John A. Fogleman, Justice.
The record in this case is stipulated. Appellant states (and the state agrees) that the sole issue on this appeal is the constitutionality of Section 1 of Act 68 of 1972. Upon a search of the person of appellant incidental to his arrest, 1200 milligrams of heroin were seized. The sole point relied upon for reversal by appellant was stated thus:
Section 1 of Act 68 of 1972 is unconstitutional in that it denied the defendant due process by permitting the jury to make a presumption upon, a fact not in evidence and that it violated his Fifth Amendment privilege against self-incrimination.
Appellant asks that his conviction be reversed and dismissed on the ground that he was convicted under an act that is unconstitutional under the Constitution of the United States.
The section of the statute in question reads:
Possession by any person of a quantity of Heroin in excess of 100 milligrams shall create a rebuttable presumption that such person possesses such Heroin with intent to deliver, provided however, the presumption provided for herein may be overcome by the submission of evidence sufficient to create a reasonable doubt that the person charged possessed Heroin with intent to deliver in violation of the law.
Appellant admits that a statutory inference may be valid if there is a valid connection between the fact proved and the ultimate fact to be established. Appellant’s principal reliance is placed upon Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969).
In approaching every question pertaining to the constitutionality of an act of the legislative branch, the judiciary must always keep certain basic principles in mind, all of which are essential to the welfare of the checks and balances provided by the American tripartite system of government. The first of these is that the legislature’s power is limited only by the state and federal constitutions. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85; Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279; McArthur v. Smallwood, 225 Ark. 328, 281 S.W. 2d 428; Gipson v. Ingram, 215 Ark. 812, 223 S.W. 2d 595. The next is that a presumption of constitutionality attends every such act. Redding v. State, 254 Ark. 317, 493 S.W. 2d 116; Bush v. Martineau, 174 Ark. 214, 295 S.W. 9. All doubt must be'resolved in favor of constitutionality. Red-ding v. State, supra; Bush v. Martineau, supra. Another principle is that if it is possible for the courts to so construe an act that it will meet the test of constitutionality, they not only may, but should and will, do so. Davis v. Schimmel, 252 Ark. 1201, 482 S.W. 2d 785; McLeod v. Santa Fe Transportation Co., 205 Ark. 225, 168 S.W. 2d 413. Another way of stating this elementary rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionality. Bush v. Martineau, supra. See also Redding v. State, supra.
The act can be construed so it does not run afoul of constitutional inhibitions. At the outset it should be noted that, unlike most of such statutes which have fallen bn the test of constitutionálity by the theory upon which appellant’s argument is based, our statute does not base the statutory presumption (or more properly inference, as will be presently shown) upon mere possession of the heroin. The quantity possessed is the criterion.
A presumption of law is not involved, and we are, definitely, not dealing with a conclusive presumption. The words “rebuttable presumption” are of sufficient flexibility to permit a construction which will effectuate the legislative intention, and we should so construe this act. See Redding v. State, supra. Dean Ralph C. Barnhart has treated the flexibility of the word “presumption” in his article “Use of Presumptions in Arkansas,” 4 Ark. L. Rev. 128 (1950), saying:
The term “presumption” is accurately used only to describe any of the instances where the courts will assume the existence of a presumed fact when the basic fact is established — in short, to describe the compelled inference situation. Sometimes the courts use the term “presumption” when they mean something else. Frequently it is used to describe a mere logical reference, that is, an inference which arises from the probative force of the evidence, and which the trier is justified in drawing from the facts proved. Such an assumption is aptly described as a justifiable inference, since the trier may draw the inference if it thinks that the evidence requires it, or it may refuse to do so if it does not. This being so, such an inference does not impose any of the procedural consequences of a presumption upon the opposite party.
* * *
The term “presumption” may be used merely to state that the proponent of an issue has made out a prima facie case, using prima facie in the sense of sufficient evidence to take the case to the jury, thus avoiding a directed verdict against him. At the point the proponent rests, his prima facie case is equally effective to avoid a directed verdict, whether founded upon a presumption or upon evidence without the aid of a presumption. With respect to the opponent, the situation is quite different. Unless he brings in evidence to rebut the presumption, the court will tell the jury to find that the presumed fact exists. If he introduces sufficient evidence to rebut the presumpdon, the proponent’s prima facie case is gone.
* * *
Presumptions may serve a number of purposes in trials of law suits, but the chief purposes usually suggested are (1) to serve some procedural function, such as allocating the burden of proof or of permitting recovery upon an assumption of a fact of which strict proof is impossible; (2) to promote some desirable social or legislative policy or result; and (3) to embody in a uniform rule of law what seems to be the common experience of mankind in identical situations.
