gambling, yet it is clear the statute does not give to the simple fact of such finding, when proved to the satisfaction of the jury, an effect either contrary to its nature, or which it in its nature has not a tendency to prove. It does, however, give to it an artificial effect, making it prima facie evidence of more than it would be without the statute.

There is no provision of our constitution that expressly prohibits this exercise of legislative power as to the rules of evidence, nor do we know of any one that is violated in its necessary implications by such an exercise of legislative power. We cannot declare a statute void simply because it may, in our opinion, be opposed to a spirit supposed to pervade the constitution, or because we may think it unjust or unwise or impolitic. Cooley's Const. Lim. (5th Ed.) pp. 199, 202, 205.

Legislation of the character in question, as to rules of evidence, is not without precedent, nor is its validity a question unadjudicated. In Com. v. Williams, 6 Gray, 1, Williams was indicted and convicted for being a common seller of spirituous and intoxicating liquors. The statute concerning the manufacture and sale of spirituous and intoxicating liquors, under which the indictment was found, provided, among other things, that "delivery in or from any store, shop, warehouse, steam-boat or other vessel, or any vehicle of any kind, or any building or place other than a dwelling-house, shall be deemed prima facie evidence of a sale." The trial judge instructed the jury that the delivery by the defendant of such liquors in his place of business, the same not being a dwelling-house, without evidence of payment therefor, was prima facie evidence of sale by the defendant, upon which they night find a verdict against him, unless explained or controlled by other evidence. It was contended, upon appeal before the supreme court, that the provision was unconstitutional, because it was unreasonable, contrary to the rules and principles of the common law, an encroachment upon the judicial department, and subversive of the right of trial by jury. The court held the statute to be constitutional; and the view taken of it is that it only prescribes, to a certain extent and under particular circumstances, what legal effect shall be given to particular species of evidence, if it stands entirely alone and is left wholly unexplained; that this evidence neither conclusively determines the guilt or innocence of the party who is accused, nor withdraws from the jury the right and duty of passing upon and determining the issue to be tried; that the purpose and effect of the clause of the statute are to simply give a certain degree of artificial force to a designated fact until such explanations are afforded as to show that it is at least doubtful whether this proposed statutory effect ought to be attributed to it, but the fact itself is still to be shown and established by proof sufficient to convince and satisfy the minds of the jurors; and if this proof is furnished, and the delivery of any quantity of spirituous liquor, in a place other than a dwelling-house, is fully shown, this will not be conclusive against the party charged with having made the sale of it; that making out a prima facie case does not change the burden of proof, but is only the result of that amount of evidence which is sufficient to counterbalance the general presumption of innocence, and warrant a conviction, if the fact so established be not encountered and controlled by other evidence tending to modify its effect, or to so explain it, as to render the statutory inference from it too uncertain and improbable to be relied upon; that the burden remains continuously on the government to establish the accusation charged in the indictment or information. Com. v. Kimball, 24 Pick. 373; Com. v. McKie, 1 Gray, 61.

In Com. v. Wallace, 7 Gray, 222, where the indictment was for an unlawful sale of spirituous and intoxicating liquors, it was again contended that the provision in question was unconstitutional, and applied only where a naked delivery was proved without any accompanying circumstances; and the trial judge was requested, inter alia, to so charge; but he refused, and instructed the jury that, if there was proved beyond a reasonable doubt a delivery of in

toxicating liquor by the defendant from any building or place other than a private dwelling-house or its dependencies, it would be prima facie evidence of a sale, and would warrant a conviction, but that the circumstances under which the delivery was made might rebut the presumption, or the presumption might be rebutted by proof. The supreme court overruled the exceptions taken to the instructions given. Com. v. Rowe, 14 Gray, 47, maintains the same doctrine, and that the burden is on the government to prove the sale beyond a reasonable doubt. See, also, Holmes v. Hunt, 122 Mass. 505.

