have stressed it, is an entire perversion of the protection guaranteed to him. It is true it is his right to produce evidence, but it is equally true that he cannot be compelled to do so, either directly or indirectly.

If a part of the state's case may be conclusively established in this way, so may the whole of it. If the inference from possession to illegality is to be drawn as matter of law because there is no other evidence, so might the legislature provide that possession shall be conclusively shown by the testimony of one witness, if there be no other evidence. In such a situation the jury would be told that the testimony required that they return a verdict of guilty. If in the present case the opportunity to take away the application of the statute by producing evidence satisfies the defendant's constitutional demands, so it would in the supposed case.

It is his constitutional right not to produce evidence. Were it not for the array of cases denying the substance of this privilege, it would seem incredible that anyone could suppose that it could be invaded by any legislation based upon a power to penalize the exercise of the right. Giving to him the right to produce evidence, or not, is no substitute for his right not to produce it. former is a privilege now generally conferred. But the latter is a fundamental right which neither legislatures nor courts are at liberty to impair. Conferring the privilege to produce cannot limit or in any way affect the constitutional right not to produce.

The

It may be that under certain circumstances an inference of fact can be permitted to be drawn from the defendant's failure to produce evidence, excluding any inference as to his own testimony. Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711 (Shaw, Ch. J.); State v. Grebe, 17 Kan. 458 (Brewer, J.). That no inference can be drawn from his own failure to testify has been generally recognized to be the law. 3 Wigmore, Ev. § 272. The denial of

the latter rule in a few states (State v. Bartlett, 55 Me. 200; State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422; Parker v. State, 61 N. J. L. 308, 39 Atl. 651) is based upon the logical inference to be drawn from such conduct. In none of the cases is any reasoning advanced showing that the conclusion reached does not compel the defendant to "furnish evidence against himself." Stated bluntly, those decisions come to this,-his exercise of his constitutional right not to testify is evidence of guilt.

It is not necessary to consider whether such a limitation upon the constitutional provision can be upheld in this state. Nor is it necessary to decide whether the authorities above referred to, holding that an inference may be drawn from the defendant's failure to produce other evidence, could be followed here. If it be conceded for the sake of the argument that such a distinction could be made, or even if it were conceded that an inference could be drawn from his own failure to testify, it would not affect the result in this case..

If such an inference were permitted, it could only be one of fact. It would still be for the jury to say whether they would or would not draw it. As before stated, any attempt to direct how much or how little weight should be given to such an evidentiary situation would be a clear invasion of the powers committed to the department of government having exclusive jurisdiction over such matters. Neither the power nor the duties of courts can be lessened in this way.

Construed as the state claims it should be, the provision that possession shall be prima facie evidence of illegality cannot be sustained as a valid exercise of legislative power.

But it is suggested that such a result may be arrived at by construing the section, taken as a whole, to mean that unexplained possession is an offense. It may be doubted whether such a statute would stand

any better than one which attempted by more direct means to compel the defendant to produce evidence or else stand convicted without evidence. But that question does not arise here, for it is apparent that if the legislature had understood that they made unexplained possession an offense, they would not have considered it necessary to provide a statutory explanation of possession in aid of a conviction. If possession alone or unexplained were the offense, there would be no occasion for an added presumption or inference that unexplained possession was illegal. It is entirely clear that the legislative purpose expressed by the last clause of the section was to provide a rule of procedure or of evidence. It was not then defining the crime.

It is also argued that the cases holding that, where one claims exemption from a statutory penalty by reason of an exception in the statute, it is not incumbent upon the state to prove in the first instance that the defendant is not within the exception (State v. Perkins, 53 N. H. 435, and cases cited; State v. Keggon, 55 N. H. 19, 3 Am. Crim. Rep. 285), demonstrate that the construction contended for by the state would not violate the defendant's rights (Com. v. Thurlow, 24 Pick. 376; Com. v. Kelly, 10 Cush. 69; State v. Rosasco, 103 Or. 343, 205 Pac. 290; People v. Williams, 61 Colo. 11, 155 Pac. 323). So far as criminal procedure is concerned, those decisions have here been confined strictly to cases that, were exceptions to a general rule, More than once the courts have been unanimous in the opinion that the cases were wrong in principle, and have sustained them only upon the grounds of authority and convenience. Lisbon v. Lyman, 49 N. H. 553, 577; State v. Perkins, supra; State v. Keggon, supra. The convenience and reasonableness of the rule, and the justice of the principle upon which it is based, are

sufficient grounds for its retention in civil procedure under proper limitations. Spilene v. Salmon Falls Mfg. Co. 79 N. H. 326, 108 Atl. 808. They are wholly insufficient to warrant the use of the rule to impair the constitutional rights of a person charged with crime.

