§ 1053. In conclusion,- the discussions of this chapter might be easily extended; but, as every practitioner will and 626, 35 N. W. R. 652; S. v. Gregory is that it is unlawful, and this pre(Iowa), 82 N. W. R. 335.] Kansas. S. v. Crow, 53 Kan. 669, 37 Pac. R. 170; S. v. Nye, 32 Kan. 201, 4 Pac. R. 134; S. v. Kulinke, 26 Kan. 405. Maine. The burden to prove the license is on the defendant. S. v. Woodward, 34 Me. 293; S. v. Crowell, 25 Me. 171. Massachusetts.- Except as statutes have provided otherwise, the state must show that the defendant had no license. Com. v. Bolkom, 3 Pick. 281. The common yet not exclusive proof was its absence from the records or memoranda of the licensing board. Com. v. Tuttle, 12 Cush. 502; Com. v. Kimball, 7 Met. 304. But the burden has been changed to the defendant by statutes applicable to most cases, not all. Com. v. Lahy, 8 Gray, 459; Com. v. Kelly, 10 Cush. 69; Trott v. Irish, 1 Allen, 481; Com. v. Keenan, 11 Allen, 262; Com. v. Put nam, 4 Gray, 16; Com. v. Cashman, 8 Allen. 580; Com. v. Leo, 110 Mass. 414; Com. v. Curran, 119 Mass. 206; [Com. v. Molten, 142 Mass. 270, 8 N. E. R. 428; Com. v. Towle, 138 Mass. 492.] sumption makes out & case of unlawful sale, unless it is overcome by proof of license. Bishop, Stat. Crimes, § 1051." Berry, J., in S. v. Schmail, 25 Minn. 370, 371; [S. v. Ahern, 54 Minn. 195, 55 N. W. R. 959.] Mississippi. - On an indictment for selling to a slave, "without the permission of the owner, master or overseer," the prosecution, it was held, must affirmatively establish the want of permission. "We know of no exception to the rule," said Smith, J., "that whatever it is material to aver in an indictment it is necessary to prove." McGuire v. S., 13 Sm. & M. 257, 259. Afterward, on an indictment for ordinary selling without license, the court held that it was for the defendant to produce the license if he had one, not for the state to prove the want of it. "The rule is,” said Handy, J., "that, when a fact is peculiarly within the knowledge of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence, or of acting according to law, will not render it incumbent on the other side to prove the negative." Easterling v. S., 35 Miss. 210; Thomas v. S., 37 Miss. 353; Pond v. S., 47 Miss. 39. See North Carolina for a reconciliation of the apparent discrepancy in these decisions. Missouri.-It devolves on the defendant, if he has a license, to produce it. Schmidt v. S., 14 Mo. 137; S. v. Lipscomb, 52 Mo. 32; S. v. Edwards, 60 Mo. 490; [S. v. Durkem, 23 Mo. Ap. 387; S. v. O'Connor, 65 Mo. Ap. 324; S. v. Moore, 107 Mo. 78.] Nebraska.- Hamberger v. S. (Neb.), 66 N. W. R. 23. New Hampshire.-The decisions on this question in this state furnish an instance of the unhappily common should have before him the statutes and adjudications of his own state, it is believed that the foregoing will abundantly suffice. course of things in our courts, the avoidance whereof by the present writer in his discussions has enabled him to render his books useful in correcting judicial errors and settling conflicts. The matter is explained in various places, and particularly in Crim. Law (7th ed.), “Introduction." The doctrine which the elucidations in the text show to be just was first laid down in a series of decisions; namely, that the burden devolved, not on the state to prove the defendant's want of authority, but on him to produce it. S. v. Foster, 3 Fost. (N. H.)348, [55 Am. D. 191;] S. v. Shaw, 35 N. H. 217; S. v. Simons, 17 N. H. 83; S. v. McGlynn, 34 N. H. 422. And in the civil action by one seeking to recover the price of liquors sold, he was required affirmatively to prove his authority to sell them. Bliss v. Brainard, 41 N. H. 256. Afterward the court discovered that the reasons which had been judicially assigned for this doctrine were unsound; hence, not inquiring whether it did not admit of support by sound reasons, leaped to the conclusion that, of course, it was wrong, dividing on the