1. Sec. 2(f) of the Federal Firearms Act, where it provides that
it shall be unlawful for any person who has been convicted of a
crime of violence or is a fugitive from justice to receive any
firearm or ammunition "which has been shipped or transported in
interstate or foreign commerce," is confined to the receipt of
firearms or ammunition as a part of interstate transportation, and
does not extend to the receipt, in an intrastate transaction, of
such articles which, at come prior time, have been transported
interstate. P.
319 U. S.
466.
2. Congress was without power to create the presumptions sought
to be created by § 2(f) of the Federal Firearms Act, to-wit: that,
from the prisoner's prior conviction of a crime of violence and his
present possession of a firearm or ammunition, it shall be presumed
(1) that the article was received by him in interstate or foreign
commerce, and (2) that such receipt occurred after July 30, 1938,
the effective date of the statute. P.
319 U. S.
466.
3. A statutory presumption cannot be sustained if there be no
rational connection in common experience between the fact proved
and the ultimate fact presumed. P.
319 U. S.
467.
131 F.2d 261, reversed. 131 F.2d 614, affirmed.
CERTIORARI, 317 U.S. 623 (No. 569), to review the affirmance of
a conviction under the Federal Firearms Act, and certiorari, 318
U.S. 748 (No. 636), to review a judgment reversing a like
conviction.
Page 319 U. S. 464
MR. JUSTICE ROBERTS delivered the opinion of the Court.
These cases involve the construction and validity of § 2(f) of
the Federal Firearms Act, [
Footnote
1] which is:
"It shall be unlawful for any person who has been convicted of a
crime of violence or is a fugitive from justice to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce, and the possession of a firearm or
ammunition by any such person shall be presumptive evidence that
such firearm or ammunition was shipped or transported or received,
as the case may be, by such person in violation of this Act."
In No. 569, Tot, the petitioner, was convicted [
Footnote 2] upon an indictment which charged
that he, having been previously convicted of two crimes of
violence, a burglary and an assault and battery, with intent to
beat, wound, and ill-treat, [
Footnote 3] on or about September 20, 1938, at Newark, New
Jersey, knowingly, unlawfully, and feloniously received a described
firearm which "had been shipped and transported in interstate
commerce to the said City of Newark." The Circuit Court of Appeals
affirmed the judgment. [
Footnote
4]
The Government's evidence was that Tot had been convicted of
assault and battery in 1925, and had pleaded
non vult to a
charge of burglary in 1932 in state courts, and that, on September
22, 1938, he was found in possession of a loaded automatic
pistol.
Page 319 U. S. 465
After denial of a motion for a directed verdict, Tot took the
stand and testified that he purchased the pistol in 1933 or 1934.
He admitted the criminal record charged in the indictment and other
convictions. His sister and his wife testified in corroboration of
his evidence, but their testimony was shaken on cross-examination.
In rebuttal, the Government produced a representative of the
manufacturer who testified that the pistol had been made in
Connecticut in 1919 and shipped by the maker to Chicago, Illinois.
At the close of the case, petitioner renewed his motion for a
directed verdict, which was denied.
In No. 636, Delia, the respondent, was convicted upon two
counts. The first alleged that, on September 25, 1941, he was a
person previously convicted of a crime of violence -- robbery while
armed [
Footnote 5] -- and that
he received and possessed a firearm, described in the indictment,
"which firearm had theretofore been shipped and transported in
interstate commerce." The second repeated the allegation of
previous conviction and charged that, on September 25, 1941, he
received and possessed certain cartridges which "had been
theretofore shipped and transported in interstate commerce." The
Government's proof was that Delia had been convicted of armed
robbery and, on September 25, 1941, had in his possession a loaded
revolver which had been manufactured in Massachusetts prior to
1920; that some of the cartridges in the pistol had been
manufactured in Ohio and some in Germany, the former after 1934 and
the latter at an unknown date. The respondent testified that he
had, at about the time of his arrest, picked up the revolver when
it was dropped by a person who attacked him, but there was
testimony which tended to contradict
Page 319 U. S. 466
this defense. The Circuit Court of Appeals reversed the
conviction on each count. [
Footnote
6]
Both courts below held that the offense created by the Act is
confined to the receipt of firearms or ammunition as a part of
interstate transportation, and does not extend to the receipt, in
an intrastate transaction, of such articles which, at some prior
time, have been transported interstate. The Government agrees that
this construction is correct. There remains for decision the
question of the power of Congress to create the presumption which §
2(f) declares, namely, that, from the prisoner's prior conviction
of a crime of violence and his present possession of a firearm or
ammunition, it shall be presumed (1) that the article was received
by him in interstate or foreign commerce, and (2) that such receipt
occurred subsequent to July 30, 1938, the effective date of the
statute.