Is the statute constitutional if it means merely that possession shall be evidence for the jury to consider upon the issue of illegality? There is no vested right in any rule of evidence. Rich v. Flanders, 39 N. H. 304; 1 Wigmore, Ev. § 7. Whether the legislature may declare that fact A shall be evidence of fact B, when there is no logical connection between the two, may well be doubted. See Opinion of Justices, 208 Mass. 619, 34 L.R.A. (N.S.) 771, 94 N. E. 1044. But where there is such connection, even though it be slight, there seems to be no satisfactory ground upon which to claim that the statute exceeds the general legislative power to declare what shall be evidence. In the present state of our statute law, it is not a forced or entirely illogical inference to conclude that possession of intoxicating liquor is illegal. People v. Cannon, 139 N. Y. 32, 36 Am. St. Rep. 668, 34 N. E. 759.

As the statute could not be sustained if given the broad meaning contended for by the state, it is to be presumed that it was the legislative intent to use the language of the act in the restricted and constitutional sense. "Prima facie evidence," as here used, means evidence to be considered by the jury. It fol- struction-maklows from this con- ing prima facie clusion that the exception to the refusal to direct a verdict for the defendant because the statute is unconstitutional must be overruled, and that the exception to the instructions given to the jury must be sustained.

New trial.

All concur.

Statute-con

evidence.

Statutes declaring what shall be presumptive or prima facie evidence. of any fact have been held by the weight of authority to be constitutional and valid unqualifiedly in civil cases, and in criminal cases with certain qualifications. 10 R. C. L. 864.

The evidentiary facts must be related to and have a tendency to establish the fact of which they are declared to be prima facie evidence. Ibid.

There are numerous cases sustaining the validity of statutes making the possession of intoxicating liquor prima facie evidence of violation of law.

V.

Alabama.-Southern Exp. Co. Whittle (1915) 194 Ala. 406, L.R.A. 1916C, 278, 69 So. 652; Ogden v. State (1916) 15 Ala. App. 9, 72 So. 587; Dees v. State (1917) 16 Ala. App. 97, 75 So. 645. See also Fitzpatrick v. State (1910) 169 Ala. 1, 53 So. 1021; Toole v. State (1910) 170 Ala. 41, 54 So. 195; Ex parte Woodward (1913) 181 Ala. 97, 61 So. 295; Hauser v. State (1912) 6 Ala. App. 31, 60 So. 549. Connecticut.-State v. Cunningham (1856) 25 Conn. 195 (presumptive evidence); State v. Wheeler (1856) 25 Conn. 290 (the same).

Illinois. People v. Beck (1922) 305 Ill. 595, 137 N. E. 454.

Iowa.-State v. Jarvis (1917) Iowa,, 165 N. W. 61 (presumptive evidence). See also Santo v. State (1856) 2 Iowa, 165, 63 Am. Dec. 487; State v. Intoxicating Liquors (1899) 109 Iowa, 145, 80 N. W. 230.

Kansas. State v. Sheppard (1902) 64 Kan. 451, 67 Pac. 870.

Mississippi.-See Gillespie v. State (1910) 96 Miss. 856, 51 So. 811, 926.

Montana.-State v. Lewis (1923) Mont. -, 216 Pac. 337.

Nebraska.-Durfee v. State (1897) 53 Neb. 214, 93 N. W. 676 (presumptive evidence); Parsons

V. State

(1901) 61 Neb. 244, 84 N. W. 65 (the same); Yeoman v. State (1908) 81

Neb. 244, 115 N. W. 784, 117 N. W. 997 (the same).

