164 N.C. 431 | N.C. | 1913
Lead Opinion
after stating tbe case: Tbe defendant was charged with a violation of tbe act of 1913, it being chapter 44, entitled “An act to secure tbe enforcement of tbe laws against tbe sale and manufacture of intoxicating liquors,” ratified 3 March, 1913. Tbe act makes it unlawful for any person, firm, association, or corporation, other than druggists or medical depositories, duly licensed, “to have or keep in bis, their, or its possession, for tbe purpose of sale, any spirituous, vinous, or malt liquors,” and makes proof of any one of certain facts prima facie evidence of tbe violation of the act; and, among others, it is provided that “tbe possession of more than one gallon of spirituous liquors at any one time, whether in one or more places,” shall constitute such prima facie evidence of tbe fact that it is kept for sale in violation of tbe act.
Having clearly before us tbe nature of tbe particular charge against tbe defendant, tbe law alleged to have been violated and tbe proof offered in support of tbe charge, we are prepared now to consider tbe objection urged by tbe defendant’s counsel to tbe charge of tbe court.
Tbe jury were instructed that tbe fact of bis having in bis possession more than one gallon of tbe liquor made out a prima facie case against tbe defendant. If tbe court bad stopped here, and not qualified this instruction, it would have been correct; but it did not do so, but went beyond tbe terms of tbe statute and the law when it further charged that it then was tbe duty of tbe defendant “to go forward and satisfy tbe jury, by tbe greater weight of tbe evidence, that be did not have the liquor in bis possession for tbe purpose of sale.” In this further instruction we think there was error. Tbe defendant, as we have shown, is charged, under tbe act of 1913, with unlawfully having spirituous liquor in bis possession for tbe purpose of selling it, and nothing else, and proof of the possession of more than one gallon of such liquor is made prima facie evidence of
The jury are no more required to convict upon a prima facie case than they are to acquit because of the presumption of innocence. They must judge themselves as to the force of the testimony and its sufficiency to produce in their minds a conviction of guilt. In civil cases the rule is the same (with a difference in the quantum), 'as prima facie evidence only carries the case to the jury, and does not entitle the party in whose favor it has been offered to a verdict as matter of right.
Referring to this rulé, as applied to civil cases, and the presumption, or prima facie case, arising under the maxim, res ipsa loquitur, which presents one of the strongest of such cas.es, the Supreme Court of the United States has recently said: “In our -opinion, res ipsa loqmtwr means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking; but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily
Justice Hoke says, for tbe Court, in Furniture Co. v. Express Co., 144 N. C., at p. 644: “It may be well to note bere tbat, in using tbe terms prima facie and presumptive, tbe terms do not import tbat tbe burden of tbe issue is changed, but tbat on tbe facts indicated tbe plaintiff is entitled to have bis cause submitted to tbe jury under a proper charge as to its existence or nonexistence and tbe effect of any presumption which may attach, as indicated in tbe eases,” citing several of tbe cases to which we have already referred.
