*1 IN THE SUPREME COURT. State Babbett. STATE v. BARRETT. (Filed 11, 1905.) April Facie Spirituous Liquors Liquors —Possession of —Prima Evidence Sale—'-Buies Evidence—Statutes Unlawful —Constitutionality. 434, 1903, Chapter making person Acts of it unlawful for
1.. dealers, except keep licensed to sell or for sale within Union County any spirituous providing person keep possession liquor “shall in his than quantity to the of more prima county, said one within it shall be quart facie sale,” keeping of his it for is not unconstitutional as an invasion legislative judicial department government, depriving nor as the defendant of the of innocence. legislature change power 2. The has the the rules of evidence and n to declare that certain facts or conditions when shown shall con- prima power guilt; stitute evidence of such to be exercised facie within the limitations of the Constitution. arbitrarily 3. A statute is not void because it makes an act lawful (cid:127) prima guilty in itself evidence of a intent. sell, keeping liquor In an keeping
4. indictment with intent to proved necessarily is an essential fact relevant and the legislature giving intensity an additional proof to the of a fact, relevant, issue, tending which is the fact in acting power within its and the courts cannot undertake to fix the quantity in respect prescribed limit as the basis of the presumption. legislature pass application 5. The statutes of local regulating liquor prescribe traffic and to rules of evidence charges applicable to for their violation. making A than a keeping quart 6. of more in a county keeping certain evidence of it with intent sell, IV., 1., Constitution, does not violate Article Sec. U. S. prohibits any making or enforcing -any State from law any person jurisdiction within its equal pro- which denies tection of law. the. Bbown, J., dissenting. 6B1 C.] Babbett. *2 M. beard Barrett, Judge
INDICTMENTagainst Sampson Term, of tbe H. a at 1904, tbe November jury, Justice of Union Court Superior County. and wilfully keep-
Defendant was with unlawfully charged to form tbe for sale, etc., spirituous liquors contrary ing intro- tbe a of not State etc. statute, Upon guilty plea tbat on Williams, duced A. wbo testified tbe night one J. see if and Mr. went tbe road to witness Bivens
question up mile or Tbat about a bead tbe defendant off. could they met him. He bad two five kegs two from town they gallon in a and one pint of corn a one-balf jug whiskey, gallon be went tbe over a mile from on bottle, town; public a little over with a lap was covered road in a top buggy. Whiskey a wbo man, robe. from colored be it up country Said got it it did not him, belonged be did not know. Said belong tell wbo belonged that be would it some other people; would it tbat be up. when was do necessary so; it ad- character. It was of tbe same testimony There was other He to sell bad no license liquor. mitted tbat tbe defendant tbe court introduced no Defendant testimony. requested tbe whole evidence tbe “tbat jury, upon charge writing be tbe should find tbe defendant verdict cannot you guilty, was Defendant This refused. excepted. guilty.” as fol- tbe other things, Tbe court charged jury, among de- in all where lows: the rules of evidence cases “Under of tbe State duty is it is the crime, fendant charged defendant’s doubt tbe tbe reasonable beyond satisfy is indicted Tbe statute under which tbe defendant guilt. than licensed retail dealers that if
provides any person under shall in bis to tbe laws, State possession liquors keep of more than one within said it shall quantity quart county, evidence of his it within the sale, prima keeping facie of this Act. Tbe insists tbat has shown to State meaning bad than one tbat the defendant more you quart liquor bis in said Tbe insists Union. State IN THE SUENEME COUET. Babbett.
tbat makes’ a case of tbe defendant prima guilt against and that it has shown to therefore under rules of evi- yon dence statute, that the defendant prescribed by guilty. The law is that it is is a rather it presumed, case, is, out, case first made nothing impression else had it for sale, the defendant he appearing, shown to have more than one his quart liquor kept pos- session within the at one time. That is what the county State insists It insists that it has shown upon. you had defendant and that this statute is applicable *3 find that it is him The defendant your duty guilty. him, contends that the time the witness met at. prosecuting that he stated that the was not that he no ac- his, liquor gave count of it further than to that it to some other say belonged a The State does not his confession for parties. rely upon conviction in this case,.but the fact that the was upon liquor found in his the statute. this possession, upon Taking evidence, this rule of if find a rea- applying you beyond sonable that he had the it for sale, kept you doubt will if return verdict of not the State has not satis- guilty; fied all of the will verdict return a you upon testimony, you of not To this A ver- guilty. charge excepted. defendant dict of for new trial —motion denied. guilty Judg- —motion ment and the defendant. appeal by Gilmer, D.
Robert for the State. Attorney-General, Redwine & for the defendant. Stack after Connor, J., the facts: The defendant is in- stating for dicted Laws 434, violating provisions chapter that it 1903, shall unlawful for provides any person, other than licensed etc., sell, retail dealers to exchange, barter or of for or to within dispose sale, gain, keep of Union, vinous, malt and intoxi- any spirituous, etc. That other than liquors, person licensed cating SPRING- 0.] Babkett. dealers, retail under State shall laws, his keep of more than one within quantity quart n prima it shall be of his county, it keeping for sale, within the of this Act. meaning
The defendant contends that the section of the statute under which he was convicted is unconstitutional and void for that: 1st. It invasion of the legislative de- judicial 2nd. department That government. the defendant of the
prives of innocence and presumption him the burden of puts upon that he is not showing guilty.
There can be no serious doubt of the legisla- ture to the rules of evidence and to change differ- prescribe ent rules in different classes of cases to well defined subject limitations.
