A state law providing that a person prosecuted for permitting
apparatus for distilling intoxicating liquors to be upon real
estate actually occupied by him shall be prima facie
presumed to have known of the presence of such apparatus there
found does not violate due process of law, even where the defendant
is not allowed to testify under oath or to have the testimony of
his wife. P. 258 U. S. 3
150 Ga. 101 affirmed.
Error to a judgment of the Supreme Court of Georgia sustaining a
conviction and sentence of the plaintiff in error for having
knowingly permitted and allowed a certain person or persons to have
and possess and locate on his premises apparatus for the distilling
and manufacturing of liquors specified in the Act of March 28,
1917, Acts Ex.Sess.1917, p. 7.
Page 258 U. S. 2
MR. JUSTICE McKENNA delivered the opinion of the Court.
Indictment against Hawes under the law of Georgia for the
offense of knowingly permitting certain persons to locate and have
on his premises apparatus for distilling and manufacturing
prohibited liquors and beverages.
A verdict of guilty was rendered. A motion for new trial was
made and denied, which action and the judgment of the trial court
were affirmed on appeal by the supreme court of the state.
The act of the state upon which the indictment was based made it
unlawful, among other things, "to distill, manufacture or make any
alcoholic spirits, vinous, or malted liquors or intoxicating
beverages" in the state.
Section 22 of the act provides that, when any apparatus used for
"is found or discovered upon said premises the same shall be
evidence that the person in actual possession
had knowledge of the existence of the same, and on conviction
therefor, shall be punished as prescribed in § 16 of this Act, the
burden of proof in all cases being upon the person in actual
possession to show the want of knowledge of the existence of such
apparatus on his premises."
The trial court instructed the jury that Hawes was charged with
knowing who had the apparatus upon the premises of which he was in
possession or who operated it, and that, under the act, the burden
was upon him to show the want of knowledge, and further, that all
that the state had to show was that the apparatus was on the
"when the state shows that, stopping there, that makes out a
case against defendant, and you should find
the defendant guilty as charged in the indictment"
unless he show that it, the apparatus, was there without his
consent and knowledge.
Page 258 U. S. 3
The charge was made the basis of a motion for new trial on the
ground that it was offensive to the due process clause of the
Constitution of the United States and also of the Constitution of
Georgia. The same grounds were assigned in the supreme court of the
state on appeal from the order and judgment denying the motion for
In the supreme court, the specific error against the charge of
the court was that it cast upon Hawes the burden of "showing the
want of knowledge of the existence of the apparatus on his
premises, and, in fine, his innocence of the crime with which he is
charged," he "claiming that this was an unreasonable and arbitrary
exercise of its power by the Legislature of the state of
And this is the assignment here -- in other words, that § 22
creates a presumption of guilty knowledge from the finding of the
apparatus upon premises occupied by him, and that both the trial
court and the Supreme Court of Georgia enforced this statutory
presumption, and the same therefore entered into his conviction,
and that the Fourteenth Amendment to the Constitution of the United
States was thereby violated.
In aid of his contention and in emphasis of the effect of the
statute against him, Hawes points out that a defendant in a
criminal case is not allowed to testify as a witness, that he has
only the right to make a statement not under oath, and that husband
and wife are not competent or compellable to give evidence in any
criminal proceeding for or against each other. *
Page 258 U. S. 4
It has been decided, as counsel concede, that the legislature
may make one fact prima facie
evidence of another, and it
is certainly within the established power of a state to prescribe
the evidence which is to be received in the courts of its own
government. Adams v. New York, 192 U.
, 192 U. S.
In Hawkins v. Bleakly, 243 U.
, 243 U. S. 214
it is said:
"the establishment of presumptions and of rules respecting the
burden of proof is clearly within the domain of the state
governments, and that a provision of this character, not
unreasonable, in itself and not conclusive of the rights of the
party, does not constitute a denial of due process of law.
Mobile, Jackson & Kansas City R. Co. v. Turnipseed,
219 U. S.
, 219 U. S. 42
Undoubtedly there must be a relation between the two facts.
Bailey v. Alabama, 219 U. S. 219
McFarland v. American Sugar Refining Co., 241 U. S.
. That is, if one may evidence the other, there must
be connection between them, a requirement that reasoning insists
on, and necessarily the law.
We think the condition is satisfied by the Georgia statute.
Distilling spirits is not an ordinary incident of a farm, and, in a
prohibition state, has illicit character and purpose, and certainly
is not so silent and obscure in use that one who rented a farm upon
which it was or had been conducted would probably be ignorant of
it. On the contrary,
Page 258 U. S. 5
it may be presumed that one on such a farm or one who occupies
it will know what there is upon it. It is not arbitrary for the
state to act upon the presumption and erect it into evidence of
knowledge; not peremptory, of course, but subject to explanation,
and affording the means of explanation. Hawes had such means. An
explanatory statement was open to him with a detail of the
circumstances of his acquisition of the place, and he availed
himself of it. He could have called others to testify to the
circumstances of his acquisition, for the circumstances were not so
isolated or secret as not to have been known to others.
We agree, therefore, with the supreme court of the state that
the existence upon land of distilling apparatus, consisting of the
still itself, boxes, and barrels, has a natural relation to the
fact that the occupant of the land had knowledge of the existence
of such objects and their situation.
The principle and the presumption depending upon it were
certainly not strained against Hawes. To the comment of the court
we may add that the distilling apparatus was within 300 yards of
his house. It is true that a pasture intervened, it was testified,
between it and his house, and then "a hill with pines growing on
it, and there was a descent down a hill to where the still was
"it could not have been seen from the house, but smoke arising
from it could have been seen. There was across the pasture a path
leading towards the still."
It was added, however, "that the path might have been made by
cattle or stock." And a witness testified that the path was
MR. JUSTICE PITNEY took no part in the consideration and
decision of this case.
* Section 1036 of the Penal Code is as follows.
"In all criminal trials, the prisoner shall have the right to
make to the court and jury such statement in the case as he may
deem proper in his defense. It shall not be under oath, and shall
have such force only as the jury may think right to give it. They
may believe it in preference to the sworn testimony in the case.
The prisoner shall not be compelled to answer any questions on
cross-examination, should he think proper to decline to
Section 1037 of the Penal Code is as follows:
"Husband and wife shall not be competent or compellable to give
evidence in any criminal proceeding for or against each other,
except that the wife shall be competent, but not compellable, to
testify against her husband upon his trial for any criminal offense
committed, or attempted to have been committed, upon her person.
She is also a competent witness to testify for or against her
husband in cases of abandonment of his child, as provided for in §
116 of this Code."