It may, therefore, be taken as settled in tbis Court, at least, and we believe tbe same may be said of most, if not all, of tbe courts, tbat prima facie or presumptive evidence does not, of itself, establish tbe fact or facts upon which tbe verdict or judgment must rest, nor does it shift tbe burden of tbe issue, which always remains witb him who bolds, tbe affirmative. It is no more than sufficient evidence to establish tbe vital facts without other proof, if it satisfies tbe jury. Tbe other party may'be required to offer some evidence in order to prevent an adverse verdict, or to take tbe chances of -losing tbe issue if be does not, but it does not conclude him or forestall tbe verdict. He may offer evidence, if be chooses, or be may rely alone upon tbe facts raising tbe prima facie case against him, and be has tbe
The defendant is not required to take the laboring oar and to overcome the case of the plaintiff by a preponderance of evidence, is what we said in Winslow v. Hardwood Co., supra, and substantially the same thing was said in the other cases we have cited. This is undoubtedly the rule in civil cases, and it applies with greater force to criminal cases, where the defendant has the benefit of the doctrines of reasonable doubt and the pre-nsumption of innocence. How can we say that prima facie evi-1/denee, or that which is apparently sufficient, excludes all reason-11 able doubt of guilt, and by its own force overcomes the pre-I sumption of innocence? The bare statement of the proposition is sufficient to show its fallacy. It would destroy the presumption of innocence and take away the protection of the other rule as to reasonable doubt. The presumption of innocence attends the accused throughout the trial and has relation to every essential fact that must be established in order to prove his guilt beyond a reasonable doubt. Kirby v. U. S., 174 U. S., 47. He is not required to show his innocence; the State must prove his guilt. No valid conviction can be had in law which is based solely upon prima facie evidence as conclusive and foreclosing the verdict, or which even casts upon the defendant the burden of showing his innocence by the greater weight of the evidence. We know of no such rule, and it finds no warrant in the language of the statute. The decisions are all the other way, when rightly interpreted. In a case very similar to this one, the Court held that the jury must consider all the circumstances, whether introduced by the State or the accused, in connection with the evidence proving the possession of the liquor, taking into account as well the presumption of the defendant’s innocence. S. v. Cunningham, 25 Conn., 195.
But directly to the point, and one which exactly fits this case, is the case of People v. Cannon, 139 N. Y., 32, where the Court thus sets forth with great force and clearness the limitations upon the power of the Legislature to create such presumptions,
In Board of Excise v. Merchant, 103 N. Y., 143, the Court in dealing with this very question says that by the presumption or pririia facie case arising by statute from possession of the liquor, “the burden of proof is not even really changed,” and then adds that the case must'be submitted to the jury, notwithstanding the presumption, upon the evidence, whatever it is,
It is also stated as law in Black on Intoxicating Liquors that “the Legislature has undoubtedly a very extensive power in respect to fixing or modifying the rules of evidence to be applied by the courts. The exercise of this power, however, in relation to criminal proceedings, is subject to certain important limitations, among which are the following: (1) The Legislature, in enacting rules of evidence, must not usurp judicial functions; (2) such rules must not be of the nature of ex post facto laws, or illegally retroactive in their operation; (3) they must not deprive the accused of his constitutional right to be confronted with the witnesses against him; (4) the Legislature cannot compel a defendant to furnish evidence against himself; (5) nor deprive him of his right to a trial by jury; (6) it would be unlawful to make any given fact or state of facts conclusive evidence of guilt, in negation of the common-law presumption of innocence. The rules of evidence in prosecutions under the liquor laws have frequently been the subject of legislative attention, and the changes made have sometimes shown a wide departure from common-law principles. All such statutes — which for the most part are designed to facilitate convictions by admitting presumptive or indirect proof of certain facts — must be brought to the test of constitutional principles such as those above enumerated. If found to be in violation thereof, they are not defensible on any ground of public policy or the welfare of the community. As a rule, however, these acts have been so framed as to escape constitutional objection. Thus, a provision that, in prosecutions for the common selling of intoxicating liquors, delivery in or from any building or place other than a dwelling-house shall be deemed prima facie evidence of a sale, is constitutional and valid. This neither conclusively determines the guilt or innocence of the party who is accused nor withdraws from the jury the right and duty of passing upon and determining the issue to be tried. And the same is true of a statute providing that, whenever an unlawful sale of liquor is alleged, and
This Court has fully sustained this principle and approved these authorities by citing and relying upon them in S. v. Barrett, 138 N. C., 630. It was held in Barrett’s case that notwithstanding the statute expressly, declares that the possession of more than a -gallon of spirituous liquor shall be prima facie evidence of the purpose to sell it, it is, at last and in its essence, but evidence of guilt, and not conclusive or determinative of defendant’s guilt even by itself and unexplained. It further holds that there is no shifting of the burden to the defendant,'but it rests upon the State to establish the accusation of the bill of indictment beyond a reasonable doubt.