“Laws which the evidential prescribe force of certain facts by enacting such facts a proof given presump tion shall arise or which determine what facts shall consti tute case accused, the bur against casting den of him of proof upon disproving rebutting pre are not sumption, generally unconstitutional, regarded even of innocence. though they may destroy *4 An accused has no vested in this or person right any or law of evidence or law procedure cannot, within making power constitutional limits, deprive him of. The rules of evidence be at existing changed time enactment. But legislative legislative power must be exercised within constitutional limitations so that no constitutional or of the accused is de right privilege He cannot be stroyed. of a fair and deprived impartial trial a of his by jury to the law of the land.” peers according Smith, McLain Law., Crim. sec. 16; Com. v. 166 Mass., 370; State v. Conn., a Cunningham, Discussing in statute some similar ours, respects Court Supreme Williams, of in Massachusetts, Com. v. 6 Gray (72 Mass.), 1, says: Nor does it that the establishment of this new appear IN THE SUPREME COURT.
State ©. Barrett. rule of evidence is tlie result of instead degree judicial, or legislative action; that it does any way upon infringe of the accused to bave bis or in indisputable right guilt nocence ascertained and the made him charge against passed The statute upon to a certain ex by jury. only prescribes, tent and under particular circumstances, what effect legal shall be to a given particular evidence, it stands species and alone is left entirely This neither wholly unexplained. determines the conclusively innocence of the guilt party who is nor withdraws from accused, and right duty the issue to be tried. passing upon determining The burden of remains proof continually upon govern * * * ment to establish the accusation, it makes. and effect of the clause of the only purpose particular to are to a certain of artificial objected give degree force to a fact until such are afforded designated explanations as to show that it is at least doubtful whether the proposed effect to be it; attributed to but the fact it statutory ought self is still to be shown-and established sufficient to by proof * * * convince and the minds of the Mak satisfy jurors. out a does not the burden of ing prima, change proof. * * * But if the government, proving delivery any quantity spirituous liquor, support prosecution law, also, violation of the as it must alleged almost as a of the the cir do, transaction, necessarily part then those circumstances it, cumstances immediate attending to be and considerd' case, become evidence ly weighed the naked would be jury; although delivery sale, so, evidence of indirectly, evi accused, yet accompanied by guilt proof being occurred, of the manner which the dence delivery he circumstances, is not to convicted un surrounding of all disclosed less consideration the facts thus just *5 are satisfied a reason before the jury they beyond placed Merchant, v. 103 doubt of his Board Excise able guilt.” N. 1905. 635 SPRING TERM, C.] Barrett. Cannon, Y., 143; N. v. 139 Y., v. People 32; Voght State, Smith, 124 Lincoln Ind., 358; v. Santo Vt., 328; State, Iowa, Black on 165; Intox. The Liq., legisla of this, ture and we State, other has presume every frequently the rules of evidence and declared that certain facts changed or conditions, shown, when shall constitute evi prima facie dence of to do sus power so been guilt. always tained. sec. 983 of The By Code it made a misde “high meanor,” punishable by imprisonment penitentiary less than five sell “found to contain any years, or foreign properties the human ingredients poisonous sys-' tem.” If such are of “some found, upon analysis known chemist,” contain competent any matter, poisonous shall “it be evidence making against party this sale.” 1005, section By prohibiting carrying concealed off one’s own it is declared that weapons premises, shall have any person about his such any weapon, person such shall be evidence of concealment. prima facie The construction this been before statute has frequently this court, but the has not in case any legislature been questioned evidence, the rule of prescribe although Gilbert, as in decided, effect it has been State v. frequently C., 87 N. wherein “The declares 527, J., Ruffin, says: of a one’s shall having deadly upon person weapon concealment, its this of itself prima f-acie seems be done such under necessarily imply circumstances as will not amount to offense.” In cases, this court has held all of facts State, out was brought rebutted the defendant 1077 it is made a misde sec. acquitted. By to sell, minor, etc., meanor dealer etc., liquor the said to be a said minor —“Provided that knowing person shall be sale evidence of such giving away Section it to be a 1089, misdemeanor knowledge.” declaring to-sell makes the failure of Sheriff, mortgaged property, *6 THE SUPREME COURT. IN Barrett. of a sale with find the evidence
etc., to property prima facie binder, defeat, etc., intent rights mortgagee. misdemeanor to secrete or harbor Section 1109 makes it a of such desertion— seaman who has knowing deserted — shall he deemed that the concealment declaring not neces These and other statutes evidence knowledge. in on this the course of this State cite, show sary legislation of evi latest work on the law The author of the subject. in “A rule of presumption dence, subject says: discussing e., i. a the burden of proof, declaring rule simply changing or assumed from some main fact will be inferred that the There to the is introduced. other fact until evidence contrary has the on doubt, is not the least principle, legislature all rules of as it has over rules, control over such entire in subject in evidence particular, general procedure enshrined limitations of evidence expressly only * * * Yet this truth elementary the Constitution. and courts have repeatedly been repeatedly questioned, chiefly attention to question, vouchsafed unmerited of a true nature a hesitation appreciating through indefinite in some and a to associate tendency out all evidence of conclusively shutting manner the notion it. For the duty producing and that of merely shifting has almost everywhere prevailed, sound tunately, principle and hesita expense argument at an unnecessary though 1354. Evidence, tion.” on Wigmore intoxicating liquors, what intent a keeps “With person to be determined upon of fact for the jury, always question of that ques And disposing of all the evidence. view statute to consider keeping- are tion, required by they as statute, pre in the manner specified the articles But that evi intent. of an unlawful sumptive circumstances, and controlled rebutted by dence may sexton and car- instances of the in the would be the case case, other evidence as well as to, man alluded 63Y O.] Baeeett. State v.