Only recently Mr. Justice Powell pointed out in a footnote to the majority opinion in Barnes v. United States, — U.S. —, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973), that statutes creating criminal law inferences may be interpreted to preserve the trial court’s traditional discretion in determining whether there is sufficient evidence to go to the jury and in charging the jury, and cited Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970) and United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965), as holding the court’s discretion to be inherent in the use of common law inferences.
Free access — add to your briefcase to read the full text and ask questions with AI
John A. Fogleman, Justice.
The record in this case is stipulated. Appellant states (and the state agrees) that the sole issue on this appeal is the constitutionality of Section 1 of Act 68 of 1972. Upon a search of the person of appellant incidental to his arrest, 1200 milligrams of heroin were seized. The sole point relied upon for reversal by appellant was stated thus:
Section 1 of Act 68 of 1972 is unconstitutional in that it denied the defendant due process by permitting the jury to make a presumption upon, a fact not in evidence and that it violated his Fifth Amendment privilege against self-incrimination.
Appellant asks that his conviction be reversed and dismissed on the ground that he was convicted under an act that is unconstitutional under the Constitution of the United States.
The section of the statute in question reads:
Possession by any person of a quantity of Heroin in excess of 100 milligrams shall create a rebuttable presumption that such person possesses such Heroin with intent to deliver, provided however, the presumption provided for herein may be overcome by the submission of evidence sufficient to create a reasonable doubt that the person charged possessed Heroin with intent to deliver in violation of the law.
Appellant admits that a statutory inference may be valid if there is a valid connection between the fact proved and the ultimate fact to be established. Appellant’s principal reliance is placed upon Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969).
In approaching every question pertaining to the constitutionality of an act of the legislative branch, the judiciary must always keep certain basic principles in mind, all of which are essential to the welfare of the checks and balances provided by the American tripartite system of government. The first of these is that the legislature’s power is limited only by the state and federal constitutions. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85; Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279; McArthur v. Smallwood, 225 Ark. 328, 281 S.W. 2d 428; Gipson v. Ingram, 215 Ark. 812, 223 S.W. 2d 595. The next is that a presumption of constitutionality attends every such act. Redding v. State, 254 Ark. 317, 493 S.W. 2d 116; Bush v. Martineau, 174 Ark. 214, 295 S.W. 9. All doubt must be'resolved in favor of constitutionality. Red-ding v. State, supra; Bush v. Martineau, supra. Another principle is that if it is possible for the courts to so construe an act that it will meet the test of constitutionality, they not only may, but should and will, do so. Davis v. Schimmel, 252 Ark. 1201, 482 S.W. 2d 785; McLeod v. Santa Fe Transportation Co., 205 Ark. 225, 168 S.W. 2d 413. Another way of stating this elementary rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionality. Bush v. Martineau, supra. See also Redding v. State, supra.
The act can be construed so it does not run afoul of constitutional inhibitions. At the outset it should be noted that, unlike most of such statutes which have fallen bn the test of constitutionálity by the theory upon which appellant’s argument is based, our statute does not base the statutory presumption (or more properly inference, as will be presently shown) upon mere possession of the heroin. The quantity possessed is the criterion.
A presumption of law is not involved, and we are, definitely, not dealing with a conclusive presumption. The words “rebuttable presumption” are of sufficient flexibility to permit a construction which will effectuate the legislative intention, and we should so construe this act. See Redding v. State, supra. Dean Ralph C. Barnhart has treated the flexibility of the word “presumption” in his article “Use of Presumptions in Arkansas,” 4 Ark. L. Rev. 128 (1950), saying:
The term “presumption” is accurately used only to describe any of the instances where the courts will assume the existence of a presumed fact when the basic fact is established — in short, to describe the compelled inference situation. Sometimes the courts use the term “presumption” when they mean something else. Frequently it is used to describe a mere logical reference, that is, an inference which arises from the probative force of the evidence, and which the trier is justified in drawing from the facts proved. Such an assumption is aptly described as a justifiable inference, since the trier may draw the inference if it thinks that the evidence requires it, or it may refuse to do so if it does not. This being so, such an inference does not impose any of the procedural consequences of a presumption upon the opposite party.