A statute of Maine provided that whenever an unlawful sale of intoxicating liquor is alleged, and delivery proved, it shall not be necessary to prove a payment, but such delivery shall be "sufficient evidence of sale. This provision was held to be constitutional. "Delivery, in the absence of all other proof," says the court, "is made sufficient evidence of sale,-sufficient when no other proof is offered. It is open to disproof from every source. It may be explained by attendant circumstances. The party delivering is not estopped by the fact of delivery. *** The fact of delivery is deemed sufficient, if not explained by the circumstances accompanying the delivery, or if the inference is not negatived by disproof." State v. Hurley, 54 Me. 562.

In an act for the suppression of intemperance adopted in Connecticut in 1854, it was declared that proof of the finding of the liquor specified in the complaint in the possession of the accused, in any place except his private dwelling-house or dependencies, (or in such dwelling-house or dependencies, if the same be a tavern, public eating-house, grocery, or other place of public resort,) shall be received and acted upon by the court as presumptive evidence that such liquor was kept or held for sale contrary to the provisions of the statute. The supreme court of that state held the provision to be constitutional, and that its object was not merely to render such evidence admissible; for without the aid of the statute it might have been received, although other evidence to show such intent would have been necessary; that such proof, under the statute, was not conclusive of such intent, but merely presumptive evidence of it, and, as such, proper for the consideration of the jury, in connection with other evidence in the case; that the presumption of the innocence of the accused raised under the common law may be taken into consideration by the jury, but that the law does not make it sufficient to rebut the presumption of guilt authorized by the statute to be drawn from the finding of the liquor in the possession of the owner under the circumstances set forth in the statute. State v. Cunningham, 25 Conn. 195.

In this case an instruction to the jury that the statute, as matter of law, made evidence of the finding sufficient proof of guilt (thereby withdrawing from their consideration the question of intent of the accused as matter of fact) was held erroneous.

The necessity for legislation of the character involved in these adjudications arises from the difficulty to procure without it the evidence necessary to convict in such cases. The same necessity exists in the case to which the provision of the fourth section of our statute applies. As the legislature has not transcended its powers, it, and not we, are the proper judges of the necessity for and the suitableness of the remedial provision adopted. It cannot be said that a person who has kept the apparatus or devices denounced by the statute has not done so with knowledge of the effect which proof of the isolated fact of their being found in a room or house has as to the purpose for which such room or house is kept. If, notwithstanding the statute, he will still keep them, he must do so under such attendant circumstances as will of themselves, when proved by either the state or himself, overcome the statutory effect given to proof of the fact of their being found in the absence of such circumstances, or must be otherwise prepared to overcome the effect of the statute.

The case of State v. Divine, 4 S. E. Rep. 477, has been considered by us, but has not shaken our conclusions.

There was no error in the refusal to give the instructions asked.

(b) The effect of the charge given is: If the evidence satisfies the jury that the accused kept the room or other place in which the gambling implements are proved to have been found, proof of the fact of such implements having been found in the room is prima facie evidence that they are used for the purpose of gambling, and the law presumes that they were so used, and the burden of showing that they were not used for gambling purposes devolves upon the accused.

Though the statute has given to proof of finding the effect stated, as to the purpose for which the building is kept, it has not given to it the further effect of prima facie proof of actual use of these instruments, as another and independent evidence of the purpose for which the building is kept. It has not raised any independent presumptions as to the use of the instruments in aid of a conviction upon a charge for keeping a gaming-house or a house or room for the purpose of gambling. If there is nothing in the testimony of the state or of the defense to control the presumption which the statute authorizes to be drawn by the jury from the proof of the fact of the finding, they may infer from the proof of such fact that the room or house was kept for the purpose of gambling; but if there is any evidence whatever bearing upon the point of whether or not the implements were in fact used for the purposes of gambling, the jury are to consider it, and give to it such weight as in their judgment it is naturally entitled to. That they were actually used for the purpose of gambling the law does not itself presume, under any circumstances; but whether they were or were not so used it is for the jury to find, as a matter of fact, from the testimony, according as it may sustain the one or the other conclusion. The status of the instruments, or the circumstances surrounding them, may be such as to lead any reasonable jury to conclude, not only that the building was not kept for purposes of gambling, but that the custody of them by the owner or keeper of such building is entirely foreign to any actual use of them for gambling purposes. The instruction was erroneous, and should not have been given.