The Government argues that the presumption created by the
statute meets the tests of due process heretofore laid down by this
court. The defendants assert that it fails to meet them because
there is no rational connection between the facts proved and the
ultimate fact presumed, that the statute is more than a regulation
of the order of proof based upon the relative accessibility of
evidence to prosecution and defense, and casts an unfair and
practically impossible burden of persuasion upon the defendant.
An indictment charges the defendant with action or failure to
act contrary to the law's command. It does not constitute proof of
the commission of the offense. Proof of some sort on the part of
the prosecutor is requisite to a finding of guilt; it may consist
of testimony of those who witnessed the defendant's conduct.
Although the Government may be unable to produce testimony of
eye-witnesses
Page 319 U. S. 467
to the conduct on which guilt depends, this does not mean that
it cannot produce proof sufficient to support a verdict. The jury
is permitted to infer from one fact the existence of another
essential to guilt if reason and experience support the inference.
In many circumstances, courts hold that proof of the first fact
furnishes a basis for inference of the existence of the second.
[
Footnote 7]
The rules of evidence, however, are established not alone by the
courts, but by the legislature. The Congress has power to prescribe
what evidence is to be received in the courts of the United States.
[
Footnote 8] The section under
consideration is such legislation. But the due process clauses of
the Fifth and Fourteenth Amendments set limits upon the power of
Congress or that of a state legislature to make the proof of one
fact or group of facts evidence of the existence of the ultimate
fact on which guilt is predicated. The question is whether, in this
instance, the Act transgresses those limits.
The Government seems to argue that there are two alternative
tests of the validity of a presumption created by statute. The
first is that there be a rational connection between the facts
proved and the fact presumed; the second, that of comparative
convenience of producing evidence of the ultimate fact. We are of
opinion that these are not independent tests, but that the first is
controlling, and the second but a corollary. Under our decisions, a
statutory presumption cannot be sustained if there be no rational
connection between the fact proved and the ultimate fact presumed,
if the inference of the one from proof of the other is arbitrary
because of lack of connection
Page 319 U. S. 468
between the two in common experience. [
Footnote 9] This is not to say that a valid presumption
may not be created upon a view of relation broader than that a jury
might take in a specific case. [
Footnote 10] But where the inference is so strained as
not to have a reasonable relation to the circumstances of life as
we know them, it is not competent for the legislature to create it
as a rule governing the procedure of courts.
The Government seeks to support the presumption by a showing
that, in most states, laws forbid the acquisition of firearm
without a record of the transaction or require registration of
ownership. From these circumstances, it is argued that mere
possession tends strongly to indicate that acquisition must have
been in an interstate transaction. But we think the conclusion does
not rationally follow. Aside from the fact that a number of states
have no such laws, there is no presumption that a firearm must have
been lawfully acquired, or that it was not transferred interstate
prior to the adoption of state regulation. Even less basis exists
for the inference from mere possession that acquisition occurred
subsequent to the effective date of the statute, July 30, 1938.
And, as no state laws or regulations are cited with respect to the
acquisition of ammunition, there seems no reasonable ground for a
presumption that its purchase or procurement was in interstate,
rather than in intrastate, commerce. [
Footnote 11] It is not too much to say that the
presumptions created by the law are violent, and inconsistent with
any argument drawn from experience.
Page 319 U. S. 469
Nor can the fact that the defendant has the better means of
information, standing alone, justify the creation of such a
presumption. In every criminal case, the defendant has at least an
equal familiarity with the facts, and, in most, a greater
familiarity with them, than the prosecution. It might, therefore,
be argued that to place upon all defendants in criminal cases the
burden of going forward with the evidence would be proper. But the
argument proves too much. If it were sound, the legislature might
validly command that the finding of an indictment, or mere proof of
the identity of the accused, should create a presumption of the
existence of all the facts essential to guilt. This is not
permissible. [
Footnote
12]
Whether the statute in question be treated as expressing the
normal balance of probability, or as laying down a rule of
comparative convenience in the production of evidence, it leaves
the jury free to act on the presumption alone once the specified
facts are proved, unless the defendant comes forward with opposing
evidence. And this we think enough to vitiate the statutory
provision.
