People v. Smith , 250 Mich. 75 ( 1930 )

Defendant was convicted of possessing and transporting intoxicating liquor and prosecutes review by writ of error.

At the examination, before a magistrate, defendant's motion for discharge was denied. Upon arraignment in the circuit court defendant moved to quash the information because of insufficient evidence at the examination. The evidence before the examining magistrate was sufficient to hold defendant to answer to an information, and the court was not in error in denying the motion to quash.

It is claimed that the potability of the liquor was not shown at the examination. A deputy sheriff testified that he was able to tell moonshine whisky by smell, smelled the contents of the bottle, and it was moonshine whisky. We think this sufficient.

Defendant was driving his automobile on a highway, the car turned turtle, in helping the occupants out a witness found a quart bottle with liquid in it in the car, laid the bottle at the side of the road, then picked it up, refused defendant's request for it, and, shortly thereafter, delivered the bottle to an officer. An analysis, in evidence at the trial, disclosed that the bottle contained moonshine whisky, having an alcoholic content by volume of 40.1 per cent. Three men beside defendant were helped out of the overturned car, and the court admitted testimony tending to show that defendant was intoxicated.

Counsel for defendant cite People v. Thompson, 238 Mich. 171, in support of alleged error in the ruling. The Thompson Case is no authority for holding that, in a prosecution for possessing and transporting intoxicating liquor, it is reversible error to admit testimony tending to show that at the very time defendant was so violating the liquor law he was intoxicated. The court was not in error in admitting the testimony. Defendant testified, and was permitted to call witnesses to show his reputation for sobriety and good behavior, but not his general reputation for truth and veracity. The fact that defendant's testimony was in flat contradiction of testimony of witnesses called by the prosecution did not accord him the right to support his credibility by testimony of his general reputation for truth and veracity. Exceptions to the rule excluding such testimony are sometimes recognized, but no special reason for departing from the general rule appears in this record. Defendant denied having any knowledge of the liquor being in his automobile.

Error is assigned upon the following instruction to the jury:

"The presumption of law is that he knew that this liquor was in his car and that he was transporting it at the time in question. This presumption of law to which I have referred, the presumption that by reason of its having been found in his car, a car over which he had control and was engaged in driving at that time, is that he knew it was there. The presumption is that it was in his possession. That is the legal presumption. That presumption, however, is a rebuttable presumption; it is not a conclusive one. It is a presumption of fact and not a presumption of law."

The law permits reasonable inferences from facts proved. The bottle of liquor was in defendant's car. This fact, in the absence of explanatory evidence, justified the reasonable presumption or immediate inference that defendant was fully aware of the presence of the liquor. An admissible presumption, prima facie, operates to the extent of having the other party proceed to proof on the subject. The presumption does not shift the burden of proof nor admit of weighing the presumption against credible evidence. The presumption departs when credible evidence is in the case. If the evidence creates a reasonable doubt, the presumption cannot serve in solving the doubt; for evidence, and not a presumption, must be weighed against evidence, and the prosecution has, at all times, the burden of proof. The extract from the charge, however, is but a part of the instruction applicable to the subject. We quote further from the charge:

"It doesn't devolve upon him to prove beyond a reasonable doubt or by a preponderance of the evidence that his claim that he didn't know that the liquor was there is true. On the other hand, it devolves upon the people to establish beyond a reasonable doubt that it isn't true and wasn't true at the time, and in order to determine in respect to that you have the right and it is your duty to consider the various items of evidence that bear on that proposition and ascertain what the real facts are. Did he or did he not know? * * *

"I charge you further that possession must be a knowing possession, that is, an intelligent, conscientious appreciation of the fact that one has liquor in his possession and unless you find that the respondent in this case had such knowledge you must bring in a verdict of not guilty."

The error assigned is not well taken.

Complaint is made of the following instruction to the jury:

"The people claim that he did know that it was there; they claim that it is an improbable story that someone introduced that bottle of liquor into his car that afternoon without his knowledge or consent."

In the brief for defendant it is stated:

"At no time during the trial of the case was any claim made by the respondent or any one else that someone introduced the bottle of liquor into respondent's car in the afternoon in question. Respondent's claim was and still is a simple one; that if the liquor was in his car on the day in question it was there without his knowledge or consent."

Defendant's first request for instruction to the jury follows and answers the point:

"Respondent claims that he did not own the bottle nor its contents nor did he know anything about it and that if it was in the automobile it was placed there by some other person and without his knowledge or consent."

We find no reversible error. Affirmed.

BUTZEL and SHARPE, JJ., concurred with WIEST, C.J.