2. The judge was requested, but refused, to charge the jury that, before they could convict the defendant under this information, they must be satisfied from the evidence, beyond a reasonable doubt, that the defendant had the control or management of the room; that is, that he could regulate and control what was done there, and could have prevented the person or persons from playing if he had seen fit to do so.

By referring to the statute, in so far as the same is set out above, it will be seen that its first section expressly provides for the punishment of any person who shall have, keep, exercise, or maintain a gaming-room, or a house or other place for the purpose of gaming, whether he do so by "himself," or by "a servant, clerk, agent, or in any other manner." The second section of the statute provides "that any person acting as servant, clerk, agent, or employe of any person or persons, in the violation of section one of this act, shall, upon conviction, be punished in the same manner as provided in section one for the punishment of the keeper of a gaming-house."

The purpose of section 1 is to reach the case of a person who, within the meaning of section 1, has, keeps, exercises or maintains a gaming-house, or a room or house for the purpose of gambling; and such person as we understand the section is the one whose establishment or enterprise the gambling house is, whether he operate and manage it in person, or by a servant, clerk, agent, or in any other manner. He it is that is "the keeper of a gaminghouse," within the meaning of the statute. The object of the second section is to punish any person who may act as servant, clerk, agent, or employe of the person covered by the first section; or, in other words, any person who, as such agent, clerk, servant, or employe of the person meant by the first section, may carry on, operate, or manage a gaming-house, or room or house for

the purpose of gambling. One section is to reach the principal, and the other to cover the case of the agent.

The information before us, it is true, is based upon the first section; yet we are unable to see, even if it had appeared from the evidence that there was an arrangement between the defendant as principal, and his agent, servant, clerk, or employe managing the business for him, by which, as one of the terms of his employment, the latter was to regulate or control the operation of the business in the room, and to use his own judgment as to preventing persons from playing, that proof of such an arrangement would, of itself, either have prevented a conviction of a principal under the first section, or would defeat the prosecution, in case of a charge against one as an agent under the second section. There was no error in the refusal to give this instruction.

3. The judge was also asked to charge that the jury must be satisfied beyond a reasonable doubt, from the evidence in the case, independent of the above-stated fourth section, that the defendant was engaged in keeping, exercising, or maintaining a room for the purpose of gambling at the place charged in the information, either in person, by himself, servant, clerk, agent, or any other manner; and, if they were not also satisfied with the evidence beyond a reasonable doubt that the defendant was the person who had control of the room, and exercised such dominion over it that he could at any time have stopped the game, they must acquit.

The latter clause of this proposed instruction is disposed of by what is said as to the one discussed immediately above. The other clause of it is a correct proposition of law, and, had it been presented as a separate instruction, should have been given. We understand the meaning of this instruction to be that the jury must be satisfied from the evidence that the defendant was guilty of keeping and maintaining a room for the purpose of gambling under the first section of the act, and that the legal effect of section 4 was not to render inapplicable to the character of cases covered by it the general rule that the jury must be satisfied beyond a reasonable doubt, upon a consideration of the whole evidence, that the defendant kept, exercised, and maintained the gambling-room as charged. As, however, the entire instruction, in the form presented, also contained an incorrect proposition of law, there was, as has so often been held by this court, no error in the refusal to give it. It may be, too, that the charge given, as set out in the next subdivision of this opinion, was sufficient to cover as to proof, beyond a reasonable doubt, considered alone.

4. Another instruction refused by the court was as follows: The law in this case presumes, independent of section 4 of the statute in question, that every man is innocent, and that his place of business is conducted and used for legal purposes only; and this legal presumption of innocence is to be regarded by the jury in every case as a matter of evidence to the benefit of which the defendant is entitled."