further question whether the rule of stare decisis would permit its reversal. To quote: "In Lisbon v. Lyman, 49 N. H. 553, 568-582, the court were unanimously of opinion that the burden of proof, on the question of payment of all taxes duly as sessed, was not shifted from the plaintiff to the defendant by any rule or supposed rule in relation to a subject-matter peculiarly within the knowledge of one of the parties. It was held (p. 582) that, if there was any such rule operating as a rule of law to shift the burden of proof, it was not applicable to that case; because it did not appear that the proof in relation to the assessment and payment of taxes was so peculiarly or exclusively in the power of the defendant as to require him to produce it,-a reason which (as was shown in that case) would forbid the applica tion of the rule to cases like the present. It was there shown that, if there is any such rule, it has often been misapplied, and that its misapplication ought not to be extended. For reasons there stated, we are all of opinion that its application to cases like the present, as a matter of legal principle, is erroneous." S. v. Perkins, 53 N. H. 435. North Carolina.- The prosecutor need not prove the want of a license, but the defendant, if he has one, must produce it. S. v. Morrison, 3 Dev. 299. Yet under a statute which made penal the selling of liquor to a slave without the master's written permission (see Mississippi, in this note), the prosecutor was required to prove the want of permission. It was deemed that the former case proceeded on the ground of "necessity," or the "great difficulty in procuring the proof" of there being no license. But here the master or his representative could easily be called in negation of the giving of a permit. S. v. Evans, 5 Jones (N. C.), 250, 251, 252. And see S. v. Woodly, 2 Jones (N. C.), 276. See ante, Alabama and Mississippi, in this note. Ohio.-On 'an information under the statute to prevent adulterations, the prosecutor must give some evidence to the negative averment that the liquor sold by the defendant had not been inspected. Cheadle v. S., 4 Ohio St. 477. Oregon. The defendant must produce his license. S. v. Cutting, 3 Oreg. 260. South Carolina.- It is for the indicted person to prove that he had a license. Geuing v. S., 1 McCord, 573. England.-Ona prosecution against a licensed victualer, for selling liquors on a Sunday otherwise than to travelers, the burden of proving the Texas-Lucia v. S. (Tex. Cr. R.), case not to be within the exception 33 S. W. R. 359. Vermont.-S. v. Milty, 57 Vt. 543. Wisconsin. Some presumptive evidence must be given that the defendant had no license, before he is required to prove the contrary. Mehan v. S., 7 Wis. 670. 692 is on the informer. Taylor v. Humphries, 17 C. B. (N. S.) 539. And, on an indictment for killing deer in an inclosed park, without the owner's leave, the prosecutor must show that he did not give permission. Rex v. Rogers, 2 Camp. 654. CHAPTER LVII. KEEPING INTOXICATING LIQUOR FOR UNLAWFUL SALE. § 1054. At common law. The mere having of a thing, while not using it, with the intent to commit therewith a crime, even a felony, is not indictable at the common law. Hence, a fortiori, it is not a common-law offense to be in possession of liquors with the intent to commit the misdemeanor of selling them contrary to the regulations of a statute. But — § 1055. Under statutes.-Some of the more recent statutes make it punishable, most of them providing also for the forfeiture of the liquors, to have them in possession with the intent unlawfully to sell them. And Transporting liquors,-sold or to be sold unlawfully, is in some of the states put on the like footing with keeping them for unlawful sale." § 1056. Constitutional.-These statutes, when not incumbered by objectionable details, are clearly within the legislative power conferred by most or all of our constitutions. Yet, in 1 Crim. Law, I, § 204. Doherty, 116 Mass. 413; Com. v. Mc 2 Crim. Law, I, §§ 657-659, 759-761; Laughlin, 108 Mass. 477; [S. v. Rhodes, ante, § 1029. 