whether shown the accused- his defense, the State in connection with the evidence proving possession. With *7 such evidence, the also take into jury the may consideration of the of the innocence accused.” v. presumption State Cun- The defendant ningham, that this to supra. says conceding true the statute is void for that it makes arbitrarily act lawful in itself evidence aof intent. prima guilty This criticism would to almost case which an apply every is act made evidence of As guilt. illustrating off one’s is weapon premises law- carrying entirely this — ful and has so, the do it been is said, secured the right by Const., Constitution. Art. sec. I., It has been expressly in this is held act In constitutional. respect State the court “It has been Cunningham, supra, says: said that the ais lawful spirituous act, and keeping being such, the has no constitutional it legislature make power of an evidence unlawful act. at common law are Many acts and the is lawful, of them yet performance prohibited by exercise of their legislature, legitimate the. sovereign sale Even the of such liquors is'not the common power.
law unlawful. is made so statute. And if the only can prohibit sale, such we see not legislature constitutionally not acts why they what shall be con- properly prescribe of an intent sidered to make the sale.” The will reflection show that this slightest the stat- objection sustained, ute could be the of the would be legislature denied. practically defendant next into calls question validity because he the fact made says evidence of has no intent relation to the criminal act and does guilty tend to it. because First, possession show an not tend to intent sell it,
does second, pos- more one of a than session quantity quart consistent entirely such personal domestic use. It must be some of the courts have conceded limitation placed IN THE SUPREME COURT. Barrett. J., in Peckham, v. Can upon, the power. legislative People non, are fact “The limitations says: supra, to rest must have some fair relation presumption to or connection with the main fact. The inference natural fact, the main because of the existence existence of fact must not be actually proved, merely purely unnatural or extraordi unreasonable, or wholly arbitrary and the accused must have each case a fair nary, oppor his submit whole case to defense, to make tunity decided after it has all the evi- to be weighed ' shall such as to it deuce, given weight Beswick, seem I., State v. R. 211. This case proper.” been criticised “The opinion following language: *8 discloses confused notions as to the nature of presumptions and burden of proof.”
“It has been these occasionally suggested legislative evidence, rules of or rules of presumption, any legislative be tested the and are invalid rationality, must by standard fall short of it. But this cannot be conceded. If they .the a can make fevidence at it cannot all, rule of legislature be. a more controlled standard judicial rationality, any than its economic fallacies can be invalidated the judicial Constitution, of economic from the truth. conceptions Apart the is not axioms of to either the obey legislature obliged economic All that rational evidence or axioms of science. does in an event is such either to render legislature fact which to inadmissible, admissible a was before or place on the burden of producing opposite' party. 4the is free done, or, When this has been to so jury decide; is failed not, far as it is this because the party voluntarily evidence. There is conclu- contrary adduce here nothing So as the exercise sive, prohibitive. long party may nothing his introduce and the exercise evidence, jurors freedom to no' their it amount of irrational rationally, freedom weigh 1905. 0.] Barrett. can on legislation result.” change Evidence, Wigmore 1354. sec. think that a full
We of the limitation does not recognition invalidate the statute under discussion. Certainly legis- lature has the prohibit with keeping intent to sell. Black on Intox. Liq., 387. It is clear equally that without rule any statutory evidence, the keeping an essential fact to be proved relevant. The necessarily circumstances, etc., in and under quantity, place, which it is are to kept be considered passing intent. Black on Intox. This, Liq., for the manifest reason that have a relation to they the offense charged, to-wit, intent to sell. Therefore when keeping the legisla- ture an additional gives intensity to the proof the fact is, which without statute, relevant as tending prove the fact in we issue, are unable to see how it can be said that it exceeds its constitutional limitation respect.
defendant, however, contends that to- named, quantity wit, “more than has no relation quart,” does not tend the offense. The it ppwer conceded, is diffi- being cult to how conceive the court could undertake to fix the limit respect quantity the basis of prescribed, the pre- will be observed that sumption. not the of a keeping fixed quart, quantity beyond quart, is made *9 a but “more than a prima case, Of quart.” course, the facie would case be or weaker prima stronger to the according facie in a excess of kept quart. We would quantity find exceed- difficult to limit any ingly prescribe power legis- in this We lature must ever in respect. mind the fun- keep damental that courts must principle- not call into question of statutes because validity they the not think them wise To do so would be or wholesome. to introduce untold con- into our fusion uncertainty jurisprudence. It has been n so said that forcibly within frequently the sphere of its the that it legislature supreme, does not need power
640 THE IN SUPREME COURT. Bakkbtt. of or extended to sustain it. As citation authority reasoning this truth we “Whether the acted quote: enforcing legislature not is a which we or have question wisely nothing do. its abuse affect admitted, it; cannot power being It is that must be for the consideration. sufficient legislative claim to sit in the consti that the judgment upon judiciary in case. to act tutional of power legislature given rank for into the would be us wisdom usurpation inquire Nash, J., Com'rs, or of in act.” C. v. propriety Taylor 55 141. “It will not throw much on a C.,N. question light cases of abuse of the like this extreme test put power J., of in existence itself.” Shaw C. Norwood the power Com’rs, v. 13 60. no of reason “There is shadow Pick, abuse meant to be that the mere of was cor supposing J., Black, in v. C. judiciary.” May rected by Sharpless Iredell, J., Bull, or; also in v. St., 21 Pa. 147. See Calder case, act 386. In Dal., supra, provided Cunningham’s of a finding spirituous liquors per should constitute house, prima his son, except dwelling case, was for sale. In Williams’ evidence that it kept facie delivery liquor statute provided supra, than a house should constitute prima other dwelling place case, the act provided In Merchant’s supra, evidence. seen drink on where the person intoxicating had who license to sell one liquor the premises should constitute evidence drunk on xjremises, case, act In the made the possession Cannon’s supra, guilt. seller second hand bottles presumptive kegs junk case, In use. Santo’s unlawful supra, made the than the keeping liquor place its evidence of keeping dependencies dwelling sell. acts were with intent to These all See sustained. S., Smith, Am. Fur Co. v. Peters, Lincoln U. supra; also case, the decision Beswick’s Notwithstanding supra, Court of Rhode Island at the same find the we Supreme *10 0.] Baerett. State v.
