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the possession of liquors by any per- defendant's possession, the presumpson not legally permitted under the tion of innocence, to which he would law to possess liquor shall be prima ordinarily be entitled, must give way, facie evidence that such liquor is kept and he is presumed to have violated for the purpose of being sold, etc., in the chapter aforesaid unless he can violation of law, and that the burden satisfactorily explain such possession. of proof shall be upon the possessor, Yeoman v. State (1908) 81 Neb. 244, in any action concerning the same, 115 N. W. 784, 117 N. W. 997. prove that such liquor was lawfully In State v. Humphrey (1920) 42 S. acquired, possessed, and used. See D. 512, 176 N. W. 39, the court, in susalso State v. Griebel (1922) 65 Mont. taining the statute providing that 390, 211 Pac. 331.

proof of the finding of intoxicating In Durfee v. State (1897) 53 Neb. liquors in the possession of the ac214, 73 N. W. 676, where the court cused, unless he is one legally authorsustained a statute making it unlaw- ized to sell or possess the same, shall ful for any person to keep for the pur- be presumptive evidence that such pose of sale, without a license, any liquors were kept contrary to law, spirituous, etc., liquor, and declaring said: “It was the evident intent of the that possession of the liquor shall be legislature to cast upon the accused presumptive evidence of guilt "unless, found with intoxicating liquors in his after examination, he shall satisfac- possession, the burden of showing the torily account for and explain the purpose for which he kept and stored possession thereof, and that it was not such liquor. Appellant contends that kept for an unlawful purpose,” the this statutory presumption is an uncourt, in overruling an objection that constitutional infringement of his peran instruction following the statute sonal rights, and compels him to give was erroneous as shifting the burden evidence against himself. We are of of proof from the state to the accused, the opinion that this contention is not stated that the presumption was not tenable." conclusive, but that the effect of the But it has been held that the legisstatute was to cast the burden upon lature may not make possession conthe person having intoxicating liquors clusive evidence of a violation of law in his possession, to establish that which involved elements other than they were not kept for sale in violation the possession. STATE V. LAPOINTE of law. Followed in Parsons v. State (reported herewith) ante, 1212; State (1901) 61 Neb. 244, 85 N. W. 65. v. Sixo (1915) 77 W. Va. 243, 87 S. W.

Where the statute provided that the 267. See also Sellers v. State (1915) possession of intoxicating liquors shall 11 Okla. Crim. Rep. 588, 149 Pac. 1071. be presumptive evidence of a violation Thus where the statute provided of the chapter regulating the license that the liquors in the possession of and sale of malt, spirituous, and any person violating the particular vinous liquor, it was held that, as to section of the statute may be seized counts in the indictment charging de- and “shall be conclusive evidence of fendant with selling intoxicating the unlawful keeping, storing, and liquors without a license, the defend selling of the same by the person havant was presumed to be innocent, and ing such liquors in his possession," it that presumption was sufficient to ac- was held that that part of the statute quit him until the evidence estab- which made such possession “conclulished his guilt beyond a reasonable sive evidence" was unconstitutional doubt; but that as to those counts and void.” State v. Sixo (1915) 77 which charged the defendant with W. Va. 243, 87 S. W. 267, supra. having such liquors in his possession It is error to instruct the jury that, with the intent and for the purpose of if they find beyond a reasonable doubt unlawfully selling and disposing of that the defendant had possession of them, a different rule should prevail, more than a certain amount of liquor, as the statute clearly provided that then it devolved upon the defendant when such liquors are found in the to produce sufficient evidence to create a reasonable doubt as to his for sale; but the notorious character guilt, as the statute does not require of any such premises, or the notoriousthe jury to find the evidence conclu- ly bad or intemperate character of sive. Sellers v. State (Okla.) supra. persons frequenting the same, or the Miscellaneous.

keeping of the implements or apIt may be noted that in Hawes v.

purtenances usually appertaining to Georgia (1922) 258 U. S. 1, 66 L. ed.

grogshops, tippling shops, or places 431, 42 Sup. Ct. Rep. 204, it was held

where such liquors are sold, shall be that a state may, consistently with the

prima facie evidence that said liquors due process of law clause of U. S.

