the possession of liquors by any person not legally permitted under the law to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, etc., in violation of law, and that the burden of proof shall be upon the possessor, in any action concerning the same, to prove that such liquor was lawfully acquired, possessed, and used. See also State v. Griebel (1922) 65 Mont. 390, 211 Pac. 331.

In Durfee v. State (1897) 53 Neb. 214, 73 N. W. 676, where the court sustained a statute making it unlawful for any person to keep for the purpose of sale, without a license, any spirituous, etc., liquor, and declaring that possession of the liquor shall be presumptive evidence of guilt "unless, after examination, he shall satisfactorily account for and explain the possession thereof, and that it was not kept for an unlawful purpose," the court, in overruling an objection that an instruction following the statute was erroneous as shifting the burden of proof from the state to the accused, stated that the presumption was not conclusive, but that the effect of the statute was to cast the burden upon the person having intoxicating liquors in his possession, to establish that they were not kept for sale in violation of law. Followed in Parsons v. State (1901) 61 Neb. 244, 85 N. W. 65.

Where the statute provided that the possession of intoxicating liquors shall be presumptive evidence of a violation of the chapter regulating the license. and sale of malt, spirituous, and vinous liquor, it was held that, as to counts in the indictment charging defendant with selling intoxicating liquors without a license, the defendant was presumed to be innocent, and that presumption was sufficient to acquit him until the evidence established his guilt beyond a reasonable doubt; but that as to those counts which charged the defendant with having such liquors in his possession with the intent and for the purpose of unlawfully selling and disposing of them, a different rule should prevail, as the statute clearly provided that when such liquors are found in the

defendant's possession, the presumption of innocence, to which he would ordinarily be entitled, must give way, and he is presumed to have violated the chapter aforesaid unless he can satisfactorily explain such possession. Yeoman v. State (1908) 81 Neb. 244, 115 N. W. 784, 117 N. W. 997.

In State v. Humphrey (1920) 42 S. D. 512, 176 N. W. 39, the court, in sustaining the statute providing that proof of the finding of intoxicating liquors in the possession of the accused, unless he is one legally authorized to sell or possess the same, shall be presumptive evidence that such liquors were kept contrary to law, said: "It was the evident intent of the legislature to cast upon the accused found with intoxicating liquors in his possession, the burden of showing the purpose for which he kept and stored such liquor. Appellant contends that this statutory presumption is an unconstitutional infringement of his personal rights, and compels him to give evidence against himself. We are of the opinion that this contention is not tenable."

But it has been held that the legislature may not make possession conclusive evidence of a violation of law which involved elements other than the possession. STATE V. LAPOINTE (reported herewith) ante, 1212; State v. Sixo (1915) 77 W. Va. 243, 87 S. W. 267. See also Sellers v. State (1915) 11 Okla. Crim. Rep. 588, 149 Pac. 1071.

Thus where the statute provided that the liquors in the possession of any person violating the particular section of the statute may be seized and "shall be conclusive evidence of the unlawful keeping, storing, and selling of the same by the person having such liquors in his possession," it was held that that part of the statute which made such possession "conclusive evidence" was unconstitutional and void." State v. Sixo (1915) 77 W. Va. 243, 87 S. W. 267, supra.

It is error to instruct the jury that, if they find beyond a reasonable doubt that the defendant had possession of more than a certain amount of liquor, then it devolved upon the defendant to produce sufficient evidence to

create a reasonable doubt as to his guilt, as the statute does not require the jury to find the evidence conclusive. Sellers v. State (Okla.) supra.

Miscellaneous.

It may be noted that in Hawes v. Georgia (1922) 258 U. S. 1, 66 L. ed. 431, 42 Sup. Ct. Rep. 204, it was held that a state may, consistently with the due process of law clause of U. S. Const., 14th Amend., create by statute a rebuttable presumption of guilty knowledge by the actual occupant of a farm, from a finding upon the premises of apparatus for distilling prohibited intoxicating liquors, although, under the local law, a defendant in a criminal case may not testify as a witness, and husband and wife are not competent or compellable to give evidence in any criminal proceeding for or against each other.

In State v. Beswick (1881) 13 R. I. 211, 43 Am. Rep. 26, the court declared unconstitutional a statute providing that "it shall not be necessary to prove an actual sale of the liquors

in any building, shop, saloon, place, or tenement in order to establish the fact that any of said liquors are there kept

for sale; but the notorious character of any such premises, or the notoriously bad or intemperate character of persons frequenting the same, or the keeping of the implements or appurtenances usually appertaining to grogshops, tippling shops, or places where such liquors are sold, shall be prima facie evidence that said liquors are kept on such premises for the purpose of sale within this state."

