State v. Kelly , 218 Minn. 247 ( 1944 )

Minn. Const. art. 6, § 14, provides: "Legal pleadings and proceedings in the courts of this State shall be under the direction of the legislature." The legislature cannot constitutionally make one fact conclusive evidence of another if the former is not in and of itself conclusive. Vega Steamship Co. v. Consolidated Elev. Co. 75 Minn. 308,77 N.W. 973, 43 L.R.A. 843, 74 A.S.R. 484; Meyer v. Berlandi,39 Minn. 438, 40 N.W. 513, 1 L.R.A. 777, 12 A.S.R. 663; 20 Am.Jur., Evidence, § 10. We are, however, committed in this state to the rule that the legislature may provide that certain facts shall be prima facie evidence of other facts if there is a natural or rational evidentiary relation between the facts proved and those presumed. State ex rel. Robertson v. New England F. C. Co. 126 Minn. 78, 147 N.W. 951,52 L.R.A.(N.S.) 932, Ann. Cas. 1915D, 649; Thorpe v. Pennock Merc. Co. 99 Minn. 22, 108 N.W. 940, 9 Ann. Cas. 229. Such statutes have been held to be within the well-settled power of the legislative body to change the rules of evidence and do not infringe upon the rights of the judiciary or violate any other provisions of the federal or state constitutions. 20 Am. Jur., Evidence, § 9. This power of the legislature is not confined to civil cases.

"The power of the legislature to declare one fact presumptive or prima facie evidence of another is not confined to civil cases. In criminal prosecutions the legislature may, with some limitations, enact that when certain facts have been proved, they shall be prima facie evidence of the existence of the main facts." Id. § 11, and cases under note 6.

There is agreement that in criminal cases a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, for in such case the due process protection of theFifth and Fourteenth Amendments of the United States constitution would be offended. There can be no legitimate quarrel with the assertion, moreover, that we should be guided by the following rule set forth in Tot v. United States,319 U.S. 463, 467, 63 S. Ct. 1241, 1245, 87 L. ed. 1519, 1524:

"* * * a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. * * * But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them, it is not competent for the legislature to create it as a rule governing the procedure of courts."

But I am unable to agree with the conclusion of the majority that the Tot case is justification for declaring invalid the prima facie rule under the statute here considered as applied to the facts in the case at bar. That case, in my opinion, is so clearly distinguishable on the facts from the situation here that there is no reasonable basis for holding that the conclusion reached by that court should be applied here in ruling out the "prima facie" provision under consideration.

A careful study of the Tot case leads me to the conclusion that it cannot properly serve as authority for declaring invalid the statutory provision under the facts here. It will be observed at the outset that the Tot case involved a prosecution under the federal firearms act (15 USCA, § 902[f]), making it unlawful for any person who has been convicted of a crime of violence to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. Such a prosecution is quite different from one brought in a dry county under a state law making it an offense to have liquor in one's possession for the purpose of sale. Judicial notice may be taken of the problems of enforcement that have arisen under liquor laws, which distinguish them from other statutes.

A brief consideration of the evils sought to be corrected by congress through the federal firearms act is necessary in order fully to comprehend the distinction between the prima facie provision under that law and the prima facie provision under the liquor law here involved. Individuals convicted of crimes of violence, roaming from state to state, had got beyond the control of local authorities to such an extent as to constitute a serious threat to our national security and presented a necessity for corrective legislation. Because of the difficulty in purchasing firearms locally, an ex-convict who wished to obtain them could only do so at the source of manufacture at some distant point and have them shipped to him in interstate commerce. United States v. Platt (D.C.) 31 F. Supp. 788. Thus the federal firearms act came into being, providing, interalia, that proof of a prior conviction of a crime of violence and proof of the defendant's possession of a firearm subsequent to such conviction should constitute prima facie or presumptive evidence that the firearm was shipped, transported, or received in interstate or foreign commerce.

The question in the Tot case was stated by the court thus (319 U.S. 466, 63 S. Ct. 1244, 87 L. ed. 1523):

"* * * There remains for decision the question of the power of Congress to create the presumption which § 2(f) declares, namely, that, from the prisoner's prior conviction of a crime of violence and his present possession of a firearm or ammunition, it shall be presumed (1) that the article was received by him in interstate or foreign commerce, and (2) that such receipt occurred subsequent to July 30, 1938, the effective date of the statute."

Applying the rule so laid down, the question was whether there was a rational connection between the fact proved (possession of the firearm) and the ultimate fact presumed (that the firearm was shipped, transported, or received in interstate commerce subsequent to July 30, 1938). And was the inference of transportation or receipt in interstate commerce since that date from the fact of possession so unreasonable as to be purely an arbitrary mandate because of lack of connection between the two in common experience?

To permit a trier of fact to consider a prima facie rule under such a statute, where proof that the firearm has been received in interstate commerce is not required, is a vitally different thing from permitting the prima facie rule to be invoked under a law making it an offense to possess liquor with intent to sell it. It will be observed that under the firearms statute the presumption is not that the defendant received the firearm with guilty knowledge that it had been transported in interstate commerce, but the presumption created is that, since he possessed it, it had theretofore been transported or shipped in interstate commerce. The government had to prove only that the defendant, having previously been convicted of a crime of violence, had in his possession a pistol. Then the law presumes that it was transported in interstate commerce. In the instant case the presumption embraces the intent of the person who possesses the liquor. It seems obvious to me that there is a real difference between such a federal statute and a state law which provides the finding of intoxicating liquor, by means of a search warrant, shall be prima facie evidence that the same was kept for the purpose of sale.

