¶1dissenting. Appellant James Stone was convicted of possessing heroin, a controlled substance, with intent to deliver contrary to Ark. Stat. Ann. § 82-2617 (Supp. 1971), as amended. For reversal he contends that the trial court erred in instructing the jury in accordance with Act 68 of 1972.
¶2Section 1, Article IV, Act 590 of 1971 (Ark. Stat. Ann. § 82-2617), makes possession of a drug with intent to deliver a felony. Mere unlawful possession is only a misdemeanor. Act 68 of 1972 provides:
“SECTION I. Section 1 of Article IV of Act 590 of 1971 is hereby amended by adding a new subsection at the end thereof to read as follows:
“(d) Rebuttable Presumption. Possession by any person of a quantity of any controlled substance listed in this subsection in excess of the quantity limit set out herein, shall create a rebuttable presumption that such person possesses such controlled substance with intent to deliver in violation of Section 1 (a) and (b) of this Article. Provided, however, the presumption provided for herein may be overcome by the submission of evidence to create a reasonable doubt that the person charged possessed a controlled substance with intent to deliver in violation of Section 1 (a) and (b) of this Article.
Heroin.— 100 milligrams
Opium. 5 grams
Morphine. 300 milligrams
Cocaine. 2 grams
Codeine. 600 milligrams
¶3The stipulated facts upon which this record is before us shows that appellant had 1200 milligrams of heroin in his possession. The trial court instructed the jury as follows:
“Possession by any person of a quantity of Heroin in excess of 100 milligrams shall create a rebuttable presumption that such person possesses such Heroin with intent to deliver, provided, however, the presumption provided for herein may be overcome by the submission of evidence sufficient to create a reasonable doubt that the person charged possessed Heroin with intent to deliver in violation of law.”'
¶4The brief writers have not favored us with any expertise as to the dosage of heroin for either medication purposes or addiction. In a book entitled Narcotics and Narcotic Antagonists by Francis F. Folder, M.D., Mark Swerdlow, M.D. and Ephraim S. Siker, M.D., it is pointed out at page 183 that heroin is two to four times as potent as morphine. At page 86 the authors state:
"After prolonged use very high doses of narcotics may be tolerated by addicts. The usual daily dose of morphine in long standing addiction is in the range of 2 to 3 gr., but in a verified case as much as 5 gm. were used daily and 2 gm. of morphine were injected intravenously in 0.25 gr. increments within two and one half hours to an addict without any appreciable deleterious effect. The degree of tolerance, however, is not limitless. Fatalities among narcotic addicts occur not infrequently from overestimation of the tolerated dose.”
¶5The same authors point out at page 138 that the normal dose of codeine in adults is 30 to 60 milligram. A common pill sold under the trade name of Empirin No. 3 contains 30 milligram of codeine.
¶6Statutes such as that involved here which make one fact evidence of another fact have been before the courts on numerous occasions. Apparently most of the state courts, except Rhode Island, see State v. Beswick, 13 R. I. 211 (1880), at first, took a rather liberal view of such statutes. See State v. Kelly, 218 Minn. 247, 15 NW 2d 554, 162 A.L.R. 477 (1944). The Minnesota court criticizes these early decisions in this language:
“The pragmatic test focuses on the end in view rather than on the means applied. The rights of the individual are sacrificed because it is thought that the welfare of society demands it. In the many cases which have sustained statutory presumptions in connection with prosecution for violation of liquor laws, it is evident that the decisions are based upon the wholesome desire to enforce the liquor laws rather than on reason and experience. In their labored effort to sustain these statutes under any and all circumstances as a proper exercise of legislative control over evidence, many state courts have abjured all adherence to the Bill of Rights, as if it were a mere scrap of paper. ...”
¶7The early state court cases were not always unanimous. For instance in Commonwealth v. Williams, 6 Gray, Mass. 1, 9 (1856), construing a statute making the delivery of spirituous liquor prima facie evidence of a sale, Mr. Justice Thomas, in a dissent, made the following criticism of the rebuttable presumption.
“. . . Upon the proof of a fact, equally consistent with the innocence, as with the guilty of accused, it infers and presumes his guilt. Upon the proof of an act which the law nowhere forbids or censures, and which is, in and of itself, without meaning, it takes from the accused the presumption of innocence, and calls upon him for his defence; his defence not to the thing proved, but to the thing not proved, the thing the government has failed to prove, to wit, a sale.”