It will be observed that, in our case, the court placed the entire burden upon the defendant to show his innocence, for the instruction to which exception was taken is that the statute requires him to satisfy the jury by the greater weight of the evidence that in fact he did not have the liquor in his possession for the purpose of sale, whereas, according to all the authorities, and especially in Barrett’s case, the burden is on 'the State throughout the trial. The defendant profited little or nothing by the subsequent charge that, .if the jury had a- reasonable doubt about the facts recited by the court, being those which the defendant must prove by the greater weight of the evidence, they should acquit. This, to say the least of it, was very confusing, if not contradictory. "What advantage did he gain by the charge as to reasonable doubt, after the jury had been told that there was a presumption against him and he must “satisfy them by the greater weight of evidence” of his innocence? It deprived him of the presumption of innocence, and practically eliminated the benefit of the doctrine as to reasonable doubt by so weakening it that it amounted to nothing; and all of this
The Attorney-General admitted that there was error in the charge, under.the decisions in S. v. Barrett, 138 N. C., 645; S. v. McIntyre, 139 N. C., 600; S. v. Dowdy, 145 N. C., 432; S. v. Dunn, 158 N. C., 654, and S. v. Mostella, 159 N. C., 461; but he argued that what defendant did and proposed to do with the liquor, in law, constituted a sale, by his own admission on the stand. "We do not assent to this position. It was lawful to buy the liquor in Virginia, and if he made the purchase there, acting solely and in good faith as agent for the other persons, who sent him there for the purpose of buying it for them, he would not be guilty of selling liquor if he had delivered it. It was so decided in S. v. Whisenant, 149 N. C., 515, as we think, where it appeared that the defendant, as agent, had ordered some whiskey for the prosecuting -witness, which was to be shipped from another State, where our laws did not operate, and when it arrived, he delivered it to the witness. It was held, if defendant acted bona fide, that he was not guilty, although he ordered the whiskey as agent and received the money for it; and it was further said to be a transaction of interstate commerce. - Under either view, defendant could buy liquor for another, as his agent, if he acted in good faith and was not concealing, under the guise of an agency, a transaction which was in fact a sale. If liquor can thus be ordered through an agent from another State, without violating the law, if done bona fide, why cannot the agent go into that State in person and buy it, where it can be lawfully sold, and then transport and deliver it himself? An agent may also receive at least a fair compensation for his services, provided the money is paid to him strictly as such, and not as any part of the price for the liquor. His
Nor is tbe defendant indictable under Revisal, sec. 3534, as be procured tbe liquor in Virginia, where it was lawful to sell it. S. v. Smith, 117 N. C., 809; S. v. Burchfield, 149 N. C., 537. Tbe case of S. v. Smith, just cited, seems to be decisive of tbe point here raised, and, we think, is fatal to tbe judge’s charge. It is there held that it is no more unlawful to buy through one’s agent than to buy- directly himself, and tbe agent, when be buys lawfully, is just as innocent as bis principal would be if be bad bought himself, tbe real question being whether there was a bona fide agency or a sale in disguise. It is a question of intent, without regard to tbe fair appearance of tbe transaction. What is it, in fact or in substance and legal effect, is tbe question; and in tbis view, which is tbe true one, we are forcibly reminded of what Justice Ruffin observed in S. v. Gilbert, 87 N. C., 527, with'regard to an indictment for carrying a concealed weapon. He said tbe offense of which tbe defendant is charged forms no exception to tbe general rule, that to constitute a crime there must be a criminal intent, and tbe Court perceived no good reason why it should be. “Tbe law is a wholesome one, and its constant enforcement according to its true spirit and intention meets tbe desires and expectations of every well disposed and peaceable citizen; but some care should be used, lest by pushing its requirements too far it may result in a reaction of sentiment against it.”
If it be said that defendant is guilty under Laws -1911, cb. 133, known as tbe “Club Act,” it is quite enough to say that be was not indicted, nor was be convicted, under that law, and be has not bad any opportunity to defend himself against any such charge. Tbe Attorney-General concedes that be is charged only
We think that there is evidence sufficient to sustain a conviction upon tbe present indictment, but tbe jury must be so guided by tbe court as to find tbe facts essential to establish bis guilt.