* * *
The term “presumption” may be used merely to state that the proponent of an issue has made out a prima facie case, using prima facie in the sense of sufficient evidence to take the case to the jury, thus avoiding a directed verdict against him. At the point the proponent rests, his prima facie case is equally effective to avoid a directed verdict, whether founded upon a presumption or upon evidence without the aid of a presumption. With respect to the opponent, the situation is quite different. Unless he brings in evidence to rebut the presumption, the court will tell the jury to find that the presumed fact exists. If he introduces sufficient evidence to rebut the presumpdon, the proponent’s prima facie case is gone.
* * *
Presumptions may serve a number of purposes in trials of law suits, but the chief purposes usually suggested are (1) to serve some procedural function, such as allocating the burden of proof or of permitting recovery upon an assumption of a fact of which strict proof is impossible; (2) to promote some desirable social or legislative policy or result; and (3) to embody in a uniform rule of law what seems to be the common experience of mankind in identical situations.
Only recently Mr. Justice Powell pointed out in a footnote to the majority opinion in Barnes v. United States, — U.S. —, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973), that statutes creating criminal law inferences may be interpreted to preserve the trial court’s traditional discretion in determining whether there is sufficient evidence to go to the jury and in charging the jury, and cited Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970) and United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965), as holding the court’s discretion to be inherent in the use of common law inferences.
In its excellent brief, the state points out that the words “rebuttable presumption” are often taken to mean an inference which obtains until overthrown by proof.1 See, e.g., Beck v. K. C. Public Service, 48 S.W. 2d 213 (Mo. App. 1932). See also Dean Barnhart’s article, supra. The state appropriately concedes that the constitutionality of a statutorily created presumption rests in the rational connection between the proven fact and the presumed fact. We cannot say that the connection here is not rational. Clearly, the words of the statute made the “presumption” the kind productive of a prima facie case by providing that the “presumption” may be overcome by submission of evidence to create a reasonable doubt that the person charged possessed a controlled substance with intent to deliver in violation of Act 590 of 1971.
Passing now to the rationality of the inference that possession of 100 milligrams, or more, of heroin creates such a “rebuttable presumption,” we find absolutely nothing in this record to indicate that there is no such connection between the possession of such a quantity of heroin and the intent of the possessor to deliver it. Neither this court nor the trial court was asked to take judicial notice of the amounts or quantities which a person might possess for other uses and purposes. It is at least a matter of extreme doubt that this is a matter of which the courts could be asked to take judicial notice. At any rate, in the absence of evidence contradictory of the legislative declaration, or showing it not to be upon a rational basis, we cannot strike down the fact-finding stated in this act. To do so would usurp a legislative function.
Fact-finding in the judicial department is based upon evidence presented in an adversary proceeding. Legislative fact-finding is based upon an independent, investigatory process, which may be conducted by that branch of government in various ways. Our General Assembly has devoted much time in recent years to the study of the grave problems of our society arising out of the use and distribution of various types of drugs.2 That body has found that possession of various drugs in excess of the quantities enumerated in Section 1, Act 68 of 1972, bears a reasonable relationship with an intent to deliver them. We should not overthrow the finding or hold it to be irrational unless we are furnished with better and more persuasive information than is in the record before us or is of such common knowledge that no evidence should be required. We do not know just what fact-finding processes were utilized by the General Assembly before enacting Act 68 of 1972. Out lack of information on this score does not license this court to say that the legislature acted arbitrarily. We cannot overturn the legislative fact-finding unless its action can be said to be arbitrary. Stanley v. Gates, 179 Ark. 886, 19 S.W. 2d 1000; Gentry v. Harrison, 194 Ark. 916, 110 S.W. 2d 497; Jumper v. McCollum, 179 Ark. 837, 18 S.W. 2d 359; Chicago Title and Trust Company v. Hagler Special School District, 178 Ark. 443, 12 S.W. 2d 881. Expressions of this rule are well put in at least two of our decisions. In Greene County v. Clay County, 135 Ark. 301, 205 S.W. 709, we said:
* * * where a power is committed to the Legislature to exercise under a given state of facts it is necessarily implied that the Legislature must first ascertain the existence of those facts, and that its determination is conclusive upon the courts. Any other rule would lead to the utmost confusion in the efforts of the courts to review legislative action upon the ascertainment of the existence of facts which may or may not appear to be conclusive. The only sound rule is, we think, to say that when there is a question of fact to be ascertained outside of those things which both courts and lawmakers must take cognizance of, the courts cannot inquire into those facts, for the purpose of overturning legislative action.