¶8After state courts had approved such legislative presumptions as to liquor violations, the state legislatures started enacting similar presumptions to other conduct. For instance Georgia enacted a banking law which provided:
“Every insolvency of a bank shall be deemed fraudulent, and the president and directors shall be severally punished by imprisonment and labor in the penitentiary for not less than one (1) year nor more than ten (10) years; provided that the defendant in a: case arising under this section, may repel the presumption of fraud by showing that the affairs of the bank have been fairly and legally administered, and generally, with the same care and diligence that agents receiving a commission for their services are required and bound by law to observe; and upon such showing the jury shall acquit the prisoner.”
¶9In Manley v. State of Georgia, 279 U.S. 1, 49 S. Ct. 215, 73 L. Ed. 575 (1929), this statute was held violative of the due process clause, of the Fourteenth Amendment. In so doing the United States Supreme Court said: “Mere legislative fiat may not take the place of fact in the determination of issues involving life, liberty or property.”
¶10In Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943), the statute before the court provided:
“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.”
¶11The court pointed out that there was no connection between the fact proved and the presumed fact in common experience, and in holding the act violative of the due process clause, said:
“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 the 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 between the two in common experience. 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. 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.”
¶12In Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), there was before the court of California a law that permitted comment upon the failure of the accused to testify in his own behalf. The California trial court, pursuant to such law, had instructed the jury:
“As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.”
¶13In holding this violative of the Fifth Amendment, the court said:
. . The question remains whether, statute or not, the comment rule, approved by California, violates the Fifth Amendment.
“We think it does. It is in substance a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify. No formal offer of proof is made as in other situations; but the prosecutor’s comment and the court’s acquiescence are equivalent of an offer of evidence and its acceptance. ...”
¶14Tn United States v. Romano, 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965), upon a charge of “possession, custody and control of an illicit still” in violation of 26 U. S. C. 5601 (a) (1), the trial court had in accordance with 26 U. S. C. 5601(b) (1), instructed the jury that the presence of the defendant at the site of an illegal still “shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury.” In holding the statute void, the Court said:
“The test to be applied to the kind of statutory inference involved in this criminal case is not in dispute. In Tot v. United States, 319 U.S. 463, the Court, relying on a line of cases dating from 1910; reaffirmed the limits which the Fifth and Fourteenth Amendments place ‘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. . . .
“. . . Presence tells us only that the defendant was there and very likely played a part in the illicit scheme. But presence tells us nothing about what the defendant’s specific function was and carries no legitimate, rational or reasonable inference that he was engaged in one of the specified functions connected with possession, rather than in one of the supply, delivery or operational activities having nothing to do with possession. Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant’s function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt — ‘the inference of the one from the proof of the other is arbitrary. . . .’ ”
¶15In Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), the charge was knowingly transporting marihuana which had been illegally imported. The statute also provided:
“Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.”
¶16After consulting the authorities to the effect that some marihuana is grown in the United States, the court in holding the presumption invalid said:
“The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”
¶17In a concurring opinion, Mr. Justice Black pointed out that the statutory presumption permitted Leary to be convicted without being confronted with the witnesses against him.