3 Ante, §§ 988, 993, 994; S. v. Kaler, 56 Me. 88; Com. v. O'Reilly, 116 Mass. 15; [S. v. Arlan, 71 Iowa, 216, 32 N. W. R. 267; S. v. McEvoy, 69 Iowa, 63, 28 N. W. R. 437; S. v. Intoxicating Liquors, 64 Iowa, 300, 20 N. W. R. 445; S. v. Therrien, 86 Me. 144, 29 Atl. R. 1117; Com. v. Ryan, 160 Mass. 172, 35 N. E. R. 673.] Com. Commeskey, 13 Allen, 585; Com. v. Bentley, 97 Mass. 551; Mason v. Lathrop, 7 Gray, 354; S. v. Smith, 61 Me. 386; Jones v. Root, 6 Gray, 435; Kennedy v. Favor, 14 Gray, 200; Com. v. Kenney, 115 Mass. 149; Com. v. McCluskey, 116 Mass. 64; S. v. Grames. 68 Me. 418; Com. v. 90 Iowa, 496, 58 N. W. R. 887, 24 L. R. A. 245; S. v. Moffitt, 73 Me. 278; Com. v. Brown, 154 Mass. 55, 27 N. E. R. 776, 13 L. R. A. 195; S. v. Goss, 59 Vt. 266, 9 Atl. R. 829; Com. v. Currier, 164 Mass. 544, 42 N. E. R. 96; S. v. Campbell, 76 Iowa, 122, 40 N. W. R. 100; S. v. Rhodes, 90 Iowa, 496, 58 N. W. R. 887, 24 L. R. A. 245, reversed by Rhodes v. Iowa, 170 U. S. 412.] 5 Jones v. Root, 6 Gray, 435; Mason v. Lothrop, 7 Gray, 354; Lincoln v. Smith, 27 Vt. 328; S. v. Prescott, 27 Vt. 194; Gray v. Kimball, 42 Me. 299; ante, §§ 993, 994; [Jordan v. Cir. Ct., 69 Iowa, 177; McClane v. Leicht, 69 Iowa, 411, 29 N. W. R. 327; McLane v. Brown, 70 Iowa, 752, 30 N. W. R. Michigan, the search-warrant clause of a former act of this sort was adjudged void, because it did not require any notice to the accused, or even provide for informing him when, where or before whom the warrant was to be returned;' and something like this was held under former statutes in Rhode Island,? Massachusetts and some of the other states. These decisions occurred in the early period of this form of temperance legislation, and they were pronounced under great public excitement and pressure upon the courts. Still, beyond doubt and most plainly, they were right if the statutes were correctly interpreted. But were the questions to be freshly argued, ably and on just grounds, the conclusion would probably be reached by most enlightened judges that the constitutional, statutory and common-law provisions, all of which are equally laws," should be interpreted together, as commanding the notice. which the courts justly said was required. Indeed, such is the doctrine established under other statutes by a mass of judicial authority overwhelming. The rules to determine when the forfeiture in rem is permissible are explained in "Criminal Law."8 § 1057. The procedure - under these enactments differs so much in our states that a detailed discussion of it here is not deemed advisable. Yet a reference to leading cases explaining 478; Craig v. Florenz, 71 Iowa, 761, 32 N. W. R. 356; S. v. Jordan, 72 Iowa, 377, 34 N. W. R. 285; Pearson v. Distill. Co., 72 Iowa, 348, 34 N. W. R. 1; Connolly v Scarr, 72 Iowa, 223, 33 N. W. R. 641; S. v. Le Clair, 86 Me. 522, 30 Atl. R. 7; Com. v. Intoxicating Liquors, 172 Mass. 311; Com. v. Intoxicating Liquors, 163 Mass. 42, 39 N. E. R. 348; Com. v. Brothers, 158 Mass. 200, 33 N. E. R. 386.] 1 Hibbard v. P., 4 Mich. 125, Green, J., observing: "It is said that the proceedings under the liquor law may be so conducted, consistently with its provisions, as to secure the person whose property is seized all his constitutional rights. If this is possible, that is not enough. The law must afford to the accused the means of demanding and enforcing his constitutional rights, and if it authorizes a course of procedure which could deprive him of them it is void. It is not to be left to the discretion of prosecutors or magistrates to adopt a course of procedure which may or may not be in conformity with the requirements of the constitution, as they may elect." Pages 130, 131. 2 S. v. Snow, 3 R. I. 64; Greene v. James, 2 Curt. C. C. 187. 3 Fisher v. McGirr, 1 Gray, 1, [61 Am. D. 381.] Ante, §§ 992, 993. 6 Ante, §§ 86, 89, 90, 1136-121, 123. 8 Crim. Law, I, §§ 816–835. |