People v. Licavoli , 264 Mich. 643 ( 1933 )

In the recorder's court of Detroit defendants were convicted on a charge of being disorderly persons. They petitioned this court for leave to appeal. Incident to their petition the question of the constitutionality of the statutory provision under which they were convicted was raised. This was deemed to be of such importance that the court requested counsel for the respective parties to present the matter. It has been briefed and orally argued. While other questions are presented incident to the application for leave to appeal, the sole question now under consideration is the constitutionality of that part of section 167, Act No. 328, Pub. Acts 1931, under which plaintiffs were convicted, and which reads:

"Any person who engages in an illegal occupation or business * * * shall be deemed a disorderly person. Proof of recent reputation for engaging in an illegal occupation or business shall be prima facie evidence of being engaged in an illegal occupation or business."

Defendants state in their brief:

"It is our contention that this provision of the statute (the last sentence above quoted) is unconstitutional and void in that it prescribes a rule of evidence which is violative of the constitutional guaranty contained in article 14, § 1, of the Constitution of the United States, that no person shall be deprived of life, liberty, or property without due process of law."

There is no doubt of the power of the legislature to enact rules of evidence provided such rules do not conflict with the Constitution or invade rights guaranteed by the Constitution. But such rules of evidence may not be arbitrary, illogical, or capricious. Instead, the conclusion drawn from the evidentiary facts shown must be justifiable in reason. It must be a rational conclusion. Otherwise the rule of evidence is arbitrary in character.

"The general power of the legislature to prescribe rules of evidence and methods of proof is undoubted. While the power has its constitutional limitations, it is not easy to define precisely what they are. A law which would practically shut out the evidence of a party and thus deny him the opportunity for a trial would substantially deprive him of due process of law. It would not be possible to uphold a law which made an actprima facie evidence of crime over which the party charged had no control and with which he had no connection, or which made that prima facie evidence of crime which had no relation to a criminal act and no tendency whatever by itself to prove a criminal act. But so long as the legislature, in prescribing rules of evidence, in either civil or criminal cases, leaves a party a fair opportunity to make his defense and to submit all the facts to the jury to be weighed by them, upon evidence legitimately bearing upon them, it is difficult to perceive how its acts can be assailed upon constitutional grounds." Board ofExcise Commissioners of Auburn v. Merchant, 103 N.Y. 143 (8 N.E. 484, 57 Am. Rep. 705).

As was said by Mr. Justice Butler in Manley v. Georgia,279 U.S. 1 (49 Sup. Ct. 215):

"State legislation declaring that proof of one fact or a group of facts shall constitute prima facie evidence of the main or ultimate fact in issue is valid if there is a rationalconnection between what is proved and what is to be inferred. If the presumption is not unreasonable and is not made conclusive of the rights of the person against whom raised, it does not constitute a denial of due process of law."

Obviously in the above-quoted statute the legislature sought to embody a valid rule of evidence. Its validity is to be presumed. In re Harrand, 254 Mich. 584. All doubts are to be resolved in favor of the validity of the statute. Attorney General v. Railway, 210 Mich. 227 . If the enactment is subject to two constructions, one of which renders it valid while the other renders it invalid, the former, not the latter, construction is to be given. Bowerman v. Sheehan, 242 Mich. 95 (61 A.L.R. 859). An investigation of judicial decisions involving similar statutory provisions reveals at once that in some decisions a different scope and meaning has been given to the expression "prima facie evidence" than in others. If, as I believe, the meaning adopted in some decisions would render the statutory enactment unconstitutional, while that adopted in others would sustain it, then the latter construction should be accepted, because it is to be presumed that the legislature so intended.

As construed by some courts, the expression "prima facie evidence" of an act or conduct which is forbidden by the statute means that in the absence of refuting testimony the statutory "prima facie evidence" establishes the guilt of the accused beyond a reasonable doubt. This in criminal cases would seem to arbitrarily deprive defendant by legislative fiat of the presumption of innocence and in effect cast upon him the burden of disproving his guilt. Admittedly the very terms of the statute so construed fix a measure of credence which the jury must give to the so-called "prima facie evidence." So construed, it is proof beyond a reasonable doubt. This is an invasion of the province of the jury, and deprives the defendant of his constitutional right to trial by jury. The following cases are of this type:

"Prima facie evidence is that degree of proof which, unexplained or uncontradicted, is alone sufficient to establish the truth of a legal principle asserted by a party: 1 Jones, Evidence, § 7." State v. Kline, 50 Ore. 426,432 (93 P. 237).