Tbe question here is as to tbe bonw fides of tbe defendant. Was be really acting solely in tbe capacity of agent when be purchased tbe liquor, or was that a mere pretense, under cover of which be was violating tbe law by selling liquor, or having it for sale ? Tbe case should have been submitted to tbe jury in this aspect, with tbe burden on tbe State to make out its case to their full satisfaction. If defendant was acting honestly and not deceptively,' be bad tbe right to buy liquor in Virginia, where it was lawful to sell to him, and to return to this State' with it for tbe purpose of making delivery to tbe parties for whom be .bought it, and if this was all, it would not constitute a sale of tbe liquor or tbe possession of it with tbe unlawful purpose to sell, within tbe meaning of tbe act of 1913. S. v. Allen, 161 N. C., 226. Tbe possession of tbe liquor, though, would carry tbe case to tbe jury.
There was error in tbe charge of tbe court in tbe respect pointed out, for wbicb another trial is ordered.
New trial.
Concurrence Opinion
concurring: I believe in the enforcement of tbe prohibition law, as I do in the• enforcement of all law; but I cannot agree to convict of one offense when tbe defendant is charged with another, because intoxicating liquors are tbe subject of investigation.
Tbe Search and Seizure Law (cb. 44, Laws 1913, sec. 2) says: “It shall be unlawful for any person to have or keep in bis possession, for tbe purpose of sale, any spirituous, vinous, or malt liquors.”
Tbe charge in tbe warrant is that tbe defendant “did unlawfully and willfully have in bis possession 11% gallons of whiskey for sale.”
Tbe warrant follows tbe language of tbe statute, and there can be no doubt that tbe defendant was charged with a violation of tbe act of 1913. But if there is any doubt about tbe charge against tbe defendant, there is none as to bow be was tried, because tbe presiding judge, in bis charge to tbe jury, said: “Gentlemen of tbe jury: Tbe defendant, Zip "Wilkerson, is indicted here, charged with tbe violation of a'n act passed by tbe General Assembly in 1913, known as tbe Search and Seizure Law. He 'is charged in tbe bill as having in bis possession for tbe 'purpose of sale more than one gallon of liquor.”
He then charged tbe jury as to tbe effect under tbe act of 1913 of .the prima facie case made by tbe possession of more than one gallon of intoxicating liquors; and of tbis charge tbe Attorney-General, who prosecutes in behalf of tbe State, says in bis brief: “Under tbe decisions of this' Court, there was error in tbis instruction. S. v. Barrett, 138 N. C., 645; S. v. McIntyre, 139 N. C., 600; S. v. Dowdy, 145 N. C., 432; S. v. Dunn, 158 N. C., 654; S. v. Mostella, 159 N. C., 461.”
It is certain, therefore, if the rule upon which the opinion of the Court rests was adopted in an' ill-advised moment to accord with a highly technical conception of the doctrine laid down by a text-writer, and is a mere metaphysical proposition, it has been reiterated time and again, with the consent of all the members of the Court; and as it has been used at least twice (S. v. Barrett, S. v. Dowdy) for the conviction of those charged with violating the prohibition law, it is hardly fair or legal*to change it now to enable the State to convict under one statute, when the defendant is charged under another.
The defendant has not been charged with an offense under the Club Act of 1911, nor has he been tried under that act, and there is no contention that he was tried according to 'law, as heretofore declared by this Court, under the Search and Seizure Law of 1913.
It should be kept in mind that neither life, nor limb, nor liberty,- nor property, has any security or abiding place except by adhering to the Constitution, and that it provides that, “In all criminal proceedings every man has the right to be informed of the accusation against him”; that “No man shall be put to answer any criminal charge, except as hereinafter allowed, but by indictment,” etc.; that “No man ought to be taken, imprisoned, or disseized of his’freehold, liberties, or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land”; and that if a citizen can be tried in the Superior Court before a jury, and when he has been tried illegally, can be convicted here, without a jury, of another and different charge, the safeguards of the Constitution amount to nothing.