¶18In Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970), Turner was convicted on two counts relating to heroin and two counts relating to cocaine. The first count on heroin charged that Turner violated 21 U.S.C. § 174 by receiving . . . and facilitating the transportation of heroin knowing that it had been unlawfully imported. The second count charged that Turner purchased, possessed and distributed heroin not in or from the original stamped package in violation of 26 U.S.C. § 4704(a). Identical charges were made with respect to the cocaine. At the trial the Government presented the evidence of the seizure of the drugs from Turner but presented no evidence of origin. On the § 174 counts the trial judge charged, in accordance with the statute, that the jury could infer from Turner’s unexplained possession of the heroin and cocaine that he knew that it had been unlawfully imported. On the § 4704(a) counts, the trial judge read to the jury the statutory provision making posession of drugs not in a stamped package prima facie evidence that Turner purchased, sold, dispensed or distributed the drugs not in or from a stamped package. The Court again consulted the authorities from which it determined that cocaine was manufactured in this country but that heroin was neither produced nor manufactured in this country. Upon these facts the Court concluded that the possession of heroin was equivalent to the possession of “imported heroin.” The § 174 conviction for knowingly receiving and transporting heroin that he knew was illegally imported was upheld. The Court after characterizing the § 4704(a) heroin charge as one “of purchasing in or from an unstamped package” also upheld that conviction. In so doing the Court was careful to make the following clarification:
“Moreover, even if the evidence as to possession is viewed as not in itself proving that Turner was distributing heroin, his conviction must be affirmed. True, the statutory inference, which on this assumption would assume critical importance, could not be sustained insofar as it authorized an inference of dispensing or distributing (or of selling if that fact had been charged), for the bare fact of possessing heroin is far short of sufficient evidence from which to infer any of these acts. Cf. Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943); United States v. Romano, 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965). But the inference of purchasing in or from an unstamped package is another matter.”
¶19The Court held the statutory presumptions invalid as to the cocaine charges. In discussing the presumption with respect to the § 4704(c) cocaine count, the Court said:
“Since Turner’s possession of cocaine did not constitute an act of purchasing, dispensing, or distributing, the instruction on the statutory inference becomes critical. As in the case of heroin, bare possession of cocaine is an insufficient predicate for concluding that Turner was dispensing or distributing. As fór the remaining possible violation, purchasing other than in or from the original stamped package, the presumption, valid as to heroin, is infirm as to cocaine.
“While one can be confident that cocaine illegally manufactured from smuggled coca leaves or illegally imported after manufacturing would not appear in a stamped package at any time, cocaine, unlike heroin, is legally manufactured in this country; and we have held that sufficient amounts of cocaine are stolen from legal channels to render invalid the inference authorized in § 174 that any Cocaine possessed in the United States is smuggled cocaine. . . . Similar reasoning undermines the § 4704(a) presumption that a defendant’s possession of unstamped cocaine is prima facie evidence that the drug was purchased not in or from the original stamped container. The thief who steals cocaine very probably obtains it in or from a stamped package. There is a reasonable possibility that Turner either stole the cocaine himself or obtained it from a stamped package in possession of the actual thief. The possibility is sufficiently real that a conviction resting on the § 4704(a) presumption cannot be deemed a conviction based on sufficient evidence. . . .”
¶20The State Courts, that have had an occasion to discuss the subject of statutory presumptions since the Tot case, supra, have arrived at the same conclusions reached by the United States Court. See Sharp v. Commonwealth, 213 Va. 269, 192 S.E. 2d 217 (1972), wherein the court held invalid a statute that permitted the jury to convict one in possession of marihuana with intent to distribute upon the sole evidence of possession. A strong and rather thorough discussion can be found in State v. Kelly, 218 Minn. 247, 15 N.W. 2d 554, 162 A.L.R. 477 (1944). Under the laws of Minnesota possession of intoxicating liquor was permitted and made lawful in both wet and dry counties. Another statute provided:
“The finding of any such intoxicating liquors in the possession of any person, by means of search warrant shall be prima facie evidence that such person had possession of such liquors for the purpose of selling. . . without having obtained a license.”
¶21In holding this statute invalid the court among other things said:
“It has been well stated that presumptions of law— at the best, uncertain instruments in the investigation and discovery of truth — are especially dangerous, in the administration of criminal justice, when used to control or impair the natural fundamental presumption of innocence; their effect being to give to evidence a technical probative force beyond that which it would naturally and ordinarily possess, in pro-ducting conviction in the minds of the jury. . . .
“. . . [T]o hold that a legislature can create artificial presumptions of guilt from facts which are not only consistent with innocence, but which are not even a constitutent part of the crime when committed, is to hold that it has the power to take away from a judicial trial, or at least substantially reduce in it, the very element which makes it judicial. . . .”
¶22The Indiana Supreme Court had before it presumptions dealing with the possession of an unregistered firearm in Powers v. State, 204 Ind. 472, 184 N.E. 549 (1933), and with embezzlement of bank deposits in Walter v. State, 208 Ind. 231, 195 N.E. 268, 98 A.L.R. 607 (1935), long before the Tot case, supra.
