
    Wilhelmina Gillespie v. State of Mississippi.
    [51 South. 811.]
    Cbiminai, Law and Procedtjee. Unlawful sale of intoxicating liquors. Evidence. Presumption. Code 1906. § 1747. Laws 1908. ch. 115, p. 116.
    Under Code 1906, § 1747, as amended Laws 1908, eh. 115, p. 116, ' making the possession of appliances adapted to the retailing of intoxicating liquors presumptive evidence that the person having the possession of the same had been unlawfully selling such liquors, a conviction predicated of the presumption will not be vacated in the absence of explanatory evidence.
    Fbom the circuit court of, first district, Hinds county.
    IIoN. Wiley Ií. Potteb, Judge.
    Madame Gillespie, appellant, was indicted, and tried for and convicted of unlawfully selling intoxicating liquors and appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.
    
      Robert P. Thompson, for appellant.
    Appellant was indicted for unlawfully selling intoxicating liquors; she was convicted upon testimony showing nothing more than that she was found in possession of appliances adapted to the dram-shop' business. The Statute Laws 1908, ch. 115, p. 116, sec. 1747, makes the facts proved presumptive evidence “that the person owning or controlling such * * * appliances, * * * is engaged in keeping for sale * * * or in selling * * * intoxicating liquors contrary to law.”
    The presumption is not that she was keeping the liquors for sale and selling them, but that she was doing one or the other of the two things, both of which are misdemeanors. The word “or” is said to be the most equivocal word in the English language and its use is discountenanced, if not prohibited, in criminal pleadings.
    
      If tbe presumption be tbat tbe good woman was engaged in keeping intoxicating liquors for sale, sbe could not be convicted under tbe indictment on wbicb sbe was tried. What was tbe presumption ? This court cannot say, nor could tbe trial court rightfully bave said, because tbe law bas not specified as between tbe two separate and distinct things, both of wbicb are crimes.
    “Or” never means “and,” but each is often mistakenly used for tbe other. Warren County v. Boothe, 81 Miss. 267. Criminal statutes are to be strictly construed and there is no warrant for claiming tbat tbe word “or” was mistakenly used for “and” in tbe statute under consideration. Tbe legislature •did not intend to relieve tbe state from showing, in cases like this, something more than tbe possession • of tbe appliances; something more bad to be shown in order to exclude one of tbe presumptions and make tbe other applicable. Unless tbe state •showed something more tbe statute could not be invoked, and tbe case stood just as' if the statute bad never been passed.
    A presumption tbat defendant was guilty of the crime charged or of some other crime can never prove guilt of tbe •crime charged beyond all reasonable doubt. Such a presumption is too uncertain to uphold a conviction for crime. This •court cannot from this record adjudge tbat tbe presumption was tbat Madame Gillespie sold intoxicating liquors, since tbe statute just as effectually malees tbe presumption tbat sbe kept such liquors for sale. It does not create a presumption tbat sbe did both.
    Presumptions cannot prove crime any more effectually than admitted facts. If it bad been admitted on tbe trial tbat tbe woman had kept intoxicating liquors for sale or bad sold such liquor, sbe could not bave been convicted in tbe absence of evidence showing wbicb of tbe two crimes had been committed by her. While all good men abhor both crimes, and all crimes, we should not lose sight of fundamental principles.
    
      
      George Butler, assistant attorney-general, for appellee.
    Tlie word “or” in the statute means “and,” otherwise the’ whole legislative intent miscarried. It will be noted that the instruction required as a condition to a conviction the jury to believe from the evidence beyond doubt that appellant had; sold the intoxicants. Responding to the instruction the, jury convicted. This court cannot, in the face of the statute, vacate-the verdict. 4 Wigmore’s Evidence, p. 3534, sec. 2491.
   Mates, J".,

delivered the opinion of the court.

Under section 1747, c. 115, p. 117, of the Acts of 1908, the-verdict of the jury was fully warranted by the proven facts-This section provides, among other things, 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. The above proof' was made before the jury, and the court then instructed that if the jury believed from the evidence beyond a reasonable-doubt that defendant was found in possession of appliances-which she owned or controlled, and that these appliances were adapted to retailing, then this proof was presumptive evidence-that she was selling liquor unlawfully, and if the jury believed from the evidence and beyond a reasonable doubt that defendant did sell the -liquors as charged in the indictment, then they should convict. The requirements of this statute, both as to-proof under it and as to the law applicable under this proof,, were observed in every parrticular. The defendant offered no-proof whatever to rebut the presumption of law arising from the proof of the above facts, and, if the jury believed that the appliances were found as testified to, then there was nothing-for them to do but convict. It may have been that the mere-denial by' defendant that she had unlawfully sold intoxicating-liquors, on the- facts in .this record, would have been sufficient. to overcome tbis presumption; but, in the absence of any proof in denial of the charge, the conviction must stand. . As Mr. Wigmore says, in his valuable treatise, on this very question of presumption: “The peculiar effect of a presumption of law is merely to invoke a rule of law compelling the jury to reach the conclusion 'in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary, the presumption disappears as a rule- of law, and the case is in the jury’s hands free from any rule.” 4 Wigmore’s Evidence, p. 3534, § 2491.

J. B. Stirling, attorney-general, for appellee,

answered to the suggestion of error, citing Belcher v. Mhoon, 47 Miss. 613 State v. Thomas, 144 Ala. 77, 6 -Am. & Eng. Ann. Oases, 744 and note; People v. Common, 36 Am. St. Eep. 668.

Although this conviction is had in the face of a record containing no direct proof that appellant did unlawfully sell intoxicating liquors, it does contain such proof as the law says shall constitute, in the absence of any opposing testimony, presumptive evidence of guilt, and in this condition the court is bound to affirm. Affirmed.

After the delivery of the foregoing opinion counsel for appellant, Robert P. Thompson and Hallam & Cooper, filed a suggestion of error, urging that the statute, Laws 1908, ch. 115, p. 116, see. 1747, was unconstitutional as depriving appellant of due process of law, since it denies a defendant the-benefit of the presumption of innocence; takes from the jury the right to determine the facts and encroaches upon the judicial department of the government.

Mates, J., delivered the following response to the suggestion of error.

The constitutionality of acts similar to the one involved in this cause is discussed 'in the case of People v. Cannon, 139 N. Y. 32, 34 N. E. 759, 36 Am. St. Rep. 668, and in a note to be found in 6 Ann. & Eng. Ann. Cas. 746, 747. Tbe great weight of authority sustains the validity of this law, free from constitutional objection. That there are limits on the power of the Legislature to- enact statutes making certain facts prima facie evidence of other facts is well recognized by all authorities. What these limitations are need not be attempted to be stated here, but in the authorities cited above will be found a well-stated rule on this subject.

Suggestion of error is overruled.  