"Prima facie evidence we understand to be evidence which, standing alone and unexplained, would * * * warrant the conclusion to support which it is introduced." State v. Lawlor,28 Minn. 216, 223 (9 N.W. 698).

In Hammond v. State, 78 Ohio St. 15 (84 N.E. 416, 15 L.R.A. [N. S.] 906, 125 Am. St. Rep. 684, 14 Ann. Cas. 732), a case upon which these defendants rely, the accused was charged with entering into a conspiracy in restraint of trade. Prosecution was under a statute wherein it was provided:

"The character of the trust or combination alleged may be established by proof of its general reputation."

Here, also, the court construed the statutory provision as meaning that the character of the trust or combination might be made certain by proof of reputation alone, and for that reason held it invalid. The court said:

"To concede to the legislature the power to provide, in prosecutions under the act here in question, that the unlawful character of the combination to which the defendant belongs may be established — that is, made certain — by proof of its general reputation as such, is to grant that the legislature has power to, and may, in a criminal case, prescribe a rule of conclusive evidence as to a vital and controlling fact, that shall be binding alike upon court and jury."

It must be conceded that if the statute "prescribes a rule of conclusive evidence" in criminal cases, it is invalid for the reasons pointed out in the Hammond Case. If the words "primafacie evidence," as used in the statutory provision involved in the instant prosecution were to be so construed, I would be disposed to agree that it violated defendants' constitutional right to a trial by jury, and that they were thus deprived of liberty without due process of law.

But there is much respectable authority holding that, as used in this statute, "prima facie evidence" means no more than that the evidence is competent; and, as pointed out in some decisions, it neither compels the defendant to take the witness stand nor to produce rebutting testimony. Instead, he may always present to the jury his contention that his guilt is not by such "prima facie evidence" established beyond a reasonable doubt.

"Construing section 7614, Rev. Codes 1899, which makes the fact that one has or keeps posted in or about his place of business a United States revenue receipt or license for the sale of distilled malt or fermented liquors prima facie evidence that he is selling and keeping for sale intoxicating liquor contrary to law, it is held, that by prima facieevidence is meant competent evidence, and evidence which is legally sufficient to justify the jury in finding the fact of unlawful sales, provided it satisfies them beyond a reasonabledoubt, but not otherwise." State v. Momberg (syllabus), 14 N.D. 291 (103 N.W. 566).

"Where a statute, such as section 3, chap. 15, of the 1911 Session Laws (1911 Sess. Laws, p. 32), provides that when the possession of intoxicating liquors is shown, such fact is 'prima facie evidence that such intoxicating liquors are kept for sale,' the statute means that such prima facie presumption or prima facie evidence is sufficient to go to the jury to prove such facts, and that such possession will be sufficient to support a verdict on that particular fact; but it does not mean that such evidence is conclusive and binding upon the jury, and that it is their duty to bring in a verdict against the defendant where such aprima facie case only is made, and it is error to instruct a jury that under such circumstances they should bring in a verdict of guilty." State v. Adams (syllabus), 22 Idaho, 485 (126 P. 401).

"The provision of the local option law of 1907, making the United States internal revenue stamp or receipt prima facie evidence of a sale of intoxicating liquor, by the person to whom it is issued, at his place of business where the stamp or receipt is posted, merely establishes a rule of evidence, and does not change the fundamental rule as to the burden of proof and quantum of evidence necessary to a conviction in a criminal case." People v. McBride (syllabus), 234 Ill. 146 (84 N.E. 865, 123 Am. St. Rep. 82, 14 Ann. Cas. 994).