It may be noted that the cases cited in the reported case (STATE V. LAPOINTE, ante, 1212) from Gray (Mass.) arose under statutes making certain deliveries of intoxicating liquors prima facie evidence of a sale.

In Kunsberg v. State (1917) 147 Ga. 591, 95 S. E. 12, where the terms of the statute do not appear, it was held that, "with certain limitations, the legislature may enact that, when specified facts have been proved, they shall be prima facie evidence of the guilt of the accused, and shift the burden of proof."

Cases in relation to drugs and narcotics are not included. See, for example, State v. Mark (1923) Mont. 220 Pac. 94.

B. B. B.

courts.

2. The Constitution (art. 5, § 1) vests "the judicial power of the state"

Headnotes by WHITFIELD, J.

in designated tribunals and judges, and such tribunals and judicial officers are by the law protected from insult and interference, for the purpose

of giving them their due weight and authority in performing their judicial functions in the interest of orderly government.

for the benefit of the opposing party, therein.

[See 6 R. C. L. 490; 2 R. C. L. Supp. 132; 4 R. C. L. Supp. 419.]

- "constructive contempt."

5. An indirect or "constructive contempt" is an act done, not in the presence of a court or of a judge acting judicially, but at a distance, under circumstances that reasonably tend to degrade the court or the judge as a judicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court or judge.

[See 6 R. C. L. 488.]

-"criminal contempt."

6. A "criminal contempt" is conduct that is directed against the authority and dignity of a court or of a judge acting judicially, as in unlawfully assailing or discrediting the authority or dignity of the court or judge, or in doing a duly forbidden act.

[See 6 R. C. L. 490; 2 R. C. L. Supp. 132; 4 R. C. L. Supp. 419.]

-"civil contempt."

7. A "civil contempt" consists in failing to do something ordered to be done by a court or judge in a civil case

contempt.

8. When a court has adjudged an imprisonment for contempt of court, a superior court may, in appropriate habeas corpus proceedings, test the validity of the imprisonment by determining whether the court that imposed the sentence of imprisonment had jurisdiction of the person, had authority to render such a sentence, and had a proper predicate for its sentence in the charge and the proofs or admissions duly adduced before the sentence.

[See 6 R. C. L. 541; 2 R. C. L. Supp. 152.1

- when prisoner discharged.

9. If a person is legally adjudged and imprisoned for contempt of court, and the penalty imposed does not violate fundamental rights, he will not be discharged from such imprisonment on habeas corpus; but, if the matters complained of in the contempt proceedings do not in law constitute contempt of court, an adjudication that they do constitute contempt does not make it contempt, and relief from imprisonment for matters not amounting to contempt may be had by habeas corpus.

[See 6 R. C. L. 541; 2 R. C. L. Supp. 152.]

— extent of power of court.

10. The power of the court, in habeas corpus proceedings, to determine the validity of an imprisonment for contempt of court, is not to test divergent contentions as to the weight of the evidence adduced in proceedings. to punish as for a criminal contempt of court, when the hearing of conflicting evidence is appropriate, but the function of the court in habeas corpus is simply to consider the legal question whether the evidentiary facts, found by the court in adjudging the contempt, had any reasonable tendency to sustain the action taken based upon the finding by the court. Contempt discharge on oath.

11. In contempt proceedings at common law, "if the party can clear himself upon oath, he is discharged; but, if perjured, may be prosecuted for the perjury."

[See 6 R. C. L. 523, 534; 2 R. C. L. Supp. 145, 150.]

-effect of full answer to charges.

12. In proceedings for alleged constructive contempts, except, perhaps, where they are to enforce a civil reme

dy, if the party charged fully answers all the charges against him, he shall be discharged.

Statement by Whitfield, J.:

In a petition for a writ of habeas corpus filed in this court, it is alleged that the petitioner is illegally deprived of his liberty by the sheriff of Palm Beach county, Florida, by virtue of a judgment and commitment in contempt proceedings before the judge of the fifteenth judicial circuit.