Dissenting Opinion
dissenting: The warrant in this case charges that the defendant “did unlawfully and willfully have in his possession 11% gallons whiskey for sale.” There is no reference to any particular statute.
We can pass by, for tbe present, tbe exception to tbe judge’s charge un tbe effect of a prima facie case. If tbe instruction was erroneous, it was harmless, for upon tbe defendant’s own showing tbe judge should have charged tbe jury to find him guilty. On tbe stand, tbe defendant testified that be bad in bis possession 11 gallons of whiskey in three kegs; that for a fee of $2.50 be went to Virginia and bought tbis whiskey in bulk; that be brought it back to North Carolina and was going to divide and deliver it to tbe ten men who bad “chipped in” $2.50 each to buy it with, when be was arrested. Tbe possession of tbe whiskey and bis purpose in having it are thus admitted.
S. v. Johnson, 139 N. C., 641, is exactly in point. There Johnson agreed to go from Charlotte to Salisbury and get half a gallon of whiskey, bring it back to Charlotte and deliver it to Brown, who before be left Charlotte paid him $1, tbe purchase price of whiskey. Brown, J., said:1 “We think tbe facts set out in tbe special verdict disclose an agreement or contract to deliver to Tom Brown half a gallon of whiskey, entered into in tbe city of Charlotte on 15 July by tbe defendant, and a receipt of tbe agreed price; also a delivery of tbe whiskey next morning, in pursuance of tbe agreement. These facts constitute a sale of liquor upon tbe part of tbe defendant within tbe prohibition territory.”
This is exactly the case here. Tbe defendant received tbe money from tbe other parties, to go to Virginia, where be got tbe whiskey in bulk and brought it back for tbe purpose of dividing it and delivering it to tbe several purchasers, according to contract. If, as tbe Court said in S. v. Johnson, supra,
The question, therefore, taking defendant’s testimony as true, is, when a number of persons have raised a fund and put it in the hands of an agent to buy whiskey, and he has such whiskey in his possession, to be afterwards divided out by him to them in proportion to the money that each had paid in, whether this is having it in possession for an illegal purpose.
The identical question was raised in S. v. Colonial Club, 154 N. C., 177, and the Court there held by a vote of three to two that this did not constitute “having liquor in possession for the purpose of sale.” The Legislature at the first ensuing session enacted (Laws 1911, ch. 133) that such a condition should constitute having liquor in possession for an illegal purpose, and a misdemeanor. That is conclusive of this case.
Chapter 133, Laws 1911, provides as follows (leaving out the verbiage which is not pertinent to this defendant) : “Any corporation, club, association, person or persons that shall directly or indirectly . . . in any manner aid in keeping ... a elubroom or other place [here a buggy] where intoxicating liquors are received, Teept, or stored, for barter, sale, exchange, distribution or division, among the members of -any such club or association or aggregation of persons by any means whatever, or that shall act as agents in ordering, procuring, buying, storing, or keeping intoxicating liquors for any such purpose, shall be guilty of a misdemeanor.” Upon the defendant’s evidence, he was an agent in procuring intoxicating liquor for sale or division among the aggregation of persons who furnished him the money for that purpose. He was therefore guilty of a misdemeanor under said chapter. He had, in the language of the warrant, “unlawfully and willfully in his possession 11 gallons of whiskey,” and was guilty of a misdemeanor under that chapter.. It was mere surplusage to charge further that he had it for sale.
It is true that the title of the act is “To prohibit the sale or handling of intoxicating liquors by clubs or associationsBut
There is no question of interstate commerce involved, as in S. v. Whisenant, 149 N. C., 515 (if indeed the latter case is law since the passage of the Webb-Kenyon Act). The whiskey was not ordered from a Yirginia house. When the whiskey was delivered to the defendant in Yirginia he received the full title to the property. Under his contract made in North Carolina and to be performed in North Carolina, he took the whiskey home with him, and it was found in his possession in this State, and he admitted that he had it for the purpose of division among the ten men who had paid him the money, which act was to be done here. It makes no difference that they paid him in advance. The sale was not completed until a division among the aggregation of persons for whom he had bought the whiskey. No one of them had any title or ownership in the whiskey till such partition should be made, and he had it in possession for the unlawful purpose of a sale by means of such division.
