Evening capital news. (Boise, Idaho) 1901-1927, 1912-09-18

Provisions Of the Search and
Seizure Law Are Involved
in Case Judge Dunn =
Reversed.

Judge James G. Gwinn Of the Ninth
judicial district for Fremont county
was reversed today through an opinion
handed down by the supreme court in
the case of the state OF Idaho versus
w. II. Adams, an action representing 8.
prosecution for maintaining nuisance
in keeping liquors for sale or disposal
at Adams place OF business in a proc
hibited district The opinion Is writ
ted by Justice Ailshie and concurred
In by Chief Justice Stewart and Justice
Sullivan. Adams was convicted and
appealed from the Judgment.
The syllabus Of the. court is>as fol-
lows:
1. In a prosecution for maintaining
common nuisance by keeping intoxi-
eating liquors in prohibition district
at any place other than private
dwelling house, the possession Of such
liquors by one not having a lawful
authority to sell or dispose OF the Same
Is prima facie evidence that such II
quorts are kept for sale or disposition
in violation of law. and the proof of
such possession at any place other
than in private dwelling house shifts
the burden of proof to the defendant
to show that his possession was law-
full.
2. An instruction which tells the
jury that. 'if therefore, you should find
from the evidence In this case beyond
reasonable doubt. that intoxicating
liquors were found at the place Of
business Of the above named defendant
as alleged In the complaint, the burden
of proof is on the defendant to prove
that such intoxicating liquors were
kept and used for a lawful purpose.
land In the absence of any such proof
on the part of the defendant showing
that such Intoxicating liquors, II any
liquor was found at his place Of BUSH
ness. was kept and used for a lawful
purpose, then In that event you should
find the defendant guilty." Is erroneous
and prejudician to a defendant, in that
It takes from the jury the right to con-
slider and weigh the evidence for them
selves and determine Its credibility
and the circumstances involved In tho
case and accompanying the possession
of such intoxicating liquor.
3. Where statute, such as section
3. chapter 10, OF the 1911 Session Laws
(1S11 Session Laws, page 49,. provides
that when the possession of intoxicat-
Ing liquors Is shown, such fact Is
"prima facie evidence that such intoxi-
eating liquors are kept for SALE. the
statute means that such prima facie
presumption or prima facie evidence Is
sufficient to go to the jury to prove
such facts and that such possession
will be sufficient to support verdict
on that particular fact: but 1t does not
mean that such evidence Is conclusive,
and binding upon the Jury and that it
is their duty to bring in verdict
against the defendant where such a
prima facie case only is made and 1t is
error to instruct a jury that under
such circumstances they should bring
in a verdict OF guilty.
4. A statute providing that the proof
of a certain fact shall constitute prinia
facie evidence Of the existence OF a cer-
tain other fact, such statute merely
shifts the burden of proof on TO the
adverse party, and in the absence of
proof to the contrary leaves the pre-
sumption both OF fact and law against
such party,