term, Mellor, a statute I., 666, R. that bolding or of that evidence the sale providing keeping intoxicating for shall or is sale be evidence that the sale keeping was “This or valid —the court inference illegal, saying: pre without the aid of the would not avail sumption, statute, able as but we think it was in the evidence, that legal of the General to it be so, make and when it once Assembly comes it for evidence, court, is not the jury, say whether or for sufficient fact, proof of which it is adduced.” know of no rule We based upon or sufficiently observation which would general experience enable this court to that the say, law, matter keeping more than quart one’s has relation liquor no intent to will be sell. It observed this is a that local to the of Union. what applying only Upon basis the in standard, we are not legislature adopted formed. There is no evidence before us how much liquor or domestic use usually kept private citizens The evidence in this case is the extent of infor county. our mation. there is here to Certainly us to the nothing bring conclusion that standard fixed sois unreasonable and arbi as to have no relation trary to the offense An exam charged.
ination of a number of cases from large those States have enacted repressive legislation regard
traffic it has shows that been found necessary incorporate this similar statutes, their provisions the courts have, States with the exception one case such. Island, Rhode sustained them. uniformly That court has sustained statutes similar to the before one us. If we should than a say “more keeping quart” no relation offense, ? what standard wé shall set what more Upon rational basis could we fix the limit —at a or gallon is not our province duty quantity? supervise mind in this To the legislative regard. suggestion be abused in law its execution and the personal prop- 138 —41 *11 THE COURT. IN SUPREME v. Barrett.
State invaded, it is sufficient to say of the citizen erty rights devised has never system legisla human wisdom yet any which the same not objection may tion jurisprudence be difficult to find It would any principle-of be urged. which not contain, law or law does statutory common from which an administra within itself, oppressive germ can be said and done, After all that tion may develop. is observance of the citizen dependent upon the safety and of his constitutional as interpreted enforcement rights, As was said and officers of his own selection. enforced by the de statesman, whose life was devoted to jurist great “there more easy fense constitutional liberty, nothing which the than to a thousand imagine tyrannical things legis duties, all disre lature do if its members their forget may owe to their constituents gard utterly obligations they upon right justice.” determine recklessly trample we are to Black, J., While v. Mayor, Sharpless supra. mind and firm hand upon every watchful clear eye, 'keep of the of the constitutional guarantees invasion threatened the several we are to accord to citizen, departments them, administer the same and those who may government, ourselves exercise. in that we respect jealous regard in its desire to that the General Assembly, As indicating Union, traffic the County response suppress of the citizens of that to the wishes we must (as assume) it has carefully guarded sanctity we note county, a war- for person, by requiring applying: dwelling to file an affidavit setting search suspected premises, rant to that the owner believe the affiant has reason forth that as prohibited by sale liquors keeping such premises affidavit, be set forth in the shall which reasons act, this * * * shall deem such reasons of the peace if the justice * * * It will thus his warrant. sufficient, he shall issue in his no citizen be disturbed premises, seen that be shall determine statute, until a officer judicial under 0.] Barrett. sworn 'upon evidence that sufficient reason exists tberefor.
While the to criticism in may. open its respect provisions, such criticism rigid must be addressed the legis- *12 lative of the department which and government represents to “the gives expression State’s will,” collected rather than to us who are confined to the question its meas- validity ured the Constitution of the State.
The defendant next that the statute violates the suggests in Constitution that a rule of evidence prescribes appli cable to the citizens of only Union and not other to County, ' in counties the State. The force of this contention depends the upon the to power declare that the legislature keep ing spirituous intent to sell in Union liquors is a or in misdemeanor, words, to local statutes of pass This application upon subject. has been so power long the court and exercised that recognized legislature we do not deem it to re-examine foundations necessary Muse, which it rests. In 20 State v. 463, C., Ruffin, J.,C. “There can be no doubt says: that hath legislature and that there in power, sound morals and obligation true on that to of Divine policy body, protect decency worship actual of those en by prohibiting any interruption or near the worship at gaged any practices place, which the in see such legislature may tendency produce The act referred to sale terruptions.” prohibited spir ituous near a church. This court, State v. Joyner, 537, 81 C.,N. “Nor is says: competency legisla ture to local acts such as the now ques pass present open The has been and so tion. so often exercised long power in cases before this other courts that coming recognized Stovall, must considered as settled.” v. its existence State 40. on sec. The C., 416; 103 N. Black Liquor, Intoxicating conceded, the law of local we application pass being unable to not are reason any why perceive legislature fixed, within the limitations evidence, rules ap- prescribe COURT. SUPREME IN THE Babrett. State v. nor we cited to any* its are violations; charges plicable contrary. authorities the statute violates Article
The defendant suggests Constitution, Federal XIV., prohibits section law which denies from or enforcing any mating law. equal protection within its person jurisdiction so has been thor- from standpoint viewed question Court Supreme discussed settled by ably oughly S., 623, 123 U. Kansas, States v. of the United Mugler to do than refer do deem it more necessary that we case. act however, that to sustain this insisted, seriously Divine, C., 98 N. We
would be to overrule State of the Chief Justice examined the opinion have carefully *13 decided which con- in the question that case and find nothing de- have arrived. .The conclusion at which we flicts with the very a statute peculiar fendant was indicted under containing it to be consid- of which one provisions, only necessary live stock should that when here, ered is that declaring a car on rail- or or injured running be killed by any engine * * * such counties, injury in certain enumerated road misdemeanor; a that the president,' superintendent, should be therefor. It was fur- or conductor be indicted engineer was killed or injured ther that when stock provided evidence of it would counties, negligence. such prima facie was indicted the road) The defendant (superintendent was found that the defendant under the statute. jury and when the stock was injured, the train upon engine therewith. The eminent counsel in no connected way reasons, other manifest insisted, defendant among invalid for that rendered the act criminal was statute not so in and raised out of another, one which was locality a done one employee against an act guilt did not in who in it. any way participate another employee The distinction sustained the between objection. This court 0.] Baeeett. then under us consideration the one before is manifest. The act which was made the evi- prima, facie dence of in our case can be committed guilt only by accused. The made evidence person “keeping” prima facie must be the act of the defendant. personal
We have discussed the defendant’s questions given able zealous counsel more usual consideration. than His Honor of the defendant to be carefully guarded right tried a of his and convicted when jury county only they were satisfied reasonable doubt the whole beyond upon the evidence that he for sale, kept liquor expressly stating to the that if had them the State not thus satisfied jury upon all the should return a of not testimony, they guilty. verdict It would seem that no other con- light testimony clusion could have been reached.
