BROWN, J., dissenting.
Defendant was charged with unlawfully and willfully keeping for sale, etc., spirituous liquors contrary to the form of the statute, etc. Upon a plea of not guilty the State introduced one J. A. Williams, who testified that on the night in question witness and Mr. Bivens went up the road to see if they could head the defendant off. That about a mile or two from town they met him. He had two five-gallon kegs of corn whiskey, a one-half gallon jug, and one pint in a bottle, a little over a mile from town; he went on the public road in a top buggy. Whiskey was covered over with a lap robe. Said he got it up in the country from a colored man, whom he did not know. Said it did not belong to him, it belonged to some other people; that he would tell who it belonged to when it was necessary to do so; that he would prove it up. There was other testimony of the same character. It was admitted that the defendant had no license to sell liquor. He introduced no testimony. Defendant requested the court in writing to charge the jury, "that upon the whole evidence you cannot find the defendant guilty; the verdict should be not guilty." This was refused. Defendant excepted.
The court charged the jury, among other things, as follows: "That under the rules of evidence in all cases where defendant is charged with crime, it is the duty of the State to satisfy the jury beyond a reasonable doubt of the defendant's guilt. The statute under which the defendant is indicted provides that if any person other than licensed retail dealers under State laws shall keep in his possession liquors to the quantity of more than one quart within said county, it shall be prima facie evidence of his keeping it for sale, within the meaning of this act. The State insists it has shown to you that the defendant had more than one quart of liquor in his possession in said
(632) county of Union. The State insists that makes a prima facie case of guilt against the defendant, and that therefore, it has shown to you under the rules of evidence prescribed by this statute that the defendant is guilty. The law is that it is presumed, or rather it is a prima facie case — that is, a case upon the first impression made out, nothing else appearing — that the defendant had it for sale, if he is shown to have kept more than one quart of liquor in his possession within the. county at one time. That is what the State insists upon. It insists that it has shown you that the defendant had the liquor, and that this statute is applicable, and that it is your duty to find him guilty. The defendant contends that at the time the prosecuting witness met him, he had stated that the liquor was not his; that he gave no account of it further than to say that it belonged to some other parties. The State does not rely upon his confession for a conviction in this case, but upon the fact that the liquor was found in his possession, and upon the statute. Taking this and applying this rule of evidence, if you find beyond a reasonable doubt that he had the liquor and kept it for sale, you will return a verdict of guilty; if the State has not satisfied you upon all of the testimony, you will return a verdict of not guilty." To this charge the defendant excepted. A verdict of guilty; motion for new trial; motion denied. Judgment, and appeal by the defendant.
After stating the facts: The defendant is indicted for violating the provisions of chapter 434, Laws 1903, which provides that it shall be unlawful for any person, etc., other than licensed retail dealers, to sell, exchange, barter, or dispose of for gain, or to keep for sale, within the county of Union, any spirituous, vinous, malt, and intoxicating liquors, etc. That if any person other than licensed retail dealers, under State laws, shall keep in his possession (633) liquors to the quantity of more than one quart within this county, it shall be prima facie evidence of his keeping it for sale, within the meaning of this act.
The defendant contends that the section of the statute under which he was convicted is unconstitutional and void, for that: (1) It is an invasion by the legislative of the judicial department of the Government. (2) That it deprives the defendant of the presumption of innocence and puts upon him the burden of showing that he is not guilty.
There can be no serious doubt of the power of the Legislature to change the rules of evidence and to prescribe different rules in different classes of cases, subject to well-defined limitations.
