Gillespie v. State, 51 So. 811

Gillespie v. State

51 So. 811 | Miss. | 1910

Mates, J".,

delivered the opinion of the court.

Under section 1747, c. 115, p. 117, of the Acts of 1908, the-verdict of the jury was fully warranted by the proven facts-This section provides, among other things, that the fact that any person has in his possession appliances adapted to retailing, liquors shall be presumptive evidence that the person owning- or controlling the appliances is engaged in selling or bartering intoxicating liquors in violation of the law. The above proof' was made before the jury, and the court then instructed that if the jury believed from the evidence beyond a reasonable-doubt that defendant was found in possession of appliances-which she owned or controlled, and that these appliances were adapted to retailing, then this proof was presumptive evidence-that she was selling liquor unlawfully, and if the jury believed from the evidence and beyond a reasonable doubt that defendant did sell the -liquors as charged in the indictment, then they should convict. The requirements of this statute, both as to-proof under it and as to the law applicable under this proof,, were observed in every parrticular. The defendant offered no-proof whatever to rebut the presumption of law arising from the proof of the above facts, and, if the jury believed that the appliances were found as testified to, then there was nothing-for them to do but convict. It may have been that the mere-denial by' defendant that she had unlawfully sold intoxicating-liquors, on the- facts in .this record, would have been sufficient. *859to overcome tbis presumption; but, in the absence of any proof in denial of the charge, the conviction must stand. . As Mr. Wigmore says, in his valuable treatise, on this very question of presumption: “The peculiar effect of a presumption of law is merely to invoke a rule of law compelling the jury to reach the conclusion 'in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary, the presumption disappears as a rule- of law, and the case is in the jury’s hands free from any rule.” 4 Wigmore’s Evidence, p. 3534, § 2491.

J. B. Stirling, attorney-general, for appellee,

answered to the suggestion of error, citing Belcher v. Mhoon, 47 Miss. 613 State v. Thomas, 144 Ala. 77, 6 -Am. & Eng. Ann. Oases, 744 and note; People v. Common, 36 Am. St. Eep. 668.

Although this conviction is had in the face of a record containing no direct proof that appellant did unlawfully sell intoxicating liquors, it does contain such proof as the law says shall constitute, in the absence of any opposing testimony, presumptive evidence of guilt, and in this condition the court is bound to affirm. Affirmed.

After the delivery of the foregoing opinion counsel for appellant, Robert P. Thompson and Hallam & Cooper, filed a suggestion of error, urging that the statute, Laws 1908, ch. 115, p. 116, see. 1747, was unconstitutional as depriving appellant of due process of law, since it denies a defendant the-benefit of the presumption of innocence; takes from the jury the right to determine the facts and encroaches upon the judicial department of the government.

Mates, J., delivered the following response to the suggestion of error.

The constitutionality of acts similar to the one involved in this cause is discussed 'in the case of People v. Cannon, 139 *860N. Y. 32, 34 N. E. 759, 36 Am. St. Rep. 668, and in a note to be found in 6 Ann. & Eng. Ann. Cas. 746, 747. Tbe great weight of authority sustains the validity of this law, free from constitutional objection. That there are limits on the power of the Legislature to- enact statutes making certain facts prima facie evidence of other facts is well recognized by all authorities. What these limitations are need not be attempted to be stated here, but in the authorities cited above will be found a well-stated rule on this subject.

Suggestion of error is overruled.