are kept on such premises for the purConst., 14th Amend., create by statute

pose of sale within this state." a rebuttable presumption of guilty

It may be noted that the cases cited knowledge by the actual occupant of

in the reported case (STATE V. LA. a farm, from a finding upon the prem

POINTE, ante, 1212) from Gray (Mass.) ises of apparatus for distilling pro

arose under statutes making certain hibited intoxicating liquors, although,

deliveries of intoxicating liquors under the local law, a defendant in a

prima facie evidence of a sale. criminal case may not testify as a wit.

In Kunsberg v. State (1917) 147 ness, and husband and wife are not

Ga. 591, 95 S. E. 12, where the terms of competent or compellable to give evi

the statute do not appear, it was held dence in any criminal proceeding for

that, “with certain limitations, the or against each other.

legislature may enact that, when In State v. Beswick (1881) 13 R. I.

specified facts have been proved, they 211, 43 Am. Rep. 26, the court declared

shall be prima facie evidence of the unconstitutional a statute providing guilt of the accused, and shift the that "it shall not be necessary to prove

burden of proof.” an actual sale of the liquors

Cases in relation to drugs and in any building, shop, saloon, place, or narcotics are not included. See, for tenement in order to establish the fact example, State v. Mark (1923) that any of said liquors are there kept Mont. 220 Pac. 94. B. B. B.

EX PARTE JOE L. EARMAN.

Florida Supreme Court - March 15, 1923.

(- Fla. 95 So. 755.) Perjury — false denials in contempt proceedings.

1. In contempt proceedings for writing a letter to a judge relative to a case pending before the judge, and for publishing the letter to others, with statements that reflect on the judge, where the person so charged denies on oath making the statements, and denies an intent to reflect on the judge in writing the letter or in showing it to others, and the letter is not clearly contemptuous in its import, imprisonment should not be adjudged; but, if perjury is committed in the denials made, a prosecution therefor may be had in due course of law.

[See note on this question beginning on page 1239.] Constitutional law creation of in designated tribunals and judges, courts.

and such tribunals and judicial offi2. The Constitution (art. 5, § 1) cers are by the law protected from invests “the judicial power of the state" sult and interference, for the purpose

Headnotes by WHITFIELD, J.

And ap

(Fla. —,95 $o. 755.) of giving them their due weight and for the benefit of the opposing party, authority in performing their judicial therein. functions in the interest of orderly [See 6 R. C. L. 490; 2 R. C. L. Supp. government.

132; 4 R. C. L. Supp. 419.] See 6 R. C. L. 488; 4 R. C. L. Supp. Habeas corpus – imprisonment for 419.]

contempt. Contempt - power to punish.

8. When a court has adjudged an 3. The courts and judges have,

imprisonment for contempt of court,

a superior court may, in appropriate under constitutional government, in

habeas corpus proceedings, test the herent power by due course of law ap

validity of the imprisonment by deterpropriately to punish, by fine or im

mining whether the court that imprisonment or otherwise, any conduct

posed the sentence of imprisonment that in law constitutes an offense

had jurisdiction of the person, had against the authority and dignity of a court or judicial functions.

authority to render such a sentence, propriate punishment may be imposed

and had a proper predicate for its

sentence in the charge and the proofs by the court or judge whose authority or dignity has been unlawfully as

or admissions duly adduced before the

sentence. sailed. [See 6 R. C. L. 515; 2 R. C. L. Supp.

[See 6 R. C. L. 541; 2 R. C. L. Supp.

152.] 141; 4 R. C. L. Supp. 422.]

- when prisoner discharged. Words and phrases "direct con- 9. If a person is legally adjudged tempt.”

and imprisoned for contempt of court, 4. A "direct contempt" is an insult and the penalty imposed does not viocommitted in the presence of the court late fundamental rights, he will not or of a judge when acting as such, or be discharged from such imprisona resistance of or an interference with ment on habeas corpus; but, if the the lawful authority of the court or matters complained of in the contempt judge in his presence, or improper proceedings do not in law constitute conduct so near to the court or judge contempt of court, an adjudication acting judicially as to interrupt or that they do constitute contempt does hinder judicial proceedings.

not make it contempt, and relief from [See 6 R. C. L. 491; 2 R. C. L. Supp. imprisonment for matters not amount133; 4 R. C. L. Supp. 419.]

ing to contempt may be had by habeas

corpus. “constructive contempt.”

