March 5, 1929.
APPEAL from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.
Frame Raffetto, for Appellant:
John R. Ross, District Attorney; M.A. Diskin, Attorney-General, and Wm. Forman, Jr., Deputy Attorney-General, for the State:
It was error for the trial court to give instruction No. 5, which laid down the rule of prima-facie evidence. While this instruction in the abstract correctly declared the law, it was inapplicable in this case for the reason that there was no proof offered at the trial proving or tending to prove that the yen shee was contained in a container or wrapped in such a manner as to be adaptable for the purpose of sale. Whether the same was so prepared is an evidentiary fact, capable of proof, and of which the jury could not take judicial notice or resort to common knowledge. This instruction was harmful to the defendant because the jury may have assumed that because of the giving of this instruction the drug in question was wrapped or prepared in such a manner as to indicate that the same was kept for the purpose of sale, when there was nothing in the evidence to establish such fact or justify such an inference. An instruction may be harmful and erroneous when same is inapplicable to the case made out before the jury, even though the same may state correctly in the abstract a principle of law.
Instruction No. 12 was clearly erroneous and highly prejudicial to the defendant. It declared that the law presumed that from acts assumed to have been proven that as a matter of law the defendant was presumed to intend the natural and probable consequences of the act. It casts the burden upon the defendant to overcome this legal presumption asserted to exist as a matter of law, and deprives the defendant of the legal presumption of innocence, which, on the contrary of the rule asserted, presumed the defendant to be innocent of the specific criminal intent essential to constitute the offense charged, and cast upon the prosecution the burden of proving as a matter of fact that the defendant did possess such criminal intent, with which legal presumption had nothing to do. The question is not one of law but one of fact to be proven by the state. The only legal presumption, independent of evidence, that can obtain is the presumption of innocence. State v. Cerfoglio, 46 Nev. 350; State v. Pappas, 39 Nev. 40; State v. MacKinnon, 41 Nev. 182. We insist the instruction was ambiguous and misleading, and did not, even in the abstract, state correctly any rule of law applicable to the case under consideration, and on the contrary took from the jury the right to determine for themselves as a matter of fact the weight and sufficiency of the evidence before them, in so far as the same affected the question of intent, and was naturally calculated to lead the jury to believe that the intent arose from a legal presumption which the law presumed from acts of the defendant, which it might be inferred from the instruction had been proven at the trial, and that the inference to be drawn therefrom was a matter of law which presumed that the defendant intended even the probable consequences of the act.
As we have pointed out, there is no tangible proof of the existence of any fact bringing the case within the prima-facie rule laid down by the statute. Hence the verdict should not have been for more than the unlawful possession of the yen shee in question.
The position taken by appellant in his opening brief was that the state would necessarily have to show the drug to be prepared in bindles or similar packages in order for it to be adapted or suitable for sale. The state's contention is that such a requirement is not contemplated by the statute. The defendant was convicted of being a wholesaler, in selling narcotic drugs wholesale. Almost any kind of package or container can be a suitable one in which the defendant might sell the drug. The jury, having had before it in evidence the narcotic drug and the container, could decide for itself whether or not such container was adaptable for the purpose of sale. Especially should this be the case where one is charged and the proof shows him to be a wholesaler of such drugs. Minter v. City of Jackson (Miss.), 57 So. 549; Price v. City of Gulfport, 52 So. 486; Gillespie v. State, 51 So. 811. Instruction No. 5 given by the court simply quoted the statute which applied to the prosecution in this case. There could be no error in the court giving that instruction.
In contending that the court erred in giving instruction No. 12, appellant cites the cases of State v. MacKinnon, 41 Nev. 189, and State v. Pappas, 39 Nev. 40, to the point that such an instruction is erroneous. An examination of these cases will show that the instruction given in those cases was substantially different from the instruction given here. The instruction here was substantially to the effect that the jury should acquit the defendant if they had a reasonable doubt of his intent, but they could take into consideration the fact that a man intends the reasonable and natural consequences of an act intentionally done. Such has always been the law of this state. See State v. McGinnis, 6 Nev. 109, holding that criminal intent can only be proven as a deduction from a declaration or act, and when the acts are established, the natural and logical deduction is that defendant intended to do what he did do, and if he offers no excuse or palliation of the act done, such deduction would become conclusive.
The court had further instructed the jury in instruction No. 7 to the effect that a man cannot be criminally held responsible for the possession of that which he is not shown to actually and consciously possess. When taking into consideration instruction No. 12 and the remaining instructions, there can be no doubt that defendant was not prejudiced by these instructions, but, on the other hand, this instruction clearly stated the law applicable to the case. In other words, if defendant consciously became the possessor of these drugs, he is to be held responsible for his act in possessing them when such act was purely voluntary on his part.
The appellant, William Muldoon, designated herein as "defendant," was convicted of the crime of having in his possession, for the purpose of sale, a narcotic drug, to wit, yen shee, in a quantity exceeding one ounce. Upon his conviction the defendant was sentenced to confinement in the state prison for a period of not less than 10 years nor more than 15 years. The defendant appeals to this court from the judgment and sentence, and also from an order denying the defendant's motion for a new trial. The defendant seeks reversal of the judgment and order appealed from upon the grounds of the insufficiency of the evidence to support the judgment and sentence; that the judgment is against law; and that the trial court misdirected the jury upon one of the ingredients of the offense charged, namely, intent.