No Error. him J., result: so concurring Having Walker, of different size large quantity packages covered over with a was sufficient of itself to consti robe, lap tute evidence of the defendant’s guilty possession.
When of a certain fact is made proof
the main fact to be law does not mean that established, the there is created, but any presumption guilt thereby there is sufficient evidence to go *14 convict there is no
they may testimony. countervailing It is still does not shift the burden of but the State proof, its case a reasonable doubt. Wig. required beyond Co., Ev., C., sec. 2494 135 N. Womble v. Grocery (2); law, The view of the case was submitted to the jury and I am unable to see how substantial error was com any mitted the court when the were to consider jury permitted all of the was made evidence. The mere fact that reference to the statute did when his defendant, prejudice pos session, under the circumstances shown the evi- clearly SUPREME THE COURT. IN Bakbett. the case and was sufficient to to the
dence not disputed, carry benefit of the doctrine of reasonable He had the full jury. which was submitted to the evidence, doubt the whole upon was and tried. and the case fairly correctly jury, Brown, I from so much of the dissent J., dissenting: of to sustain the constitu- the court undertakes opinion of 1903, of Public Laws re- 3„ 434, section tionality chapter “That if to the citizens of Union to-wit: lating County, said laws, other than licensed retail dealers under person, of shall in his to the more keep liquors quantity possession be evi- than within said it shall quart county, dence of his it for sale within the of this keeping meaning act.” act make an indictable
The of this offense to provisions sell it, in one’s with intent to at keep liquor possession the same time the sale with- liquors prohibits intoxicating of the Irrespective Union. provisions I am of act, that there was sufficient opinion testimony did have in to the that the defendant his submitted jury in as with intent sell it. But much as possession liquor His Honor in and effect force jury gave charging I think statute, case a new prima contemplated by because trial should he if is us to impossible granted, determine what view evidence the rendered their verdict. I am of no has opinion Legislature to declare that the mere of more than a power possession shall be evidence that the possess- quart or intends to himself to the it, sell thereby subject pen- alties criminal The pains prosecution. Legislature so, has not seen even if it had the to do fit, prohib- it the use and within Union possession intoxicating County. only prohibited possession keeping with intent to sell. intoxicating liquors are use lawful acts which citizen intoxicating liquors *15 C.] BarRett. The Legislature with of do impunity. that county may or modi- changing fixing, extensive respect very powers but courts, to be by the rules of evidence applied fying criminal proceedings in relation to of this the exercise limitations prescribed is subject very important all courts, and which law of the country legislatures, organic limitations must respect. Among others authority of citizen Union cannot deprive Legislature which laws the land of the of that equal protection Constitution of the 14th Amendment guaranteed citizen pro- such nor can States; deprive the United him to declares which fundamental tection of that principle the full satisfaction innocent until he is proven guilty innocence This of his peers. at every to it and he is entitled around the accused thrown In him. instituted against proceedings stage legal have been many laws there under the liquor prosecutions facili- States tending in the different provisions legislative admitting presumptive tate the conviction of offenders acts have these facts, of certain generally indirect proof ob- no valid constitutional as meet with been so framed which has been principle but there is one underlying jection, the one all acts except such observed preparation limitation “In cases criminal now under consideration. acts declared prima
has been imposed act the criminal relation to have some of the crime must 1, vol. Evidence, on Jones the crime.” tend cited. 194, sec. and cases liberty guard of the most sacred rights
One is the of this Union pre- and all other States citizen in this him. around law throws which the of innocence sumption individ- acts of the make certain While Legislature evi- him facts connected ual certain act is conceded that it is dence yet everywhere guilt, ten- have some law unless the facts obnoxious organic *16 648 THE SUPREME IN COURT.
State ®. Barrett. In other dency words, the cannot prove guilt. Legislature its will to a lawful and innocent by arbitrary give perfectly act unlawful and criminal or draw from war effect, acts ranted and law, an un by do, everyone may rightfully lawful, criminal intent. this act the improper By Legis lature withdrawn has from the citizens of Union of the law which is to the other citi equal protection given In no zens State. other North Carolina county the citizen so situated that he lawful may perform perfectly act and and at the same time, enjoy legal right by of an mere force have inferred from it a statute, arbitrary and criminal intent. The as to what is wrongful question a denial of the of the law is one which has equal protection been before the Court of in a the United States Supreme cases. The decisions courts of the great many highest will States show that it is one not determined. No easily rule can be formulated that will cover case, but it has' every been said that no or class of shall generally person persons be denied the same which is laws protection enjoyed or other classes in the same prisons jurisdiction Lewis, in like 101 S., circumstances. Missouri v. U. 31. Justice Field Barbier v. S., 27, U. says, Connolly, that “the 14th Amendment means equal protection shall be to all under like circumstances security given persons of their and civil “Due enjoyment personal rights.” of law and the of the laws are process equal protection if secured, the laws on all alike and do not subject operate individuals to an exercise of the arbitrary powers govern Missouri, 152 rests S., ment.” Duncan v. U. 377. No duty courts than the enforcement of more imperatively intended to secure with fundamental provisions equal these of all free which are the foundation govern ity rights It doubtless peace, happiness greatly ment. conduces the illicit sale of of a community prohibit morality if so it not equal, but doing liquors, intoxicating N. 0.] Barisett.