(See 6 R. C. L. 541; 2 R. C. L. Supp. 5. An indirect or "constructive con. 152.] tempt” is an act done, not in the presence of a court or of a judge acting

- extent of power of court. judicially, but at a distance, under cir

10. The power of the court, in hacumstances that reasonably tend to

beas corpus proceedings, to determine degrade the court or the judge as a

the validity of an imprisonment for judicial officer, or to obstruct, inter

contempt of court, is not to test diverrupt, prevent, or embarrass the ad

gent contentions as to the weight of ministration of justice by the court or

the evidence adduced in proceedings judge.

to punish as for a criminal contempt [See 6 R. C. L. 488.]

of court, when the hearing of conflict

ing evidence is appropriate, but the -"criminal contempt."

function of the court in habeas corpus 6. A “criminal contempt” is conduct

is simply to consider the legal questhat is directed against the authority

tion whether the evidentiary facts, and dignity of a court or of a judge

found by the court in adjudging the acting judicially, as in unlawfully as- contempt, had any reasonable tendsailing or discrediting the authority or ency to sustain the action taken based dignity of the court or judge, or in do- upon the finding by the court. ing a duly forbidden act.

Contempt - discharge on oath. [See 6 R. C. L. 490; 2 R. C. L. Supp.

11. In contempt proceedings at com132; 4 R. C. L. Supp. 419.]

mon law, “if the party can clear him

self upon oath, he is discharged; but, -“civil contempt.”

if perjured, may be prosecuted for the 7. A “civil contempt” consists in perjury." failing to do something ordered to be [See 6 R. C. L. 523, 534; 2 R. C. L. done by a court or judge in a civil case Supp. 145, 150.]

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effect of full answer to charges.

12. In proceedings for alleged con- dy, if the party charged fully answers structive contempts, except, perhaps, all the charges against him, he shall where they are to enforce a civil reme- be discharged.

(Ellis, J., dissents.)

APPLICATION by petitioner for a writ of habeas corpus to secure his discharge from custody to which he was alleged to have been committed for contempt of court. Petitioner discharged. Statement by Whitfield, J.:

regular session of the court on that In a petition for a writ of habeas date he was sentenced to pay a fine corpus filed in this court, it is al- of $100 and serve twenty days in leged that the petitioner is illegally jail at hard labor. deprived of his liberty by the sher- “The police department of West iff of Palm Beach county, Florida, Palm Beach was very active last by virtue of a judgment and com- week, with result that many cases mitment in contempt proceedings under the charge of lewd and lasbefore the judge of the fifteenth ju- civious conduct were presented for dicial circuit.

trial. It appears that the circuit judge "Yesterday, a writ of habeas issued a rule against Joe L. Ear- corpus was sued out before your man, setting forth:

Honor, and Edward Antoles was “That Joe L. Earman, judge of released on a nominal bond, and the the municipal court of the city of hearing fixed for Monday, January West Palm Beach, Florida, did, on 29, which gave him his liberty for the 25th day of January, A. D. 1923, five days. at which time there was pending in “The ordinance under which Anthe said circuit court the case of toles was convicted has been atEdwin Antelo, petitioner, against tacked in this habeas corpus proLeonard Bailey, chief of police of ceedings. the city of West Palm Beach, de- "The idea in this court's mind fendant, the same being a petition being that fairness and enforcefor writ of habeas corpus, write to ment of law should be equally exthe judge of the fifteenth judicial tended to all men, other violators circuit, a letter regarding said case had been convicted for lewd of Antelo v. Bailey, which letter and lascivious conduct were brought was in the following words, to wit: into court this morning. "West Palm Beach, Florida.