"Laws which prescribe the evidential force of certain facts by enacting that upon proof of such facts a given presumption shall arise, or which determine what facts shall constitute a prima facie case against the accused, casting the burden of proof upon him of disproving or rebutting the presumption, are not generally regarded as unconstitutional, even though they may destroy the presumption of innocence. An accused person has no vested right in this or any other presumption or law of evidence or procedure that the law-making power cannot, within constitutional limits, deprive him of. The existing rules of evidence may be changed at any time by legislative enactment. But the legislative power must be exercised within constitutional limitations so that no constitutional right or privilege of the accused is destroyed. He cannot be deprived of a fair and impartial trial by a jury of his peers according to the law of the land." McLain Crim. Law, sec. 16; Com. v. Smith, 166 Mass. 370; S. v.Cunningham, 25 Conn. 195. Discussing a statute in some respects similar to ours, the Supreme Court of Massachusetts, in Com. v.Williams, 6 Gray (72 Mass.), 1, says: "Nor does it appear that the establishment of this new rule of evidence is in any degree the result of judicial, instead of legislative action; or that it does (634) in any way infringe upon the indisputable right of the accused to have his guilt or innocence ascertained and the charge made against him passed upon by a jury. The statute Only prescribes, to a certain extent and under particular circumstances, what legal effect shall be given to a particular species of evidence, if it stands entirely alone and is left wholly unexplained. 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. The burden of proof remains continually upon the Government to establish the accusation which it makes. . . . The only purpose and effect of the particular clause of the statute objected to are to give a certain degree of artificial force to a designated fact until such explanations are afforded as to show that it is at least doubtful whether the proposed statutory effect ought to be attributed to it; but the fact itself is still to be shown and established by proof sufficient to convince and satisfy the minds of the jurors. . . . Making out a prima facie case does not change the burden of proof. But if the Government, in proving the delivery of any quantity of spirituous liquor, in support of a prosecution for an alleged violation of the law, prove also, as it must almost necessarily do, as a part of the transaction, the circumstances attending it, then those circumstances immediately become evidence in the case. to be weighed and
considered by the jury; and although the naked delivery would be prima facie evidence of the sale, and so, indirectly, of the guilt of the accused, yet this proof being accompanied by evidence of the manner in which the delivery occurred, and of the surrounding circumstances, he is not to be convicted unless upon just consideration of all the facts thus disclosed and placed before the jury they are satisfied beyond a reasonable doubt of his guilt." Board of Excise v. Merchant, 103 N.Y., 143; People v. Cannon, 139 N.Y. 32; Voght v. State, (635) 124 Ind. 358); Lincoln v. Smith, 27 Vt. 328); Santo v. State, 2 Iowa 165; Black on Intox. Liq., 60. The Legislature of this and, we presume, every other State has frequently changed the rules of evidence and declared that certain facts or conditions, when shown, shall constitute prima facie evidence of guilt. The power to do so has always been sustained. By section 983 of The Code it is made a "high misdemeanor," punishable by imprisonment in the penitentiary not less than five years, to sell liquor "found to contain any foreign properties or ingredients poisonous to the human system." If such liquors are found, upon analysis of "some known competent chemist," to contain any poisonous matter, "it shall be prima facie evidence against the party making the sale." By section 1005, prohibiting the carrying of concealed weapons off one's own premises, it is declared that if any person shall have about his person any such weapon, such possession shall be prima facie evidence of concealment. The construction of this statute has been frequently before this Court, but the power of the Legislature has not in any case been questioned to prescribe the rule of evidence, although the effect of it has been frequently decided, as in S. v. Gilbert, 87 N.C. 527, wherein Ruffin, J., says: "The statute declares that the having of a deadly weapon upon one's person shall be prima facie evidence of its concealment, and this of itself seems necessarily to imply that it may be done under such circumstances as will not amount to an offense." In this and other cases this Court has held that upon all of the facts brought out by the State the presumption was rebutted and the defendant acquitted. By section 1077 it is made a misdemeanor for any dealer to sell, etc., liquor to any minor, etc., knowing the said person to be a minor —"Provided, that said sale or giving away shall be prima facie evidence of such knowledge." Section 1089, declaring it to be a misdemeanor to sell mortgaged property, makes the failure of the sheriff, (636) etc., to find the property prima facie evidence of a sale with intent to hinder, defeat, etc., the rights of the mortgagee. Section 1109 makes it a misdemeanor to secrete or harbor any seaman who has deserted — knowing of such desertion — declaring that the
concealment shall be deemed prima facie evidence of knowledge. These and other statutes not necessary to cite show the Course of legislation in this State on this subject. The author of the latest work on the law of evidence, in discussing the subject, says: "A rule of presumption is simply a rule changing the burden of proof, i. e., declaring that the main fact will be inferred or assumed from some other fact until evidence to the contrary is introduced. There is not the least doubt, on principle, that the Legislature has the entire control over such rules as it has over all other rules of procedure in general and evidence in particular, subject only to the limitations of evidence expressly enshrined in the Constitution. . . . Yet this elementary truth has been repeatedly questioned, and courts have repeatedly vouchsafed an unmerited attention to the question, chiefly through a hesitation in appreciating the true nature of a presumption and a tendency to associate in some indefinite manner the notion of conclusively shutting out all evidence and that of merely shifting the duty of producing it. Fortunately, sound principle has almost everywhere prevailed, though at an unnecessary expense of argument and hesitation." Wigmore on Evidence, 1354.