State of the citizen that the fundamental rights importance greater, destroyed. law should be ruthlessly our under organic legislation undoubtedly proper “The State and the morals, the health pub- protect public public its regulations lic but their necessary operation safety, to a denial to ends amount persons either these looking *17 laws, of of the within its the jurisdiction equal protection Connolly unconstitutional and void.” must be deemed they Co., 558. v. Sewer 184 U. S., Pipe to make the
I do not the right Legislature question in- intent to sell of possession intoxicating liquors I its to pro- offense more than any question right dictable or any sale of it within the entire State entirely hibit the in its but I do it, pros- township deny right county from citi- under such laws to ecution of crime take away him thrown around zen fundamental which are rights a criminal him from of protect penalties pains prosecution. think, I cases, will be seen an examination of I no the position
that there is absolutely authority against can be found taken, have innumerable cases although has made the possession intoxicating which of Legislature circumstances certain cases and certain under. I do think evidence of an intent to sell. But prima facie find the mere fact of the brethren can statute where any my under any of three of liquors' possession pints intoxicating has been made evi and all circumstances ever a or where such statute sell, of criminal intent any dence in this I refer heen court upheld country. ever 195; a 25 Conn., to number of cases: State v. Cunningham, Wallace, 40 Conn., Commonwealth v. 44; v. State Morgan, sec. Black on 222; Liquors, 7 Gray (Mass.), Intoxicating 60. In of these cases the statutes under consideration most wherein is found. Some liquor relate to certain houses that where is delivered certain them liquor quanti- provide IN THE SUPREME COURT. Babkett. such, ties "shall be delivery sufficient evidence sale. State Other, Me., Hurley, statutes provide where are persons seen on drinking certain intoxicating liquors premises it shall be prima evidence that was sold by of such occupant with intent to drunk premises thereon. Statutes have been upheld provided proof finding liquor possession the accused under cer- tain circumstances specified act shall be received and acted the court upon evidence that such presumptive was or held liquor for sale to law. kept contrary Again, notorious character of certain premises, when proven, has been held to be of certain facts. The statutes are too numerous to set out or comment at it to length. Suffice that all of them say contain cir- specific cumstances or relate to certain and none premises, of them that the mere provide fact of the quantity without quart, exceeding whatever, exception *18 shall be evidence of crime. Merchant,
In
Y.,
Commissioners v.
103
148,
Judge
would
Earle
“It
not be
to
a law
says:
which
possible
uphold
made an act
evidence of crime which had no
prima
re
facie
lation to a criminal act and no
whatever
itself
tendency
*
**
criminal act.”
But such is not the effect
circumstance or
evidence, however
declaring
evidence of a fact
prima
to be established
slight,
leaving
facie
the adverse
at
rebut
it. Here the act which iá
party
liberty
made
evidence of
sale takes
prima
illegal
place
the
upon
some
premises
relation
person chargedit
to and
of an
sale,
furnishes some evidence
and occurs
illegal
in a
where
are authorized to be
and sold.”
place
kept
Peckham, now of the
Judge
Supreme Court
United
Cannon,
States, v.
where of the main fact question. existence evidence fact which upon presumption The limitations are that the fair relation to or natural con rest must some is to have of the existence with the main fact. The inference nection fact the existence of the fact, actually of the main because of In must not arbitrary.” be proved, merely purely Shank, au is said: “The defendant 652, being v. 74 Iowa, no for lawful thorized to keep liquors purposes, are him for unlawful kept purposes.
arises against they will absence of contrary, The law proof presume, for men them for lawful that the defendant kept purposes, their acts to the law where are act in obedience presumed of In Court shown to unlawful.” are not Supreme a statute void “We declare diana should says: unhesitatingly that a should be convicted which to enact person attempted facts be consistent of an offense might proof it has often been held that innocence, Legisla with yet also enact that facts ture a crime may proof defining shall be which are guilt universally recognized indicating of-the of the of commission sufficient prima facie State, Ind., defined v. fense statute.” Voght 180, Hun. In case Lyon, (N. Y.), Judge People “In case defendant Larned tire says: charged present intent it should be drunk sold with having tried on the It is have premises. question right from are determine -their That means that the jury. in evidence the facts
own judgment upon legally given *19 is If the whether or the defendant Legislature guilty. that a fact is evidence the
can declare certain prima facie the a declaration means that jury defendant’s such guilt, defendant evi away must convict unless the ^explains illustrations, In a number of the dence.” pertinent giving “If the can enact Legislature legally learned Judge says: enact that if a dead were clause, body they such might IN THE SUPREME COURT.