There could be but one inference from the evidence, and the judge might well have charged the' jury that if they believed the evidence to return a verdict of guilty. S. v. R. R., 149 N. C., 508.
In S. v. Herring, 145 N. C., 418, the Court held (Hoke, J.) that taking orders and procuring whiskey to be thereafter delivered to the parties who had furnished the agent with the money for such purchase made the defendant guilty of a sale if the whiskey was delivered. It follows that if the whiskey is intercepted before the division and delivery, such agent is guilty of ‘‘having it in possession for sale.”
In S. v. Burchfield, 149 N. C., the Court held (Walker, J.) that under Revisal, 3534, it was a-misdemeanor for any one “to procure. for or deliver spirituous liquors to another, and that such agent was punishable even though he had no interest in the sale other than as agent of the purchaser, and that his acting-solely as agent for the buyer was no defense.”
It is therefore unnecessary to review the charge of the court as to the effect of prima facie evidence. It is certain that the judge’s charge was correct under the uniform rulings of this Court until a very recent period, when the Court, in what may be well termed an ill-advised moment, changed its former clear ruling to accord with a highly technical conception of the doctrine laid down by a text-writer. It may well be doubted if any jury has ever been impaneled in North Carolina which would be affected by the difference in the formula, whether that formerly in use or that which is now considered more correct is used. In this day, when the American Bar Association and the demands of a practical age, and indeed the opinion of all the leading courts, are in favor of abolishing useless distinctions which can be of no use in the better administration of justice, it is unfortunate that stress should be laid upon this. It would be well to return to the older and more logical formula, or at least to hold that the variance is immaterial, for the difference can never be understood or appreciated by a jury, whose object should be simply to ascertain the real facts of the controversy submitted to them.
But whatever may be said in favor of the change which has been made, the failure to use it was absolutely immaterial in this case, for upon the defendant’s own testimony he is guilty of a misdemeanor embraced within the terms of the warrant, “the unlawful possession of the 11 gallons of whiskey.” The ■ defendant testified that he had it in possession, undivided, for the purpose of division and distribution. The judge charged the jury that they must find beyond a reasonable doubt the facts, which he recited and which under the statute would “constitute prima facie evidence,” and added that “if they found those facts beyond a reasonable doubt, then, the duty was on the defendant to go forward and satisfy the jury by the greater weight of the evidence that he did not have such liquor in his possession for the purpose of sale.” This was the long recognized and logical
There is nothing in the Constitution which consecrates this or any other technicality or formula. The repetition of an error which has been found injurious or unnecessary does not make it any less harmful. Hoke v. Henderson, 15 N. C., 1, had been repeated countless times and endured for seventy years. But it was founded in error, and, like all other errors, was fated to pass away. Mial v. Ellington, 134 N. C., 131. The same is true of many other decisions which have been reversed. ' Most technicalities that prove harmful are abolished by legislation, because the courts are very slow in reforms of this kind. In the present case the formula- used by the judge below is in accordance with that which was recognized throughout this State till a very short time ago, and no harm, but great good, would follow a return to our former rulings on that subject. The public policy of a State is expressed by the lawmaking power, and the sole object of the courts should be to construe and execute the law in the spirit in which it was enacted. The only way to enforce the law is to enforce it, and in its integrity.
In this State the defendant made the contract to furnish ten men with whiskey; in this State they paid him the money for it; in this State he had the whiskey ready to divide and deliver to them. Is there no law yet that makes possession of whiskey under these circumstances “unlawful and willful,” as charged in this warrant?
To small avail is the act of the General Assembly of 1908 and its approval on a referendum, and to small avail are the acts of Congress and the subsequent acts, both State and Federal, curing all defects discovered by the courts, if this transaction can escape the condemnation of the law. There was one who said he could “drive a coach and six through any act of Parliament.” It seems that legislators and Congressmen are still unable to use language effectively to express their meaning when that language is subjected to the critical eyes of courts.