Doubtless the defendants in these cases knew better than anyone
else whether they acquired the firearms or ammunition in interstate
commerce. It would, therefore, be a convenience to the Government
to rely upon the presumption and cast on the defendants the burden
of coming forward with evidence to rebut it. But, as we have shown,
it is not permissible thus to shift the burden by arbitrarily
making one fact, which has no relevance to guilt of the offense,
the occasion of casting on the defendant the obligation of
exculpation. The argument from convenience is admissible only where
the inference is a permissible one, where the defendant has more
convenient access to the proof, and where requiring him to go
forward with proof will not subject him to unfairness
Page 319 U. S. 470
or hardship. [
Footnote
13] Even if the presumption in question were, in itself,
reasonable, we think that the nature of the offense, and the
elements which go to constitute it, render it impossible to sustain
the statute, for the reason that one element of the offense is the
prior conviction of a crime of violence. If the presumption
warrants conviction unless the defendant comes forward with
evidence in explanation and if, as is necessarily true, such
evidence must be credited by the jury if the presumption is to be
rebutted, the defendant is under the handicap, if he takes the
witness stand, of admitting prior convictions of violent crimes.
His evidence as to acquisition of the firearm or ammunition is thus
discredited in the eyes of the jury before it is given.
Although the Government recognizes that the authorities cited in
Note 9 announce the rule by which
the validity of the Act is to be tested it relies on certain
other decisions as supporting the legislation. We think that what
was decided in those cases was not a departure from the rule, and
that they are distinguishable from the instant cases.
In
Adams v. New York, 192 U. S. 585, a
state statute made it an offense "knowingly" to possess policy
slips, and provided that possession should be presumptive evidence
"of possession thereof knowingly." The statutory presumption was
sustained. Accidental and innocent possession of such a paper would
be extraordinary and unusual, and the statutory presumption was
hardly needed to justify a jury in inferring knowledge of the
character of the policy slip by one found in possession of it.
In
Hawes v. Georgia, 258 U. S. 1, the
statutory offense was that of knowingly permitting a still upon the
defendant's premises. The statute provided that, when distilling
apparatus was found on the premises, this should be
Page 319 U. S. 471
prima facie evidence that the person in actual
possession had knowledge of its existence. The defendant's premises
were a farm on which a still was found. This court sustained the
presumption. The inference so accorded with common experience that
a statutory provision scarcely was necessary to shift the burden of
proof.
In
Fong Yue Ting v. United States, 149 U.
S. 698, an Act of Congress was involved which required
every Chinese alien within one year to procure from the Collector
of Internal Revenue a certificate of residence, and made it the
duty of such alien to produce the certificate on request. Any
officer was authorized to arrest a Chinese alien failing to produce
the certificate on request, and to hold him for deportation. The
Act placed on the alien the burden of proving at the deportation
hearing his residence, and of excusing his failure to procure a
certificate. Failure to have in his possession the certificate the
law required him to have gave rise to a natural inference of
intentional failure to procure it or unlawful residence in the
country which precluded his procuring it. In such a situation, the
shifting to the alien of the burden of explanation imposed no
unreasonable hardship upon him.
In
Yee Hem v. United States, 268 U.
S. 178, it appeared that an Act of Congress prohibited
importation of opium except under Treasury regulations, and the
latter forbade importation of smoking opium. The statute made it an
offense knowingly to conceal opium illegally imported, and threw
upon a defendant found in possession of smoking opium the burden of
showing that he had not acquired it through illegal importation.
This court sustained the presumption on the ground that no lawful
purchase of smoking opium could occur in this country, and that,
therefore, possession gave rise to sinister implications. It
concluded it was not unreasonable to create a presumption of
unlawful importation as the source of the commodity the possession
of which the defendant concealed.
Page 319 U. S. 472
In
Casey v. United States, 276 U.
S. 413, the offenses created by Act of Congress were the
purchase or sale of morphine from packages not stamped with an
Internal Revenue tax stamp. The defendant was charged with a
purchase from such a package. The evidence showed that he dispensed
the drug in clandestine fashion, and not from a stamped package. In
these circumstances, this court held that the presumption created
by the statute that a sale of morphine from an unstamped package
should be
prima facie evidence of a similar purchase was
not unreasonable or beyond the realm of common experience.