State v. Barrett. found, in bouse that should be evidence prima that the had house murdered occupant deceased, the because the enactment is legislative and need have no purely arbitrary regard connection want of connection between the evidence and the conclusion is which to be prove'd.” Beswick,
In State I., 218, R. the Court “It says: will be observed the that statute makes of the facts proof mentioned it not evidence only accused, the but against evidence of his so that guilt, upon proof it is the duty the to convict unless the jury * * * is rebutted other evidence. haveWe carefully considered the and have question come to the conclusion that is not constitutional. the ac virtually strips cused of the common protection law maxim that every person is be until presumed innocent he is proved guilty, which is recognized Constitution as a fundamental * * * principle jurisprudence. accused Certainly does not have the of a if the judgment jury compelled an artificial rule to convict him a fact which upon proof ** * is consistent with his innocence. the Gen Suppose eral were to enact Assembly was any person generally of murder reputed it should be evi guilty prima facie dence of his guilt. Could be said that his life or liberty had taken him been from of his peers? judgment * * * Indeed, to hold that a can create arti Legislature ficial from presumptions facts which are guilt consistent with innocence to hold that it has to take away from judicial trial element makes it very * * * It is true judicial. the accused has the of de right fense and if he can adduce evidence he satisfactory rebut but of such statutory evi presumption, production dence is not even easy in his always testify right own behalf.” In v. Beach, 43 N. E. 951, Rep. (Ind.), it is “A law which said: makes an act *20 N. 653 O.]
State Barrett. of crime, has no whatever to establish a crim- tendency inal act, is unconstitutional and void.”
The of which the the citizens right Legislature deprives of TJnion the most sacred and valuable probably of all the to the of citizens rights guaranteed country in our National and State Constitutions. The words “due process law,” laws,” as used “equal protection in the 14th mean Amendment, one and same practically borrowed, law words “the were thing. land,” from Oharta and have a Magna recognized significance. Judge in his work on Constitutional Cooley, Limitations, see. 355, Edwards, cites with a definition approval Wes by Judge 12 tervelt v. N. 202: Y., “Due law undoubt Gregg, process means the due course of edly legal proceedings, according to those rules and forms which have been established for the protection The effect criminal private rights.” prose cutions to secure to the accused a trial judicial according of the common and not in general law, vio principles lation of those fundamental rules which have been estab lished the common law for the the citizen. protection these rules there is none which is more Among fundamental than the rule that shall innocent every person presumed Selden, until he is rule,” “This said proven guilty. Judge Toinbee, 2 Parker, v. R., 490, “will be found People Cr. into of our State incorporated many constitutions, is one which in those rules our constitutions are into compressed ” the brief but ‘due of law.’ In significant phrase process Divine, C., 783, case Justice Smith Chief from quotes approval Constitutional Judge Cooley’s 309: Limitations, “The mode of page facts, investigating however, all, is the same and this is a trial through surrounded certain which are a well jury safeguards understood which the part system can government with.” as we dispense understand,” “Meaning, says Smith, “that the must before the Judge charge go IN THE SUPREME COURT. *21 Barrett.
State v. the the accused to them, of with the guilt proved presump tion until of innocence this is done.” In v. Mis Cummings souri, 328, Mr. Field clauses Wall., Justice “The says: subvert the of and alter question innocence the rule of which evidence heretofore under the universally recog nized of the law common have been principles supposed be fundamental and In v. Peo Wynehamer unchangeable.” Y., 446, 13 N. the court that “the can ple, says Legislature not that fundamental of which bolds justice subvert rule that shall be innocent be is everyone until presumed proved Railroad, In 8 A. San Mateo & E. R. R. Cases, guilty.” 10, Court the the of United States “Whatever Supreme says: its do, the it cannot one within juris State may deprive any of the.laws, diction of the protection by equal pro equal one tection is meant under them on equal every security similar in bis bis and in the of life, pursuit terms liberty happiness.” under consideration to the test as
Subjecting mind laid the conclusion to is authorities, down these my is law that it to our both irresistible obnoxious organic which constitutes is the fact to be Federal State. What proven ? offence It is certainly th e gravamen one of That is mere than quart liquor. more possession but lawful act Union County, every not.only perfectly It is intent to sell in North Carolina. county the crime. Does the three which constitutes' possession and all circumstances tend under pints liquor If the act does, to sell it? it is intends the possessor not, If it does it violative organic constitutional. I are worth the authorities have land, quoted law the mere of three pints is there What anything. least would indicate tend degree of liquor intended to sell it it for sale ever kept that the owner five individuals in this who country ? are thousand it There one who pur- for their consumption own purchase O.] Barrett. it fox sale. To effect chases act the contended give must construed with reference to the one purpose without whatever to of the five regard having any purpose thousand. The act must not be tested in this evidence case. I am act, Independent willing a.dmit was sufficient to conviction. But amply support the act and it has been question purely arbitrary given not, that effect. to, does the cases I have referred give *22 circumstances under which the any specified
shall arise. It of three of wine applies possesion pints as much as to with force the of three barrels of possession A who on her dinner for the whiskey. table lady places of her of much entertainment three claret is as a guests pints criminal the who hauls around peddler his covered a barrel of “untaxed corn” with his wagon pint tied to the The latter and pot spigot. might justly legally constitute a case of to would “intent sellbut it to such an be infer intent from the former. The impossible of of three out of possession cases pints liquor ninety-nine is a hundred far indicative of intent to drink of more than an intent to sell. Yet statute makes-no distinction. all
“feeds out of same and invests all spoon,” persons with of the law of equal criminality eyes regardless circumstances or reason The individ- surroundings, logic.