"With what intent a person keeps intoxicating liquors is always a question of fact for the jury, to be determined upon a view of all the evidence. And in disposing of that question they are required by the statute to consider the keeping of the articles, in the manner specified in the statute, as presumptive evidence of an unlawful intent. But that evidence may be rebutted and controlled by the circumstances, as would be the case in the instances of the sexton and carman, alluded to, as well as by other evidence in the case, whether shown by the accused in his defense or by the State in connection with (637) the evidence proving the possession. With such evidence, the jury may also take into consideration the presumption of the innocence of the accused." S. v. Cunningham, supra. The defendant says that, conceding this to be true, the statute is void for that it arbitrarily makes an act lawful in itself prima facie evidence of a guilty intent. This criticism would apply to almost every case in which an act is made primafacie evidence of guilt. As illustrating this — carrying a weapon off one's premises is entirely lawful and the right to do so, it has been said, is secured by the Constitution. Const., Art. I, sec. 24. It has been expressly held that the act in this respect is constitutional. In S. v.Cunningham, supra, the Court says: "It has been said that the keeping of spirituous liquors is a lawful act, and being such, the Legislature has no constitutional power to make it evidence of an unlawful act. Many acts at common law are lawful, and yet the performance of them is prohibited by the Legislature, in the legitimate
exercise of their sovereign power. Even the sale of such liquors is not by the common law unlawful. It is only made so by statute. And if the Legislature can constitutionally prohibit such sale, we see not why they may not properly prescribe what acts shall be considered as evidence of an intent to make the sale." The slightest reflection will show that if this objection to the statute could be sustained, the power of the Legislature would be practically denied.
The defendant next calls into question the validity of the statute be cause he says the fact made prima facie evidence of the guilty intent has no relation to the criminal act and does not tend to prove it. First, because the possession of liquor does not tend to show an intent to sell it, and, second, the possession of a quantity more than one quart is entirely consistent with such possession for personal or domestic use. It must be conceded that some of the courts have placed this limitation upon the legislative power. Peckham, J., in People v.(638) Cannon, supra, says: "The limitations are that the fact upon which the presumption is to rest must have some fair relation to or natural connection with the main fact. The inference of the existence of the main fact, because of the existence of the fact actually proved, must not be merely and purely arbitrary or wholly unreasonable, unnatural, or extraordinary, and the accused must have in each case a fair opportunity to make his defense, and to submit the whole case to the jury to be decided by it after it has weighed all the evidence, and given such weight to the presumption as to it shall seem proper." S. v. Beswick, 13 R. I., 211. This case has been criticised in the following language: "The opinion discloses confused notions as to the nature of presumptions and burdens of proof."
"It has occasionally been suggested that these legislative rules of presumption, or any legislative rules of evidence, must be tested by the standard of rationality, and are invalid if they fall short of it. But this cannot be conceded. If the Legislature can make a rule of evidence at all, it cannot be controlled by a judicial standard of rationality, any more than its economic fallacies can be invalidated by the judicial conceptions of economic truth. Apart from the Constitution, the Legislature is not obliged to obey either the axioms of rational evidence or the axioms of economic science. All that the Legislature does in such an event is either to render admissible a fact which was before inadmissible, or to place the burden of producing evidence on the opposite party. When this has been done, the jury is free to decide; or, so far as it is not, this is because the party has voluntarily failed to adduce contrary evidence. There is here nothing conclusive, nothing prohibitive. So long as the party may exercise his freedom to introduce evidence, and the jurors may exercise their freedom to
weigh it rationally, no amount of irrational legislation can (639) change the result." Wigmore on Evidence, sec. 1354.