The information upon which the defendant was convicted is grounded upon section 5 of the narcotic act of 1923, as amended by the act of 1925 (Stats. 1923, p. 39, c. 33; Stats. 1925, p. 231, c. 146). Section 5 of the act as amended reads:
"A peddler of any of the narcotic drugs enumerated in section one of this act is hereby defined as a person selling, furnishing, or giving away or having in his possession for the purpose of sale, furnishing, or gift of any of said narcotic drugs in quantities not exceeding one ounce.
"A wholesaler of any of the narcotic drugs enumerated in section one of this act is hereby defined as a person selling, furnishing, or giving away, or having in his possession for the purpose of sale, furnishing, or gift of any of said narcotic drugs in quantities exceeding one ounce. Any person violating the provisions of this section shall be guilty of a felony, and shall be punished as follows: Any person who shall be convicted of being a peddler as herein defined shall be punished by imprisonment in the state prison for a period of not less than five years, and any person who shall be convicted of being a wholesaler as herein defined shall be punished by imprisonment in the state prison for a period of not less than ten years. Proof of the possession of any narcotic drug inclosed or wrapped in a package or container or otherwise arranged in such form as to be suitable or adapted for the purposes of sale shall be prima-facie proof of possession for the purpose of sale."
The facts, in brief, are substantially as follows: William Muldoon, an Indian, conducted a grocery store in the incorporated town of Yerington, adjacent to an Indian camp therein. On November 5, 1927, his place of business was visited by two federal narcotic inspectors, armed with a warrant to search defendant's premises. When the defendant was informed by the inspectors of the warrant, he stated to them that it would be unnecessary to make a search, as he had the "stuff" and would have his wife give it to them. His wife left the presence of the parties and returned with a can containing more than four ounces of yen shee. No search apparently was made by the inspectors to find other narcotics. One of the inspectors who testified upon the trial stated that the defendant offered them $1,900 to forget the incident and keep "mum." The defendant was placed under arrest and taken before a United States commissioner in Yerington, where one of the inspectors, A.W. Roberts, the witness referred to, swore to a complaint against the defendant, presumably under the federal narcotic act. The record discloses that the government yielded its jurisdiction over the defendant, and he was delivered into the custody of the local state officers, and he was prosecuted, as above stated, for the violation of the narcotic act of 1923, as amended by the act of 1925.
1, 2. At the close of the testimony the jury was burdened with 18 instructions as to the law and procedure. Counsel for the defendant contends that particularly two of the instructions, namely, instruction No. 5 and instruction No. 12, constitute reversible error.
Instruction No. 5 reads as follows: "You are instructed that proof of the possession of any narcotic drug inclosed or wrapped in a package or container, or otherwise arranged in such form as to be suitable or adapted for the purpose of sale, shall be prima-facie proof of possession for the purpose of sale."
It will be observed that this instruction conforms to the language of the statute with respect to the rule of prima-facie evidence, and its application was left entirely with the jury. Conceding that the narcotic drug found in the possession of the defendant was not inclosed or wrapped in a package, or container, such as might be considered as being particularly adapted for the purpose of the sale of its contents, either by wholesale or peddling, nevertheless, it was for the jury to determine whether, under all of the facts and circumstances, the drug was arranged in such form as to be suitable or adapted for the purpose of sale. It frequently happens that a statute designates a certain kind of evidence as proof of certain facts. For example, our attention is directed to statutes which prescribe that having spirituous liquor on a counter in a public house shall be prima-facie proof of selling. This designation, however, does not, unless the statute expressly so provides, exclude other proof of such facts. 1 Wharton's Criminal Evidence (10th ed.) sec. 157. The can, containing more than four ounces of yen shee, found in the possession of the defendant, was admitted in evidence as being prima-facie proof, in connection with other facts, that the defendant possessed the drug for the purpose of sale. Conceding that the can was not a container such as that used by those lawfully engaged in the business of sale of such drugs, it, nevertheless, was a question for the jury to determine whether or not the particular receptacle was suitable or adapted for the purpose of the sale of its contents. Under the rule of prima-facie proof as laid down by the statute, the state was not limited or restricted to any particular kind or character of container, provided it was one suitable or adapted for the purpose of sale of the drug, either by peddling or in bulk.
3. Instruction No. 12 complained of reads as follows: "The jury is instructed that upon the question of intent the law presumes a man to intend the reasonable and natural consequences of any act intentionally done; and this presumption of law will always prevail, unless, from a consideration of all the evidence bearing upon the point, the jury entertain a reasonable doubt whether such intention did exist."
Counsel for the defendant contends that the giving of this instruction was prejudicial, in that it eliminated from the jury the question of intent, provable as any other fact in the case. In support of this contention, counsel relies upon the authority of the cases of State v. Pappas, 39 Nev. 40, 152 P. 571, and State v. MacKinnon, 41 Nev. 182, 168 P. 330. We do not consider the cases in point. In those cases the trial court in effect instructed the jury that the law presumes the existence of a specific intent. The instruction here does not do that. It simply advises that the law presumes a man to intend the natural consequences of an act intentionally done, and leaves to the jury the determination of what the intention was.
It is argued on behalf of the defendant that the evidence is insufficient to support the verdict. After a consideration of the entire evidence, we are not in accord with this contention.
The judgment is affirmed.
ON PETITION FOR REHEARING
August 12, 1929.
I concur in the order of affirmance and in so much of the opinion of Justice SANDERS as deals with instruction No. 5.
I also concur in the conclusion that the giving of instruction No. 12 was not error. The law certainly presumes a man to intend the reasonable and natural consequences of any act intentionally done. State v. Newton, 4 Nev. 410. The presumption is, of course, one that may be rebutted. This is clearly stated in the instruction.