In Hill v. Echols, 140 Ark. 474, 215 S.W. 882, we added:
It is the duty of the courts to respect legislative ascertainment of facts upon which laws are based, unless such determination is obviously erroneous, and there may be facts and existing circumstances which we áre not at liberty to inquire into for the purpose of reviewing the decision of the lawmakers.
Even in Leary v. United States, 395 U.S. 6, 23 L. Ed. 57, 89 S. Ct. 1532 (1969), cited by appellant, the United States Supreme Court repeated its recognition in United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965), that, in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded legislative capacity to amass the stuff . of actual experience and cull conclusions from it. There was, and is, no burden on the state to make a showing of the constitutionality of this provision. Appellant did bear such a burden, but has not met it.
We can readily agree with the United States Supreme Court that the declaration that every bank insolvency is presumed to result from fraud is mere legislative fiat, i.e., an arbitrary order or decree, because it should have been common knowledge that many bank insolvencies resulted, not from fraud, but from unpredictable economic conditions, and that, even when bank failures resulted from fraud, all directors were seldom involved. See Manley v. Georgia, 279 U.S. 1, 49 S. Ct. 215, 73 L. Ed. 575 (1929). We further agree with that court’s holding that there is no rational basis to support a presumption that a firearm or ammunition possessed by a convicted felon or a fugitive from justice has been shipped, transported or received in interstate commerce. See Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943). The basis for a rational connection between the fact proved and that to be presumed was obviously rather strained.3 We can also accept the idea expressed in United States v. Romano, 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965), that the declaration that mere presence at an illicit liquor still has a rational connection with its possession and control is somewhat arbitrary. But quite a different result would have been reached by that court had the presence been made prima facie evidence of operational activities. We can accept the idea that it is arbitrary to say that marihuana being transported in this country was possessed with knowledge that it was illegally imported. In Leary v. United States, supra, however, the court, after reviewing the legislative record on the subject, held that statute invalid because there was no rational basis upon which to base any inference that marihuana possessors could, did, or should “know” that their marihuana was illegally imported. Indications from that record were that it would have been virtually impossible for legislative fact finders to arrive at the conclusion that most of the marihuana transported in this country was possessed with knowledge that it was illegally imported.
We cannot accept the Indiana Supreme Court’s rationalization in cases such as Powers v. State, 204 Ind. 472, 184 N.E. 549 (1935) and Walter v. State, 208 Ind. 231, 195 N.E. 268, 98 A. L. R. 607 (1935), that before a proven fact can constitute prima facie evidence of a fact, the first fact must necessarily be sufficient, of itself, to sustain a conviction.
The general rule, apparently adopted by an overwhelming majority of jurisdictions, is succinctly stated at 16 C.J.S. 528, § 128, as follows:
The legislature is also authorized to establish presumptions, and the effect to be given thereto, and it may declare what shall be prima facie evidence, in both civil and criminal proceedings, provided the facts to be proved fairly relate tp, and have a natural connection with, the proposition to be inferred therefrom, and the statute furnishes some guide or test stating the facts necessary to constitute the prima facie case, leaving it to the court to decide whether such facts have been proved. The legislature may also regulate the burden of proof, and the extent thereof required. Indeed, it has been broadly stated that legislation may validly prescribe the weight to be given to evidence, but other decisions hold that the legislature does not possess the power to declare what weight the court shall give to certain evidence.
Examination of the footnotes to the above text indicates that Indiana may be virtually alone in its position. We have spoken on the subject ourselves in a manner indicative of our rejection of the extreme Indiana position. In Linville v. State, 129 Ark. 36, 195 S.W. 382, we found no constitutional inhibition against legislative relaxation of the common law rule of evidence requiring the state to prove the material allegations of a criminal charge beyond a reasonable doubt, even though we did not find any encroachment upon that rule. In that case, the statute provided that in abandonment and non-support cases, no evidence should be required to prove that the accused husband was married to the wife, or is the father of the children involved, other than would be necessary to prove these facts in a civil action and approved an instruction that advised the jury that it was not necessary to find beyond a reasonable doubt that the man and woman were married but that these facts might be found upon a preponderance of the evidence. But more pertinently, we have sustained a statute providing that the acceptance of payments by a contractor on a contract without discharging a properly filed laborer’s or materialman’s lien within 10 days after receipt of payment or of notice of the lien was prima facie evidence of intent to defraud in a prosecution for the crime of failure to discharge mechanics’ and materialmen’s liens in violation of Ark. Stat. Ann. § 51-640 (Supp. 1965).4 We said in State v. Jacks, 245 Ark. 77, 418 S.W. 2d 622:
The general rule, well established in many jurisdictions, including the United States Supreme Court, is well stated in O’Neill v. United States, 19 F. 2d 322 (8 Cir., 1927):
“The general principle is well recognized that even in criminal prosecutions, Congress or a state Legislature may with certain limitations enact that when certain facts have been proved they shall be prima facie evidence of the existence of the main fact in question. * * * The limitations are these: There must be some rational connection between the fact proved and the ultimate fact presumed; the inference of the existence of the ultimate fact from proof of the other fact must not be so unreasonable or unnatural as to be a purely arbitrary mandate; and the accused must not be deprived of a proper opportunity to present his defense to the main fact so presumed and have the case submitted upon all the evidence to the jury for its decision.”