We think that a full recognition of the limitation does not invalidate the statute under discussion. Certainly, the Legislature has the power to prohibit the keeping of liquor with intent to sell. Black on Intox. Liq., 387. It is equally clear that, without any statutory rule of evidence, the keeping is an essential fact to be proved and necessarily relevant. The quantity, place, circumstances, etc., in and under which it is kept are to be considered by the jury in passing upon the intent. Black on Intox. Liq., 525. This, for the manifest reason that they have a relation to the offense charged, to wit, the keeping with intent to sell. Therefore, when the Legislature gives an additional intensity to the proof of the fact which is, without any statute, relevant as tending to prove the fact in issue, we are unable to see how it can be said that it exceeds its constitutional limitation in this respect. The defendant, however, contends that the quantity named, to wit, "more than a quart," has no relation to and does not tend to prove the offense. The power being conceded, it is difficult to conceive how the court could undertake to fix the limit in respect to the quantity prescribed, as the basis of the presumption. It will be observed that it is not the keeping of a quart, or any fixed quantity beyond a quart, which is made a prima facie case, but "more than a quart." Of course, the prima facie case would be stronger or weaker according to the quantity kept in excess of a quart. We would find it exceedingly difficult to prescribe any limit to the power of the Legislature in this respect. We must ever keep in mind the fundamental principle that courts must not call into question the validity of statutes because they may not think them wise or wholesome. To do so would be to introduce untold confusion and uncertainty into our jurisprudence. It has been so frequently and forcibly said that within the sphere of its power the Legislature is supreme, that it does not need the citation of authority or extended reasoning to sustain it. As enforcing this truth, we quote: "Whether the Legislature acted wisely or not is a question with which we have nothing to do. The power being admitted, its abuse (640) cannot affect it; that must be for the legislative consideration. It is sufficient that the judiciary claim to sit in judgment upon the constitutional power of the Legislature to act in a given case. It would be rank usurpation for us to inquire into the wisdom or propriety of the act." Nash, C. J., in Taylor v. Comrs., 55 N.C. 141. "It will not throw much light on a question like this to put extreme cases of abuse of the power to test the existence of the power itself." Shaw, C. J., inNorwood v. Commrs., 13 Pick., 60. "There is no shadow of reason for supposing that the mere abuse of power was meant to be corrected
by the judiciary." Black, C. J., in Sharpless v. Mayor, 21 Pa. St., 147. See, also, Iredell, J., in Calder v. Bull, 3 Dal., 386. In Cunningham'scase, supra, the act provided that the finding of spirituous liquors in possession of a person, except in his dwelling-house, should constitute prima facie evidence that it was kept for sale. In Com. v. Williams,72 Mass. 1, the statute provided that the delivery of liquor in any other place than a dwelling-house should constitute prima facie evidence of guilt. In Cannon's case, supra, the act made the possession of a junk seller of second-hand bottles and kegs presumptive evidence of the unlawful use. In Santo v. State, 2 Iowa 165, the statute made the keeping of liquor in any other place than the dwelling or its dependenciesprima facie evidence of keeping liquor with intent to sell. These acts were all sustained. See, also, Lincoln v. Smith, supra;Am. Fur. Co., v. U.S., 2 Peters, 358). Notwithstanding the decision in Beswick's case, supra, we find the Supreme Court of Rhode Island at the same term, in S. v. Mellor, 13 R. L., 666, holding that a (641) statute providing that evidence of the sale or keeping of intoxicating liquors for sale shall be evidence that the sale or keeping is illegal, was valid — the Court saying: "This inference or presumption, without the aid of the statute, would not be available as legal evidence, but we think that it was in the power of the General Assembly to make it so, and when it once becomes evidence, it is for the jury, not the court, to say whether or not it is sufficient to prove the fact, for the proof of which it is adduced." We know of no rule based upon sufficiently general observation or experience which would enable this Court to say, as matter of law, that the keeping of more than a quart of liquor in one's possession has no relation to an intent to sell. It will be observed that this is a local statute applying Only to the county of Union. Upon what basis the Legislature adopted the standard we are not informed. There is no evidence before us how much liquor is usually kept for private or domestic use by citizens of that county. The evidence in this case is the extent of our information. Certainly, there is nothing here to bring us to the conclusion that the standard fixed is so unreasonable and arbitrary as to have no relation to the offense charged. An examination of a large number of cases from those States which have enacted repressive legislation in regard to the liquor traffic shows that it has been found necessary to incorporate this and similar provisions in their statutes, and the courts of such States have, with the exception of the one case in Rhode Island, uniformly sustained them. That Court has sustained statutes similar to the one before us. If we should say that the keeping of "more than a quart" has no relation to the offense, what standard shall we set? Upon what more rational basis could we fix the limit — at a gallon or
any other quantity? It is not our province or duty to supervise the legislative mind in this regard. To the suggestion that this law may be abused in its execution and the personal and property rights of the citizen invaded, it is sufficient to say that human wisdom has never yet devised any system of legislation or jurisprudence to (642) which the same objection may not be urged It would be difficult to find any principle of the common law or any statutory law which does not contain, within itself, the germ from which an oppressive administration may not develop. After all that can be said and done, the safety of the citizen is dependent upon the observance and enforcement of his constitutional rights, as interpreted and enforced by officers of his own selection. As was said by a great jurist and statesman. whose life was devoted to the defense of constitutional liberty, "There is nothing more easy than to imagine a thousand tyrannical things which the Legislature may do if its members forget all their duties, disregard utterly the obligations they owe to their constituents, and recklessly determine to trample upon right and justice."Black, J., in Sharpless v. Mayor, supra. While we are to keep a watchful eye, clear mind, and firm hand upon every threatened invasion of the constitutional guarantees of the citizen, we are to accord to the several departments of the Government, and those who may administer them, the same jealous regard in that respect which we ourselves exercise.