The Government seeks to sustain the statute on an alternative
ground. It urges that Congress, in view of the interstate commerce
in firearms, might, in order to regulate it, have prohibited the
possession of all firearms by persons heretofore convicted of
crimes of violence; that, as the power of Congress extends so far,
the presumption that acquisition was in interstate commerce is the
lesser exertion of legislative power, and may be upheld. [
Footnote 14] Two considerations
render the argument inadmissible. First, it will not serve to
sustain the presumption of acquisition after the effective date of
the Act, and secondly, it is plain that Congress, for whatever
reason, did not seek to pronounce general prohibition of possession
by certain residents of the various states of firearms in order to
protect interstate commerce, but dealt only with their future
acquisition in interstate commerce. The judgment in No. 569 is
reversed and that in No. 636 is affirmed.
No. 69, reversed. No. 66, affirmed.
MR. JUSTICE MURPHY took no part in the consideration or decision
of these cases.
Page 319 U. S. 473
[
Footnote 1]
c. 850, 52 Stat. 1250, 1251; 15 U.S.C. § 902(f).
[
Footnote 2]
See 42 F. Supp. 252.
[
Footnote 3]
These are crimes of violence according to the definition
contained in § 1(6) of the Act, 15 U.S.C. § 901(6).
[
Footnote 4]
131 F.2d 261.
[
Footnote 5]
Armed robbery is a crime of violence a defined in § 1(6) of the
Act.
[
Footnote 6]
131 F.2d 614.
[
Footnote 7]
Wilson v. United States, 162 U.
S. 613,
162 U. S.
619.
[
Footnote 8]
Ex parte Fisk, 113 U. S. 713,
113 U. S. 721;
Adams v. New York, 192 U. S. 585,
192 U. S. 599;
Mobile, J. & K.C. R. Co. v. Turnipseed, 219 U. S.
35,
219 U. S. 42;
Bailey v. Alabama, 219 U. S. 219,
219 U. S. 238;
Luria v. United States, 231 U. S. 9;
Hawes v. Georgia, 258 U. S. 1,
258 U. S. 4.
[
Footnote 9]
Mobile, J. & K.C. R. Co. v. Turnipseed, supra, p.
219 U. S. 43;
Bailey v. Alabama, supra, 219 U. S. 239;
Lindsley v. Natural Carbonic Gas Co., 220 U. S.
61,
220 U. S. 81;
Luria v. United States, supra, 231 U. S. 25;
McFarland v. American Sugar Rfg. Co., 241 U. S.
79,
241 U. S. 86;
Manley v. Georgia, 279 U. S. 1;
Western & Atlantic R. Co. v. Henderson, 279 U.
S. 639,
279 U. S. 642;
Morrison v. California, 291 U. S. 82,
291 U. S.
90.
[
Footnote 10]
Bailey v. Alabama, supra, 219 U. S.
235.
[
Footnote 11]
Delia was convicted upon an indictment which charged,
inter
alia, receipt of ammunition.
[
Footnote 12]
McFarland v. American Sugar Rfg. Co., supra,
241 U. S.
86.
[
Footnote 13]
Morrison v. California, supra, 291 U. S. 94,
291 U. S.
96.
[
Footnote 14]
See Ferry v. Ramsey, 277 U. S. 88.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS concurs,
concurring:
I agree that the mere possession of a pistol coupled with
conviction of a prior crime is no evidence at all that the
possessor of the pistol has acquired it in interstate commerce or
obtained it since the effective date of the Act under
consideration. The Act authorizes, and in effect constrains, juries
to convict defendants charged with violation of this statute even
though no evidence whatever has been offered which tends to prove
an essential ingredient of the offense. The procedural safeguards
found in the Constitution and in the Bill of Rights,
Chambers
v. Florida, 309 U. S. 227,
309 U. S. 237,
stand as a constitutional barrier against thus obtaining a
conviction,
ibid., 309 U. S.
235-238. These constitutional provisions contemplate
that a jury must determine guilt or innocence in a public trial in
which the defendant is confronted with the witnesses against him
and in which he enjoys the assistance of counsel, and where guilt
is in issue, a verdict against a defendant must be preceded by the
introduction of some evidence which tends to prove the elements of
the crime charged. Compliance with these constitutional provisions,
which, of course, constitute the supreme law of the land, is
essential to due process of law, and a conviction obtained without
their observance cannot be sustained.
It is unnecessary to consider whether this statute, which puts
the defendant against whom no evidence of guilt has been offered in
a procedural situation from which he can escape conviction only by
testifying, compels him to give evidence against himself in
violation of the Fifth Amendment.