ual in Union who his three dares to have residence County wine, of as a tonic for his pints prescribed ailing seuppernong is in wife, him, of his taken from liberty danger having to break rock a sent roads virtue of few county words in do little this statute. It will not to that no say a convict man under such would circumstances. He is placed on the defensive. The shield and of is innocence panoply him, from and he is at of men. twelve stripped mercy worse Eanaticism done than a man things convicting under such circumstances however we think it unjustifiable be. This the citizen not protection máy given pre- THE SUPREME COURT. IN Barrett. conviction, crime,
vent bnt it his alone when charged him to him from unjust, mortifying given protect improper, val- and it is the most criminal prosecutions, expensive citi- individual has. The uable priceless possession Union, zens as much entitled to it as other are of North Carolina or United States. citizens how not explain posses- The court does undertake a can sion of more than of liquor possibly significant quart am at to know. The mere of a and I a loss sell, purpose no is more indicative three pints liquor possession intent in relation to it than is the owner’s purpose flour, meal or else. Men of three anything possession pints inas- and so but true, sell it is do things, liquor, they of such articles and much as the vast are buyers majority I fail of so small a quan- to see how mere sellers, possession a intent sell as as it does indicates an tity strongly purpose to consume. can show that the such
Unless court sell, indicates must hold quantity purpose *23 enactment make a can arbitrary per- the Legislature intent, of a criminal and lawful act evidence innocent fectly And such such has no tendency prove act guilt. although effect of decision in this case. the the really I from the in a few of the pre- have cited opinions leading ci- court, in and the cedents referred to the judgment All statutes referred sustain contention. fully my tations cited court or in the cases therein opinion which tend to evi- acts, make certain prove guilt, prima facie dence it. of them undertake to make a lawful None purely can reas- from which no unlawful be act, purpose intent cases, all evidence of crime. But without inferred, onably n be discover, as I can declare that cannot so far exception all will not me to comment on permit done. Space lawfully I will our own statutes, but cite statute against carrying these as an illustration. statute makes the concealed weapons TEEM, SPEING 0.] Barrett: named in it bowie possession, knives, weapons (pistols, off one’s evidence of concealment. etc.), premises prima facie That act constitutional. ? Because the plainly Why named in act be are carried weapons may commonly and concealed from view. When the pocket weapon is seen in the hand of owner off his it is fact premises, that he took it from his tending prove pocket thereby had it concealed on his If I had I could person.- space point out the true act of the men significance every Legislature tioned court, that the facts declared easily show be evidence of crime have some tendency it, while the fact stated the act under consideration has no such tendency.
The General as much Assembly my opinion just to declare that in all indictments in Union right with intent to having liquor possession sell, defendant shall be to be and shall be presumed to es- guilty required tablish his had innocence, to enact the ques- tion, mere wherein, words, a lawful arbitrary perfectly and innocent act is declared to be evidence of a prima facie intent. There are some guilty the General things Assembly cannot do. declare that hereafter “black shall white,” but it cannot make it so. Nor can it lawfully, by exercise of its turn will, innocence into arbitrary prima facie It has as much to declare that guilt. just right
of a shall be evidence of an intent to kill. gun Kansas,
The court declares that Mugler S., 623, U. is a that the act under consideration does plain authority violate the 14th Amendment to the Federal Constitution.
With the utmost for the respect I opinion brethren, my am constrained the case has no say whatever bearing *24 on the at issue In question appeal. v. Kan- Mugler 1.' it is decided: That the sas State of had Kansas the right the manufacture and sale of prohibit intoxicating liquors State. That within the could not recover Mugler 138-4,2 THE COURT. IN' SUPREME Babbett. under the
value of bis 3. That prosecutions brewery. for the State necessary affirmatively Kansas act it is a to sell intoxi did not bave permit that the defendant prove decided in that I do not controvert anything cating liquors. has been the law North case. The third always proposition with in indictments for liquors Carolina selling intoxicating is a matter of defense. of the license out license. possession case to e utter’ lack pertinency Mugler Th “It from at bar can be seen the following quotation: the one has declaration that when the State proven is a only manufacture of for the intoxicating place kept or sale unlawful except specified manufacture (such being need under a and then permit) prosecution purposes only the defendant has not viz., not prove negative, he_can If defendant has such license. permit required the. case es overthrow the thus prima easily produce different is the act we are How very tablished the State.” can it, Under the State considering. room, in a who of wine citizen’s private dining three pints
.of business connected intoxicating is not engaged case thus its rest prosecution liquors, a lawful and innocent statute, whereby made out under (cid:127) intent. into evidence of criminal converted act arbitrarily to believe should from fanaticism refuse If the prejudice ? Because be is helpless. AVby he defendant’s explanation, t has robbed him of the greatest protection t he statute viz., unwarranted prosecution, pre citizen against him innocence thrown around the funda sumption' would bave done well to some quote law. The court mental Harlan utterances Judge Mugler of the forcible all “It does not at follow that case. He says: every is to ac for the these ends ostensibly promotion enacted exertion of the as a police powers cepted legitimate limits are, There necessity, beyond legisla State. cannot go;” again, “Undoubtedly, tion rightfully *25 SPRING TERM, 0.] Barrett. State, when for tbe of tbe by legislation protection providing bealtb, tbe morals or tbe is sub- public public safety, public to tbe of tbe of ject Constitution tbe paramount authority United States and violate secured rights guaran- teed that instrument.”
In I conclusion will that I all say sympathize deeply efforts to illicit traffic in legislative extirpate intoxicating and will be found all such laws liquors, when sustaining within tbe I cannot legislative But power. conscientiously assist in tbe axe to tbe most valuable and laying judicial sacred of all tbe fundamental of civil liberty, viz., tbe rights tbe court innocent unless legal right tbe adjudged State has offered tbe commission tending evidence aof Tbe crime. citizens Union are as much en- titled to this law, tbe protection tbe organic prosecution and all as are tbe offenses, other citizens tbe State, and, when it denied to them as statute, it is are they denied land,” tbe tbe “law tbe equal protection are at tbe and uncertain capricious mercy jurors.
For tbe reasons I have I think attempted there give, should be a new and tbe trial, court below directed to submit case to tbe tbe jury upon without reference to under case tbe statute. any prima facie