As indicating that the General Assembly, in its desire to suppress the liquor traffic in the county of Union, in response (as we must assume) to the wishes of the citizens of that county, we note that it has carefully guarded the sanctity of the dwelling by requiring any person, applying for a warrant to search suspected premises, to file an affidavit setting forth that the affiant has reason to believe that the owner of such premises is keeping for sale liquors as prohibited by this act, which reasons shall be set forth in the affidavit, and if the justice of the peace . . . shall deem such reasons sufficient, he shall issue his warrant . . . It will thus be seen that no citizen may be disturbed in his premises, under this statute, until a judicial officer shall determine upon sworn evidence that sufficient reason exists therefor. While the statute may be open to criticism in respect (643) to its rigid provisions, such criticism must be addressed to the legislative department of the Government, which represents and gives expression to "the State's collected will," rather than to us, who are confined to the question of its validity measured by the Constitution of the State.
The defendant next suggests that the statute violates the Constitution in that it prescribes a rule of evidence applicable only to the
citizens of Union County, and not to other counties in the State. The force of this contention depends upon the power of the Legislature to declare that the keeping of spirituous liquors with intent to sell in Union County is a misdemeanor, or, in other words, to pass statutes of local application upon the subject. This power has been so long recognized by the Court and exercised by the Legislature that we do not deem it necessary to examine the foundations upon which it rests. In S. v. Muse, 20 N.C. 463, Ruffin, C. J., says: "There can be no doubt that the Legislature hath power, and that there is an obligation in sound morals and true policy on that body, to protect the decency of Divine worship by prohibiting any actual interruption of those engaged in worship or any practices at or near the place, in which the Legislature may see a tendency to produce such interruptions." The act referred to prohibited the sale of spirituous liquors near a church. This Court, in S. v. Joyner, 81 N.C. 537, says: "Nor is the competency of the Legislature to pass local acts such as the present now open to question. The power has been so long and so often exercised and recognized in cases coming before this and other courts that its existence must be considered as settled." S. v. Stovall, 103 N.C. 416; Black on Intoxicating Liquor, sec. 40. The power to pass the law of local application being conceded, we are unable to perceive any reason why the Legislature may not prescribe rules of evidence, within the limitations fixed, applicable to charges for its violations; nor are (644) we cited to any authorities to the contrary.
The defendant suggests that the statute violates Article XIV, section 1, of the Federal Constitution, which prohibits any State from making or enforcing any law which denies to any person within its jurisdiction equal protection of the law. The question viewed from this standpoint has been so thoroughly and ably discussed and settled by the Supreme Court of the United States in Mugler v. Kansas, 123 U.S. 623, that we do not deem it necessary to do more than refer to that case.
It is seriously insisted, however, that to sustain this act would be to overrule S. v. Divine, 98 N.C. 778). We have carefully examined the opinion of the Chief Justice in that case, and find nothing in the question decided which conflicts with the conclusion at which we have arrived. The defendant was indicted under a statute containing very peculiar provisions, the only one of which it is necessary to be considered here is that declaring that when any live stock should be killed or injured by any car or engine running on a railroad in certain enumerated counties, such injury . . . should be a misdemeanor; that the president, superintendent, engineer, or conductor may be indicted therefor. It was further provided that when any
stock was killed or injured in such counties, it would be primafacie evidence of negligence. The defendant (superintendent of the road) was indicted under the statute. The jury found that the defendant was not upon the train or engine when the stock was injured, and in no way connected therewith. The eminent counsel for the defendant insisted, among other manifest reasons, that the statute was invalid for that it rendered the act criminal in one locality which was not so in another, and raised out of an act done by one employee a presumption of guilt against another employee who did not in any way participate in it. This Court sustained the objection. The distinction between the statute then under consideration and the one before us is manifest. The act which was made the prima (645)facie evidence of guilt in our case can be committed only by the person accused. The "keeping" made prima facie evidence must be the personal act of the defendant.
We have given to the questions discussed by the defendant's able and zealous counsel more than usual consideration. His Honor carefully guarded the right of the defendant to be tried by a jury of his county and convicted only when they were satisfied beyond a reasonable doubt upon the whole of the evidence that he kept liquor for sale, expressly stating to the jury that if the State had not thus satisfied them upon all the testimony, they should return a verdict of not guilty. It would seem that in the light of the testimony no other conclusion could have been reached.
No error.