"We have many similar statutes, in some of which the words used are 'prima facie evidence,' and in others the words are 'presumptive evidence.' We cannot doubt that these phrases are intended to convey the same idea. * * * They mean that such evidence is competent and sufficient to justify a jury in finding a defendant guilty, provided it does, in fact, satisfy them of his guilt beyond a reasonable doubt, and not otherwise. It would not be just to the members of the legislature to suppose that, by any of these enactments, they intended to make it obligatory upon the jury to find a defendant guilty, whether they believe him to be so or not. It is a well-settled rule of construction that, if a statute is susceptible of two interpretations, and one of the interpretations will render the statute unconstitutional and the other will not, the latter should be adopted." State v. Intoxicating Liquors, 80 Me. 57,61 (12 A. 794).

In a note appended to the report of State v. Brady (121 Iowa, 561 [97 N.W. 62]), in 12 L.R.A. [N. S.] 199, 205, it is said:

"The difference existing between the Iowa cases is explained in State v. Brady, where an attempt is made to define 'primafacie evidence' and 'presumption of guilt,' by saying that the accused is not required 'to overcome the presumption thereby raised' in order to be entitled to an acquittal. What the law does say is that the fact of possession is evidence of guilt, upon which a conviction may properly be returned, unless a doubt, etc., exists. This is the correct rule, but, unfortunately, the failure to discern it has caused great confusion."

In this State many instances may be cited where by statutory enactment proof of something other than the direct act charged constitutes prima facie evidence in prosecutions for violations of the statute. The following are examples taken at random: Prefixing the word doctor or its abbreviations to one's name isprima facie evidence of practicing medicine (2 Comp. Laws 1929, § 6745); possession of the carcass or skin or any portion thereof of a protected animal out of season is prima facie evidence of the unlawful killing of the animal by such possessor (2 Comp. Laws 1929, § 6221); prohibited appliance for use in fishing found in a boat house on the shore of a lake isprima facie evidence of its use in violation of the statute (2 Comp. Laws 1929, § 6380); possession of policy or pool books isprima facie evidence of their use by the possessor in the form of gaming prohibited (Act No. 328, Pub. Acts 1931, § 306); and likewise possession of unstamped boots or shoes showing the use of imitation leather, if such is the fact, is prima facie evidence of intent to sell the same (Act No. 328, Pub. Acts 1931, § 290). The validity of these and many other like statutory provisions can be sustained only on the ground that prima facie evidence means competent evidence and nothing more.

It is urged that the provision in the statutory enactment now under consideration in making reputation "prima facie evidence" is invalid because reputation is necessarily hearsay. On this ground effort is made to distinguish this statutory provision from those which provide that proof of specific related facts constitute prima facie evidence. This position seems untenable. To be sure reputation is the culmination of hearsay. Nonetheless reputation, good or bad, is a fact.

"An existing reputation is a fact to which any one may testify who knows it; he knows it because he hears it, and what he hears constitutes the reputation." Bathrick v. Detroit Post Tribune Co., 50 Mich. 629, 642 (45 Am. Rep. 63).

In the regular course of events reputation results from one's course of conduct in life. Good reputation is an asset of him who possesses it. It is protected by the Constitution as such.Park v. Detroit Free Press Co., 72 Mich. 560 (1 L.R.A. 599, 16 Am. St. Rep. 544). If one is damaged in his good reputation by slander or libel, the law affords him a remedy. In such litigation, whether one is possessed of a good reputation becomes an issue of fact, provable by competent testimony the same as any other fact. Thus it would seem the presumption orprima facie evidence provided for in this statute arises from and requires proof of a fact. This statutory rule of evidence is not faulty on the ground that the ultimate fact is established by hearsay. It is also asserted that proof of reputation as tending to establish the guilt of an accused is at best a weak and inferior type of proof. Even so, this circumstance only results in minimizing the probative force of the testimony. It does not go to its competency or admissibility.

The rule of evidence embodied in this statutory enactment is not defective on the ground that there is lack of rational connection between the offense charged and the fact or facts declared to be prima facie evidence. As hereinbefore noted, one's reputation ordinarily is the result of his own course of conduct in life. Rarely, if ever, does one acquire a reputation of being engaged in unlawful business except there is some foundation in fact therefor. It may be admitted that the misfortune of having a bad reputation sometimes arises from circumstances beyond the control of its victim. And it is true that a bad reputation may have originated in malice or even in mistake, but bad reputations are not ordinarily so acquired; and in this regard this type of testimony differs little, if at all, from direct testimony on any controverted issue of fact. Witnesses in giving direct testimony may be prompted by malice to misrepresent or distort, and often they may deviate from truth through mistake or prejudice. In every instance the triers of the fact must weigh the testimony in the light of these circumstances so far as they are disclosed.