It appears that the circuit judge issued a rule against Joe L. Earman, setting forth:

"That Joe L. Earman, judge of the municipal court of the city of West Palm Beach, Florida, did, on the 25th day of January, A. D. 1923, at which time there was pending in the said circuit court the case of Edwin Antelo, petitioner, against Leonard Bailey, chief of police of the city of West Palm Beach, defendant, the same being a petition for writ of habeas corpus, write to the judge of the fifteenth judicial circuit, a letter regarding said case of Antelo v. Bailey, which letter was in the following words, to wit: "West Palm Beach, Florida.

"January 25, 1923. "Hon. Edwin C. Davis, Judge 15th Judicial Circuit,

"West Palm Beach, Florida. "Dear Judge:

"This letter is written for your Honor's information, and as a communication from a judge of an inferior court to the judge of an anpellate court.

"Edward Antoles was tried in the municipal court of West Palm Beach on January 20 on the charge of lewd and lascivious conduct with one Katie Powell.

"Sentence was deferred until Monday, January 22, and at the

regular session of the court on that date he was sentenced to pay a fine of $100 and serve twenty days in jail at hard labor.

"The police department of West Palm Beach was very active last week, with result that many cases under the charge of lewd and lascivious conduct were presented for trial.

"Yesterday, a writ of habeas corpus was sued out before your Honor, and Edward Antoles was released on a nominal bond, and the hearing fixed for Monday, January 29, which gave him his liberty for five days.

"The ordinance under which Antoles was convicted has been attacked in this habeas corpus proceedings.

"The idea in this court's mind being that fairness and enforcement of law should be equally extended to all men, other violators who had been convicted for lewd and lascivious conduct were brought into court this morning.

"Edward Antoles, for whom habeas corpus proceedings were instituted, pleaded guilty.

"It seems that Antoles has influential friends who have signed his bond, and he also has funds to secure counsel.

"Antoles was sentenced on January 22.

"Tom Johnson, a carpenter employed on the El Verano Hotel, also pleaded guilty to the charge of lewd and lascivious conduct with one Myrtis Hansen, and was sentenced to pay a fine of $75 and serve five days in jail.

"Johnson is without influential friends or funds.

"Circumstances, however, were not as revolting or disgusting, when the fundamentals of decency are considered, as was the violation by Antoles.

"I have ordered Johnson's release on a nominal bond for his appearance in my court, Tuesday, January 30, for final disposition, as the Antoles habeas corpus proceeding is scheduled for a hearing before your Honor at 10 o'clock Monday morning, January 29.

"Katie Powell, a negro woman of dissolute character, who has been before the courts of Palm Beach and West Palm Beach many times, was convicted under the charge of lewd and lascivious conduct with Edward Antoles.

"She pleaded guilty and, pending the final decision in the Antoles hábeas corpus proceedings, I have ordered her release on a nominal bond for appearance in the municipal court Tuesday, January 30.

"Zene Russell, implicated in this same case under the charge of visiting a house of ill fame, is set for trial January 27, and he is now at liberty under a cash bond for $100.

"This case will be continued until after the Antoles habeas corpus proceeding has been disposed of. a negro,

"Johnnie Williams, without funds and unable to pay fine or secure legal counsel, was convicted January 22 on the charge of lewd and lascivious conduct with Mamie Ford, to which he pleaded guilty and now serving out his sentence at the rate of $1 per day, was also liberated on a nominal bond for his appearance in the municipal court on January 30.

"Mamie Ford, a negress, without funds to pay a fine or secure legal counsel, was also convicted on January 22 under the charge of lewd and lascivious conduct with Johnnie Williams, to which she pleaded guilty.

"The sentences of Johnnie Williams and Mamie Ford are each to pay a fine of $25 or twenty-five days in jail.

"Both have been released on

nominal bonds pending final decision of the Antoles habeas corpus proceeding.

"I took the position, your Honor, that the law should apply equally to all men, and if Edward Antoles, self-confessed violator, as indicated by his plea of guilty, can obtain his freedom, even for five days, others less fortunate, who also plead guilty, but are unable through lack of funds to secure legal counsel, and are without influential friends, should have like consideration extended to them.

"As they are therefore unable to reach your court through lack of funds, and as judge of the municipal court, I have attempted justice and fairness towards them.

"As will be observed, this communication is not a brief on law, but a statement of facts.

"Respectfully submitted.

"[Signed] Joe L. Earman, Judge of the Municipal Court of West Palm Beach, Florida.

"Said letter was written by the said Joe L. Earman and was delivered to and read by the court while the case of Antelo v. Bailey, aforesaid, was pending in the circuit court aforesaid undisposed of, and before said case was heard on its merits, and before the date set for the hearing thereof."