¶23In Powers v. State, supra, the charge was murder and the plea was self defense. The prosecution proved that the defendant’s weapon was an unregistered firearm and to sustain its admissibility relied upon the following statute:
“In the trial of a person charged with committing or attempting to commit a felony against the person or property of another while armed with a pistol or revolver, without having a permit to carry such firearm as hereinbefore provided, the fact that such person was so armed shall be prima facie evidence of his intent to commit such felony.”
¶24The court pointed out that the shooting, if unlawful, could not be justified by a permit to carry a pistol, and, if the shooting was necessary to protect the appellant from death or great bodily harm, he was not required to forego protecting himself and suffer death or great bodily harm merely because he was carrying his pistol without a permit. In holding the statute invalid and the evidence inadmissible, the court said:
“Enactments, such as the one under consideration, seek to establish a weight for certain evidence as affecting criminal intent. The authorities here cited . . . give no support to the theory that the legislature has any such power. We agree that an enactment which would make a fact prima facie evidence of crime which has no relation to a criminal act, and no tendency to establish a criminal act, would be unconstitutional. But we must go farther and hold that before a proven fact can constitute prima facie evidence of criminal intent, it must be sufficient of itself to sustain a conviction without support of statutory enactment. We cannot agree with the proposition that if the legislature gives a party a fair opportunity to establish his defense, and give evidence, the enactment is constitutional. Such a rule would require a defendant to prove himself innocent, notwithstanding the evidence against him,, unsupported by legislative enactment, would not be sufficient to sustain a verdict of guilty.”
¶25The subsequent case of Walter v. State, supra, involved an Indiana statute defining the crime of embezzlement to include a bank officer who received a deposit when the bank was insolvent. The same statute also provided that the failure, suspension, or involuntary liquidation of the bank within thirty days after the time of receiving the deposit, which is charged to have been embezzled, shall be prima facie evidence of intent to defraud. In holding the prima facie presumption invalid the court said:
“Section 19, of article 1 of the Constitution of Indiana provides: ‘In all criminal cases whatever, the jury shall have the right to determine the law and the facts.’ It has been repeatedly held, and is well settled, that it is error for the court in a criminal action to instruct the jury what evidence will be sufficient to establish any ultimate fact. Such an instruction is an invasion of the constitutional right of the jury to determine the facts for itself. The Legislature has no more right to invade the province of the jury than the court, and it cannot invest the court with power to invade the constitutional province of the jury. The giving of the instruction referred to was error.”
¶26The Constitution of the State of Arkansas, Art. 7, § 23 has a similar provision which provides: “Judges shall not charge juries with regard to matters of fact, but shall declare the law. . . .” While we have had no occasion to interpret this provision with respect to statutory presumptions, it has been applied to common law presumptions such as the possession of recently stolen goods. See Mays v. State, 163 Ark. 232, 259 S.W. 398 (1924), wherein the trial court upon a charge of receiving stolen property, instructed the jury, “. . . that the finding of stolen property in the possession of another, shortly after the said property had been stolen, raises a presumption of guilt as against the person in whose possession the same is found, but that this presumption is a rebuttable one, and that, if this possession is explained to the satisfaction of the jury, the presumption is overcome. . . .” We there held that such presumptions constituted an invasion of the province of the jury contrary to the aforesaid constitutional provision. Other courts have arrived at similar conclusions upon presumptions from flight of the accused. See Hickory v. United States, 160 U.S. 408, 16 S. Ct. 327, 40 L. Ed. 474 (1896).
¶27Thus it appears to me that the statutory presumption here is invalid under the due process clause, the Sixth Amendment right to confrontation of witnesses and the Fifth Amendment right to remain silent. Furthermore, under the interpretation given to the act by both the trial court and the State in the trial of this case, the act also violates Art. 7 § 23 of our Constitution which prohibits comments on the weight of the evidence. See Reno and Stark v. State, 241 Ark. 127, 406 S.W. 2d 372 (1966).
¶28The anomaly of the majority’s position can be demonstrated by the fact that hereafter all such cases will be tried before a jury — the jury may not know about the statute whereas defense counsel can be certain that in a trial before the judge the judge will certainly be aware of the inference.
¶29For the reasons herein stated I respectfully dissent.