New Hampshire. STATE V. LAPOINTE (reported herewith) ante, 1212. See also State v. Desmarais (1924) - N. H. —, 123 Atl. 582. North Carolina.-State v. Barrett (1905) 138 N. C. 630, 1 L.R.A.(N.S.) 626, 50 S. E. 506; State v. Wilkerson (1913) 164 N. C. 431, 79 S. E. 888; State v. Russell (1913) 164 N. C. 482, 80 S. E. 66; State v. Randall (1915) 170 N. C. 757, Ann. Cas. 1918A, 438, 87 S. E. 227. See also State v. McIntyre (1905) 139 N. C. 599, 52 S. E. 63.

Oklahoma.-Caffee v. State (1915) 11 Okla. Crim. Rep. 485, 148 Pac. 680; Sellers v. State (1915) 11 Okla. Crim. Rep. 588, 149 Pac. 1071.

Oregon.-See State v. Harris (1921) 101 Or. 410, 200 Pac. 926.

Rhode Island.-See State v. Higgins (1881) 13 R. I. 330; State v. Mellor (1882) 13 R. I. 666.

South Dakota.-State v. Humphrey (1920) 42 S. D. 512, 176 N. W. 39. Virginia.-Pine v. Com. (1917) 121 Va. 812, 93 S. E. 652.

Washington.-State v. Gray (1917) 98 Wash. 279, 167 Pac. 951; State v. Blackwell (1918) 103 Wash. 337, 174 Pac. 646.

West Virginia.-State v. Tincher (1917) 81 W. Va. 441, 94 S. E. 503.

In Ex parte Woodward (1913) 181 Ala. 97, 61 So. 295, the court sustained 'the constitutionality of the section of the Alabama statute which provided that "the keeping of liquors or beverages that are prohibited by the law of the state to be manufactured, sold, or otherwise disposed of, in any building not used exclusively for a dwelling, shall be prima facie evidence that they are kept for sale or with the intent to sell the same, contrary to law." See also, as to an ordinance, Borok v. Birmingham (1914) 191 Ala. 75, 67 So. 389, Ann. Cas. 1916C, 1061. Similarly, in Fitzpatrick v. State (1910)

169 Ala. 1, 53 So. 1021, the court sustained an act providing that the storing of any of the prohibited liquors in any building not used exclusively as a dwelling house shall be prima facie evidence that they were kept for an unlawful purpose.

So, in Santo v. State (1856) 2 Iowa, 165, 63 Am. Dec. 487, the court affirmed the power of the legislature to make the keeping of spirits in certain circumstances, or in any but certain circumstances, presumptive evidence of keeping with intent to sell.

In State v. Higgins (R. I.) supra, the court sustained a statute providing that, in prosecutions for the keep ing of nuisances, "evidence of the sale or keeping of intoxicating liquors for sale, in any building, place, or tenement shall be prima facie evidence that the sale or keeping is illegal," and in State v. Mellor (R. I.) supra, the court sustained a statute declaring that "evidence of the sale, or keeping of intoxicating liquors for sale, in any building, place, or tenement, shall be evidence that the sale or keeping is illegal, and that such premises are nuisances," observing that it was for the jury, not for the court, to say whether or not the inference or presumption was sufficient to prove the fact for the proof of which it is adduced.

It is within the constitutional power of the legislature to declare the possession of intoxicating liquor, except in a private dwelling unconnected with a place of business, by a person not legally authorized to sell such liquor, to be prima facie evidence of its possession for purposes of illegal sale. State v. Sheppard (1902) 64 Kan. 451, 67 Pac. 870.

The reported case (STATE v. LAPOINTE, ante, 1212) sustains a statute making the possession of intoxicating liquor prima facie evidence of a violation of the law, but, construing the expression to mean evidence to be considered by the jury, it reverses a conviction on the ground that it was error to charge the jury that, if they found possession was proved, they must also find that it was illegal, there

being no evidence upon the latter question.

In State v. Desmarais (1924) N. H., 123 Atl. 582, it was held that the statute does not make possession of intoxicating liquor conclusive evidence of violation of law.

In State v. Cunningham (1856) 25 Conn. 195, the court sustained the constitutionality of a statute providing that proof of the finding of the liquor in the defendant's possession (except in certain places) "shall be received and acted upon by the court as presumptive evidence that such liquor was kept or held for sale, contrary to the provisions of the act;" but the conviction was reversed on the ground, apparently, that the jury, perhaps, understood that the question of intent was withdrawn from them by the charge, which was that the law made the finding sufficient evidence of the intent of the prisoner to sell the same in violation of the statute, unless such evidence is rebutted by evidence going to show a different intent, and, in the absence of any explanations of the purpose for which the same was so kept in said store, the jury may lawfully found a conviction thereon.