It is elementary that, as to a defendant who testifies or any of his witnesses, impeachment may be effected by proof of a bad reputation for truth and veracity, and thereby the defense offered may be weakened or even destroyed. Likewise, if the credibility of the people's witnesses is so attacked, they may in turn be sustained by proof of good reputation for truth and veracity. It is difficult to comprehend the logic of, or justification for, this rule of evidence without conceding, if the legislature sees fit to so provide, that proof of bad reputation of the accused relative to the particular matter with which he is charged has a rational bearing upon the question of his guilt, and is therefore of evidentiary force. Such testimony, to the extent to which it is believed, surely tends to overcome the presumption of innocence, notwithstanding it may be wholly insufficient to establish guilt beyond a reasonable doubt.

It is urged that, if this enactment is sustained, the legislature might proceed to enlarge the scope of this type of legislation by making proof of reputation competent evidence of the commission of any crime. If constitutional, this provision should not be nullified because of indulgence in the presumption that some future legislature may either attempt to exceed its powers in this regard or may enact some unwise legislation. The wisdom of the legislation, if valid, is for the legislature, not for the courts. Nieminen v. Isle RoyaleCopper Co., 214 Mich. 212. A number of the cases cited in defendants' brief do not bear upon the question we are now considering. Instead, they are cases wherein it was held that the particular statutory rule of evidence was invalid because it was arbitrary in that by it the legislature attempted to give evidentiary force to facts and circumstances which had no rational tendency to establish the ultimate fact in issue. We so understand the decision rendered in each of the following cases: Casey v. United States, 276 U.S. 413 (48 Sup. Ct. 373);Manley v. Georgia, supra; Calder v. Bull, 3 Dallas (3 U.S.), 386; State v. Beswick, 13 R.I. 211 (43 Am. Rep. 26); City of Watertown v. Christnacht, 39 S.D. 290 (164 N.W. 62, 667 L.R.A. 1917 F, 903). In each of the above cases it might well be said as was said in Casey v. United States, supra:

"The suggested rational connection between the fact proved and the ultimate fact presumed is imaginary."

The only remaining question is whether it should be held that uncorroborated testimony of recent reputation of engaging in an illegal occupation or business is sufficient to sustain the conviction of one so charged. In this State the trial courts, as well as this court on review, have inherent power to determine whether a verdict of guilty is sustained by the proof. In the exercise of their common-law powers courts may determine whether a particular type of proof, if uncorroborated, is sufficient to sustain conviction. For example, it is a rule of law by judicial determination in this State that an uncorroborated extrajudicial confession is not sufficient. People v. Lane, 49 Mich. 340; People v. Ranney,153 Mich. 293 (19 L.R.A. [N. S.] 443). There are many other decisions of like character. In keeping with such holdings it should be here held that, notwithstanding the statutory rule of evidence now under consideration, proof of recent reputation of engaging in an illegal occupation or business, if uncorroborated, is not sufficient to sustain a conviction. This is in accord with the following cases: Dick v. Commonwealth,159 Ky. 761 (169 S.W. 496); Thomson v. State, 49 Tex.Crim. 384 (97 S.W. 316); People, ex rel. Wilson, v. Flynn,72 App. Div. 67 (76 N.Y. Supp. 293). See, also, State v.Eubank, 33 Wn. 293 (74 P. 378). In People, ex rel. Wilson, v. Flynn, supra, the reason assigned in support of the holding is that in the absence of some corroborating testimony there is no showing of a rational relation between the offense charged and the testimony received under the statutory rule.

Our conclusion is that the quoted statutory provision should be construed to mean that proof of recent reputation for engaging in an illegal occupation or business is competent proof thereof, but is not sufficient to sustain a conviction if uncorroborated by other competent testimony. When so construed, the enactment of the statute is within the constitutional powers of the legislature. For reasons assigned in support of defendants' motion for leave to appeal (but not herein set forth), an appeal is allowed.

WEADOCK and SHARPE, JJ., concurred with NORTH, J.