The case at bar clearly cannot be classified as a peonage statute. It is more comparable to our law making it an offense to execute an overdraft which likewise contains the presumption clause. Ark. Stat. Ann. §§ 67-720 — 24 (Repl. 1966). This court said in Edens v. State, 235 Ark. 284, 357 S.W. 2d 641 (1962) that the only effect of the presumption clause in § 67-722 is to place the burden on the defendant to go forward with the case. The burden of proof is not shifted.
Further protection is afforded Jacks by the holding in Reno and Stark v. State, 241 Ark. 127, 406 S.W. 2d 372 (1966), where we held that it is improper for the trial court to advise the jury of the presumption provision. Reno and Stark involved the charge of failure to discharge materialmen’s liens.
We hold that the presumption clause has a rational connection with the balance of our statutes governing mechanics’ and materialmen’s liens. It is not arbitrary. The accused is not deprived of opportunity to present his defense on the main fact. The presumption of innocence remains with the accused and the burden of proof on the whole case is on the State. The accused is merely required to go forward with his proof when the lien is established, payment is proven, and the failure to satisfy the lien is shown.
We cannot agree with the implied equation of the statutory declaration with comments upon the failure of an accused to testify, or the argument that the statute requires an accused to prove his innocence, and violates his privilege against self-incrimination. As pointed out in Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970), the appropriate evidentiary rebuttal might come through the testimony of others than the accused himself. It should be noted that the statutory presumption in that case that Turner purchased, sold, dispensed, or distributed a narcotic drug (cocaine) not in or from the original package, if found in possession of the drug without the appropriate tax stamps, was overturned upon the basis that bare possession was obviously an insufficient predicate for a conclusion that Turner was either dispensing or distributing and that there was a reasonable possibility that Turner did not purchase the cocaine, but either stole it or purchased it from a thief in a stamped package.
The United States Supreme Court has again, on June 18, 1975, flatly rejected, upon the authority of United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965), the argument that a properly worded instruction on a permissive inference constitutes a comment on the defendant’s failure to testify. Barnes v. United States, — U.S. —, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973).
Although, according to the stipulated record, the question of constitutionality arose upon appellant’s objection to a jury instruction in the language of the statute, the only objection made went to the question of constitutionality of the statute. No mention or hint of the instruction’s being a comment on the evidence appears anywhere in the record until appellant’s reply brief was filed. There, appellant invokes Article 7, Section 23, of the Constitution of Arkansas by asserting that to adopt the state’s conclusion that the act is constitutional would be contrary to that constitutional provision. A complete answer to that particular argument is that there is no language whatever in the statute that requires the court to instruct the jury as to the impact or effect of proof of possession of more than 100 milligrams of heroin. Consequently, the section of the act in question cannot possibly be unconstitutional because of conflict with that section of our state constitution.
The question whether the instruction quoting the statute, insofar as it related to possession of heroin, violates Article 7, Section 23, is not properly before this court, even if the recited argument, advanced for the first time in appellant’s reply brief, could be said to raise it. Yellow Cab Co. v. Sanders, 250 Ark. 418, 465 S.W. 2d 324; Ryall v. Waterworks Improvement Dist. No. 3, 247 Ark. 739, 447 S.W. 2d 341. It may well be that the instruction would fall upon the authority of Lott v. State, 223 Ark. 841, 268 S.W. 2d 891, in which it was held that telling the jury that an inference of gtiilt of larceny could be based upon an accused’s possession of recently stolen property was prohibited as a comment on the evidence.5 We reserve that question for another day when the state shall have had an opportunity to state and advocate its position thereon.
On the record presented, we hold that Section 1, Act 68 of 1972, is constitutional and affirm the judgment.
Mr. Jus dee Byrd dissents.