I do not overlook the fact that in the Tot case the court said that the rational connection test is the controlling test and the convenience test but a corollary. The court, however, further stated in this connection (319 U.S. 469,63 S. Ct. 1246, 87 L. ed. 1525):

"* * * The argument from convenience is admissible only where the inference is a permissible one, where the defendant has more convenient access to the proof, and where requiring him to go forward with proof will not subject him to unfairness or hardship."

It seems to me it can reasonably be said that to require a defendant to go forward with proof that he had not acquired or received a firearm in interstate commerce since the effective date of the act is quite different from requiring a defendant to go forward with proof regarding his lack of intention to sell liquor which was found in his possession under a search warrant.

Coming to the facts here, it appears that upon the issuance of a search warrant under the statute, pursuant to a complaint signed by the sheriff of Freeborn county — a dry county — a search was made of defendant's premises, and in the garage attached to the house was found a case of Scotch whiskey, an empty carton marked with the trademark "Wilken Reserve Blended Whiskey," and three half-pints of gin locked in the glove compartment of an automobile parked nearby.

It will be noted that there is a provision in § 340.65 (§ 3200-81) for the issuance of a search warrant only after a complaint has been signed under oath. Such a provision is wholly absent from the firearms statute and in many of the statutes of states which have sustained a similar prima facie provision under a charge of having liquor in possession for sale. State v. Lapointe,81 N. H. 227, 123 A. 692, 31 A.L.R. 1212, and annotated cases. The majority opinion attaches little importance to the search warrant provision and brushes it aside with the comment that the sheriff conceded that he had no evidence of sales. Of course, if he had evidence of sales, it would have been unnecessary to charge defendant with the offense of having liquor in possession for sale. The very purpose of including that charge in the statute as an offense is to permit of conviction on circumstantial evidence of sales where direct evidence thereof is lacking and difficult to obtain. But it is assumed that a public officer or a private citizen will not sign a complaint under oath charging a person with the offense of having liquor in possession for sale unless some information has come to him that makes it appear reasonable that such an offense has been committed. It is true, the complaint does not constitute evidence any more than an indictment. Yet it affords protection to the individual so that he will not be harassed in his possession of liquor without the foundation being laid for a lawful search. It seems to me, considering the statute with the search warrant provision, that the finding of the case of Scotch whiskey, the carton, and the three half-pints of gin in the auto supplies a rational connection between those facts which were proved and the fact presumed that the liquor was kept for the purpose of sale.

Another distinction will be noted between the firearms statute and the one here. Under the federal statute, a defendant is always under the handicap of having his credibility affected if he testifies, because a conviction of a crime of violence must be shown before the prima facie rule can take effect, while under the statute here defendant's credibility is only affected if there has been a conviction, and the showing of such a conviction is not a prerequisite. The record here shows that the state offered to show a prior conviction, but the offer was properly refused by the trial court, since that could only be shown as affecting defendant's credibility; and, inasmuch as defendant did not take the stand to testify, there was no opportunity afforded the state to prove such conviction.

Of course, mere possession of liquor is not an offense under our statute. I see no danger under this prima facie provision of convicting an individual who, bona fide, has the liquor in his possession for personal use. It is not a question of how we might decide the fact issue were we sitting as triers of fact and determining whether the liquor was kept for sale. The amount of the liquor found, of course, was not inconsistent with personal use. It may well be true, moreover, that even the three half-pints of gin in the auto might, under some circumstances, be not possessed for the purpose of sale. It seems to me that we may reasonably take judicial notice of the fact that even an individual of extraordinary thirst and unusual capacity for intoxicating beverages does not find it necessary for personal use to have in possession in his auto three half-pints of gin. This circumstance, considered in connection with the case of Scotch whiskey and the empty carton in the garage, establishes, in my opinion, a reasonable connection between the fact proved and the presumption that the liquor was kept for sale.

Defendant did not see fit to testify in his own behalf. That was his privilege. His failure to do so cannot be considered as evidence of guilt. Yet he had a fair opportunity to present his defense and submit all the facts to the jury. The jury was properly charged that defendant was presumed to be innocent (despite the prima facie presumption under the statute), and it was incumbent upon the state to prove his guilt beyond a reasonable doubt.

"* * * So long as the legislature, in prescribing rules of evidence in criminal cases or defining presumptions therein, leaves an accused a fair opportunity to make his defense and submit all the facts to the jury for evaluation, its enactments are viewed as constitutional by the courts." 20 Am. Jur., Evidence, § 11; Meadowcroft v. People, 163 Ill. 56,45 N.E. 991, 35 L.R.A. 176, 54 A.S.R. 447; State v. Beach,147 Ind. 74, 43 N.E. 949, 46 N.E. 145, 36 L.R.A. 179; People v. Cannon, 139 N.Y. 32, 34 N.E. 759, 36 A.S.R. 668; State v. Rothrock, 45 Nev. 214, 200 P. 525. Similar provisions under liquor statutes of other states making possession prima facie evidence of intent to sell, even absent a search warrant provision, have been sustained by the great weight of authority. 31 A.L.R. 1212; 30 Am. Jur., Intoxicating Liquors, § 416.

I quite agree that the constitutional rights of defendant should be adequately protected. It is axiomatic that due process of law, preserved for all by our constitution, demands that the courts stand guard, to the end that this constitutional shield deliberately planned and prescribed for the benefit of every person shall be forever preserved. On the other hand, it is equally imperative that courts do not impair the legislative function of declaring reasonable rules which have for their purpose the enforcement of law and the making of the country an orderly, self-respecting, and law-abiding place in which to live.