A statute making possession of more than 1 quart of liquor prima facie evidence of intent to violate the statute against illegal sales is not unconstitutional as invading the province of the judiciary, and depriving accused of the presumption of innocence, or as making prima facie evidence of guilt a fact which has no relation to, or does not tend to prove, the criminal act. Nor does such statute deny the equal protection of the laws to the citizens of the county to which it applies. State v. Barrett (1905) 138 N. C. 630, 1 L.R.A. (N.S.) 626, 50 S. E. 506.

In State v. Wilkerson (1913) 164 N. C. 431, 79 S. E. 888, supra, the court sustained the constitutionality of a statute making possession of more than 1 gallon of spirituous liquor at any one time, whether in one or more places, prima facie evidence that it was kept for sale in violation of law; but a conviction was reversed because

the trial court, having instructed the jury that the fact of his having in his possession more than 1 gallon of the liquor made out a prima facie case against the defendant, further charged them that it was then the duty of the defendant "to go forward and satisfy the jury, by the greater weight of the evidence, that he did not have the liquor in his possession for the purpose of sale." And this error, it was held, was not cured by the subsequent charge that, if the jury had a reasonable doubt about the facts recited by the court, being those which the defendant must prove by the greater weight of the evidence, they should acquit.

The same act was approved in State v. Russell (1913) 164 N. C. 482, 80 S. E. 66, the court stating that the judge did not shift the burden to the defendant, as was done in State v. Wilkerson, but had kept it where it belonged, upon the state-followed in State v. Randall (1915) 170 N. C. 757, 87 S. E. 227, Ann. Cas. 1918A, 438.

A statute making the possession of more than a certain amount of intoxicating liquor prima facie evidence of an intent to violate provisions of the prohibitory law is not unconstitutional as invading the province of the judiciary, and depriving the accused of the presumption of innocence, or as making prima facie evidence of guilt a fact which has no relation to, or does not tend to prove, the criminal act. Caffee v. State (1915) 11 Okla. Crim. Rep. 485, 148 Pac. 680; Sellers v. State (1915) 11 Okla. Crim. Rep. 588, 149 Pac. 1071.

It may be noted that in Gillespie v. State (1910) 96 Miss. 856, 51 So. 811, 926, where the defendant was convicted of unlawfully selling intoxicating liquors, the court sustained a statute providing that the fact that any person has in his possession appliances adapted to retailing liquors shall be presumptive evidence that the person owning or controlling the appliances is engaged in selling or bartering intoxicating liquors in violation of the law, although it was argued that the statute was unconstitutional as depriving the defendant of

due process of law, since it denied him the benefit of the presumption of innocence, took from the jury the right to determine the facts, and encroached upon the judicial department of the government.

In State v. Intoxicating Liquors (1899) 109 Iowa, 145, 80 N. W. 230, a proceeding against certain liquors, where the statute provided that the finding of intoxicating liquors in the possession of one not legally authorized to sell or use the same, except, etc., shall be presumptive evidence that such liquors are kept for illegal sale, the court approved an instruction to the jury that the evidence proved conclusively that the bottles were found by the sheriff in the possession of the claimant upon the premises described; from such fact the law presumes that the same were kept for illegal sale; that this presumption was not conclusive, and that the claimant might rebut by proving that the liquor was not kept for an illegal purpose, but that it was not sufficient for him to prove that he himself did not keep same for an illegal purpose, but he must also prove that same was not so kept by anyone else. The court stated that, in view of the fact that he demanded its return, he was required to show that it was not kept by anyone for that purpose.

In People v. Beck (1922) 305 IIL 593, 137 N. E. 454, the court sustained a statute which provided that the possession of intoxicating liquor by any person not legally permitted to possess intoxicating liquor shall be prima facie evidence that such liquor is kept for the purpose of being bartered, furnished, or otherwise disposed of in violation of law, and disallowed the claim of the defendant that the statute had imposed upon him the burden of proof, thus requiring him to prove his innocence instead of requiring the prosecution to establish his guilt beyond a reasonable doubt, as the defendant was not required to establish his innocence beyond a reasonable doubt.