The judge had already of his own motion charged the jury that "the law presumes every man innocent until he is proven guilty by proper legal evidence, and, if you have any reasonable doubt as to the guilt of the defendant arising from the evidence, you shall acquit him;" and, in addition to this, that "a reasonable doubt is not a capricious or whimsical doubt, but one arising naturally from the testimony; and, if the jury have such doubt as to the guilt of the defendant, he is entitled to the benefit of the doubt, and should be acquitted."

The instruction given was a correct exposition of the law. Its terms and meaning are such as to apply to the defendant the presumption of innocence of the offense charged, in all of its features, and they are broad enough to cover the use of his place of business specially mentioned in the charge requested. As to the special language of the instruction asked, that "this presumption of innocence is to be regarded by the jury in every case as a matter

of evidence to the benefit of which the defendant is entitled," we are of the opinion that there was no error in the failure of the judge to use it. It is true that Mr. Greenleaf uses the same language in one place in section 34, vol. 1, of his work on Evidence, and refers to State v. Pike, 49 N. H. 399. Considering the whole of section 34 and the New Hampshire case, we see nothing in either that makes the use of the language in question essential or indispensable, nor do we think its use would have strengthened the instruction given. The law presumes, according to all of the authorities, every man innocent, of any crime with which he may be charged, until and unless the testimony shows beyond a reasonable doubt that he is guilty of it. The charge is in the usual language, and is sufficient, and there was consequently no error in the refusal to give the one asked by the defendant's counsel.

5. There are in the record instructions which were asked involving the constitutionality of the fifth and sixth sections of the statute.

The former of these sections make it the duty of any sheriff or other police officer, when any such implements are found in any room or place used for the purpose of gaming, "to seize the same, and have them publicly destroyed in the street, in the presence of witnesses." The other section provides that if any sheriff, city marshal, or chief of police shall have good reason to believe that gambling is being carried on in any house or other place mentioned in the first section of the act, he may enter the same forcibly, if necessary, and without written warrant, and may arrest any person or persons violating this act.

Neither of these sections is in any wise practically involved in this case. Even admitting that they are unconstitutional, the validity of the first, second, and fourth sections is not in the least impaired by such fact. The former and latter sections are entirely independent of each other, and there is no room for the contention that the legislature would not have adopted the first, second, and fourth without the fifth and sixth, or that they are at all dependent upon each other.

6. The only point remaining for consideration is whether or not the error in the charge given to the jury, and discussed in the first subdivision of this opinion, is, considering the testimony, one from which it can be claimed that the defendant, in error has sustained any injury.

Whenever the proof of the finding of instruments in the room or other place is clear, and there is nothing in any part of the testimony adduced on the trial, by either the state or the defendant, of a nature to indicate in the least that such instruments were not used for gambling purposes, there is no reason why the jury should not conclude, as authorized by the statute, that the building was kept for the purpose of gambling. There is certainly nothing in the testimony before us of the character indicated. No inference, other than that the room was used for the purpose of gambling, is tenable. There is not a circumstance or a word tending towards the suggestion or idea that the gambling instruments were not kept for use, or actually used. It seems to us beyond doubt that the defendant could not have sustained any injury from the charge. That he was the keeper of, or maintained and exercised, the room, is sufficiently proved; that it was he, and no one else, is the only reasonable conclusion. The state's case is made out beyond a reasonable doubt, and the judgment should, in our opinion, be affirmed. Whart. Crim. Pl. § 796, note5; Brown v. State, 18 Fla. 472. Judgment is affirmed.

HOUSTON v. STATE.

(Supreme Court of Florida. October 8, 1888.)

1. CRIMINAL LAW-PRESUMPTION OF INNOCENCE-GAMING.

The provisions of section 4 of the act to suppress gambling-houses and gambling, approved June 7, 1887, making the finding of any implements commonly used in