"Edward Antoles, for whom ha"January 25, 1923.

beas corpus proceedings were insti“Hon. Edwin C. Davis, Judge 15th tuted, pleaded guilty. Judicial Circuit,

“It seems that Antoles has influ"West Palm Beach, Florida.

ential friends who have signed his Dear Judge:

bond, and he also has funds to se"This letter is written for your

cure counsel. Honor's information, and as a com- “Antoles was sentenced on Janmunication from a judge of an inferior court to the judge of an an- "Tom Johnson, a carpenter empellate court.

ployed on the El Verano Hotel, also “Edward Antoles was tried in pleaded guilty to the charge of lewd the municipal court of West Palm and lascivious conduct with one Beach on January 20 on the charge Myrtis Hansen, and was sentenced of lewd and lascivious conduct with to pay a fine of $75 and serve five one Kat Powell.

days in jail. “Sentence was deferred until “Johnson is without influential Monday, January 22, and at the friends or funds.

uary 22.

(- Fla, 95 So. 755.) “Circumstances, however, were nominal bonds pending final decinot as revolting or disgusting, when sion of the Antoles habeas corpus the fundamentals of decency are proceeding. considered, as was the violation by "I took the position, your Honor, Antoles.

that the law should apply equally "I have ordered Johnson's re- to all men, and if Edward Antoles, lease on a nominal bond for his ap- self-confessed violator, as indicated pearance in my court, Tuesday, by his plea of guilty, can obtain his January 30, for final disposition, as freedom, even for five days, others the Antoles habeas corpus proceed- less fortunate, who also plead guiling is scheduled for a hearing be- ty, but are unable through lack of fore your Honor at 10 o'clock Mon- funds to secure legal counsel, and day morning, January 29.

are without influential friends, “Katie Powell, a negro woman of should have like consideration exdissolute character, who has been tended to them. before the courts of Palm Beach “As they are therefore unable to and West Palm Beach many times, reach your court through lack of was convicted under the charge of funds, and as judge of the municlewd and lascivious conduct with ipal court, I have attempted justice Edward Antoles.

and fairness towards them. “She pleaded guilty and, pending "As will be observed, this comthe final decision in the Antoles há- munication is not a brief on law, beas corpus proceedings, I have or- but a statement of facts. dered her release on a nominal "Respectfully submitted. bond for appearance in the munic- “[Signed] Joe L. Earman, Judge ipal court Tuesday, January 30. of the Municipal Court of West

“Zene Russell, implicated in this Palm Beach, Florida. same case under the charge of visit

"Said letter was written by the ing a house of ill fame, is set for

said Joe L. Earman and was delivtrial January 27, and he is now at liberty under a cash bond for $100.

ered to and read by the court while “This case will be continued un

the case of Antelo v. Bailey, aforetil after the Antoles habeas corpus

said, was pending in the circuit proceeding has been disposed of.

court aforesaid undisposed of, and "Johnnie Williams, a negro,

before said case was heard on its without funds and unable to pay merits, and before the date set for fine or secure legal counsel, was the hearing thereof." convicted January 22 on the charge

And that: of lewd and lascivious conduct with "In order that the said Joe L. Mamie Ford, to which he pleaded Earman may be specifically advised guilty and now serving out his sen- as to wherein said letter was false tence at the rate of $1 per day, was and defamatory, and wherein it had also liberated on a nominal bond for a tendency to impede, embarrass, his appearance in the municipal and obstruct the court in the due court on January 30.

administration of justice, and in “Mamie Ford, a negress, without order that he may be advised as to funds to pay a fine or secure legal wherein the statements which he counsel, was also convicted on Jan- made at the time of the publication uary 22 under the charge of lewd and exhibition of said letter were and lascivious conduct with Johnnie false and defamatory and therefore Williams, to which she pleaded constituted contempt of this court, guilty.

the following specifications are "The sentences of Johnnie Wil- made: liams and Mamie Ford are each to “(1) In writing said letter as a pay a fine of $25 or twenty-five whole, you, Joe L. Earman, dealt days in jail.

with a case which had already been "Both have been released on passed upon by you as judge of the

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