustained the constitutionality of a expression to mean evidence to be con- statute making possession of more sidered by the jury, it reverses a than 1 gallon of spirituous liquor at conviction on the ground that it was any one time, whether in one or more error to charge the jury that, if they places, prima facie evidence that it found possession was proved, they was kept for sale in violation of law; must also find that it was illegal, there but a conviction was reversed because the

the trial court, having instructed the due process of law, since it denied him jury that the fact of his having in the benefit of the presumption of inhis possession more than 1 gallon of nocence, took from the jury the right the liquor made out a prima facie case to determine the facts, and encroached against

defendant, further upon the judicial department of the charged them that it was then the government. duty of the defendant “to go forward In State v. Intoxicating Liquors and satisfy the jury, by the greater (1899) 109 Iowa, 145, 80 N. W. 230, a weight of the evidence, that he did not proceeding against certain liquors, have the liquor in his possession for where the statute provided that the the purpose of sale.” And this error, finding of intoxicating liquors in the it was held, was not cured by the sub- possession of one not legally authorsequent charge that, if the jury had a ized to sell or use the same, except, reasonable doubt about the facts re- etc., shall be presumptive evidence cited by the court, being those which that such liquors are kept for illegal the defendant must prove by the sale, the court approved an instrucgreater weight of the evidence, they tion to the jury that the evidence should acquit.

proved conclusively that the bottles The same act was approved in State were found by the sheriff in the posv. Russell (1913) 164 N. C. 482, 80 S. session of the claimant upon the premE. 66, the court stating that the judge ises described; from such fact the law did not shift the burden to the defend. presumes that the same were kept ant, as was done in State v. Wilkerson, for illegal sale; that this presumption but had kept it where it belonged, upon was not conclusive, and that the the state-followed in State v. Randall claimant might rebut by proving that (1915) 170 N. C. 757, 87 S. E. 227, the liquor was not kept for an illegal Ann. Cas. 1918A, 438.

purpose, but that it was not sufficient A statute making the possession of for him to prove that he himself did more than a certain amount of intoxi- not keep same for an illegal purpose, cating liquor prima facie evidence of but he must also prove that same was an intent to violate provisions of the not so kept by anyone else. The court prohibitory law is not unconstitution- stated that, in view of the fact that he al as invading the province of the demanded its return, he was required judiciary, and depriving the accused to show that it was not kept by anyone of the presumption of innocence, or as for that purpose. making prima facie evidence of guilt In People v. Beck (1922) 305 Ill. a fact which has no relation to, or 593, 137 N. E. 454, the court sustained does not tend to prove, the criminal a statute which provided that the act. Caffee v. State (1915) 11 Okla, possession of intoxicating liquor by Crim. Rep. 485, 148 Pac. 680; Sellers

any person not legally permitted to v. State (1915) 11 Okla. Crim. Rep. possess intoxicating liquor shall be 588, 149 Pac. 1071.

prima facie evidence that such liquor It may be noted that in Gillespie v. is kept for the purpose of being State (1910) 96 Miss. 856, 51 So. 811, bartered, furnished, or otherwise dis926, where the defendant was con- posed of in violation of law, and disvicted of unlawfully selling intoxicat- allowed the claim of the defendant ing liquors, the court sustained a that the statute had imposed upon him statute providing that the fact that the burden of proof, thus requiring any person has in his possession ap- him to prove his innocence instead of pliances adapted to retailing liquors requiring the prosecution to establish shall be presumptive evidence that his guilt beyond a reasonable doubt, the person owning or controlling the as the defendant was not required to appliances is engaged in selling or establish his innocence beyond a reabartering intoxicating liquors in vio- sonable doubt. lation of the law, although it was In State v. Lewis (1923) Mont. argued that the statute was unconsti- 216 Pac. 337, the court sustained tutional as depriving the defendant of the validity of a statute providing that

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