Defendants were convicted of the crime of being disorderly persons within the meaning of Act No. 328, Pub. Acts 1931, § 167; it being charged that, from March 15 to September 11, 1933, they were engaged in an unlawful occupation and business; in that they had combined and confederated *Page 644 with others into an illegal combination created for the purpose of conducting illegal business, to wit: violation of the extortion statutes; violations of the statutes governing the carrying of concealed weapons; violations of the robbery statutes, and violations of the murder statutes of the State of Michigan. Upon trial by jury they were convicted and sentenced to imprisonment for 90 days, that being the maximum penalty. The evidence against them consisted, in the main, of unsuccessful prosecutions for various crimes; records showing that Licavoli, in 1925, was fined $100 for carrying concealed weapons, served one year, commencing in June, 1929, for violation of the Federal prohibition law, and in 1930 he was charged with murder and acquitted. Practically the same proof, except imprisonment, was made against Bommarito. Police officers testified that defendants associated with men having the reputation of being murderers, stick-up men, bootleggers, and robbers, and had the reputation of being bootleggers, stick-up men, robbers, and murderers. No overt act was disclosed during the period charged. It is manifest from the record that defendants were convicted on evidence of repute under the following provision of the statute:
"Proof of recent reputation for engaging in an illegal occupation or business shall be prima facie evidence of being engaged in an illegal occupation or business."
The question before us at this time is whether that provision accords an accused "due process of law."
Defendants were convicted of having the reputation of engaging in an illegal business or occupation, and, therefore, were guilty, in fact and beyond *Page 645 a reasonable doubt, of being engaged in an illegal business or occupation. The presumption so declared by the enactment is not a rational deduction or inference from fact to fact, but an arbitrary fiat of the legislature. If proof of reputation for engaging in an illegal occupation or business is constitutedprima facie evidence of being engaged in an illegal occupation or business, and, without more, establishes guilt, then we are all agreed that the statute is unconstitutional because violative of "due process of law." We are divided, however, upon whether the statute so provides. Mr. Justice NORTH construes the provision to mean "that proof of recent reputation for engaging in an illegal occupation or business is competent proof thereof." I am of the opinion that the statute constitutes such proof of reputation prima facie evidence of guilt, and that such was and is its manifest purpose. I cannot read out of the statute the mandate carried by its express terms. It may be that the legislature, in the use of the term "prima facie evidence" did not fully comprehend the legal significance thereof, but such, if true, does not call for our correction. We must presume that the lawmakers acted advisedly in the use of legal terms. At any rate, we are supposed to understand the meaning of the term, give it force as employed, if valid in purpose and effect, and deny it the force of law if it is in violation of "due process of law."
The vice in this statute cannot be sterilized by the emasculation proposed by my Brother. Reputation, without regard to verity, is constituted prima facie evidence of guilt — not guilt of having such reputation, but guilt of the specified crime. The statute constitutes it a misdemeanor to engage in an illegal business or occupation, and creates repute *Page 646 or hearsay proof of being so engaged, not merely competent evidence, but prima facie evidence of being so engaged, and, without more, guilty of being so engaged. The statute constitutes extra-judicial utterances prima facie evidence of the ultimate fact of guilt. This takes no cognizance of the generic and strongest presumption known to the criminal law — that of innocence until guilt is established by competent evidence beyond a reasonable doubt.
But it is said that the statute should be so construed as to permit a jury to accept or reject such evidence. This would take the heart out of the enactment and render it too feeble to operate without substantive evidence. The purpose of the enactment is too plain not to be recognized, and its purpose, manifested by its language, is self-destructive. The statute does not provide for a mere inference from extrinsic, indicatory proof, but constitutes reputation of engaging in an illegal business or occupation sufficient, without more, to convict an accused of the crime of engaging in an illegal business or occupation.
The petty case at bar, and the claimed bad character of defendants, does not cause me to overlook the consequences of judicial sanction of the course of law prescribed by this enactment.
"The constitutionality of a law is determined, not alone by what has been done, but by what may be done, under its provisions." City of Watertown v. Christnacht, 39 S.D. 290 (164 N.W. 62, L.R.A. 1917 F, 903).
If this enactment is held valid, then a like rule of evidence and inference and prima facie presumption of guilt may be made applicable to cases of felony. *Page 647
Charges of felonious acts, based upon surmise, engendered by ill-will or love of notoriety, may be disseminated and create a reputation by hearsay, and the fact of such reputation, and not the foundation or truth thereof, is all that need appear in court. I cannot yield to an arbitrary rule that reputation of engaging in an illegal business or occupation is a fact and such fact may be shown and constitutes prima facie evidence of guilt. Under such a rule of evidence, no man's liberty is safeguarded, for malice, spite, gossip, unfounded accusation, slander and libel, resulting in reputation, will come into court under the guise of a fact, termed reputation, without inquiry as to the utterers or of knowledge had by them, and be solemnly declared prima facie evidence of guilt in accord with due process of law. The statement that reputation is a fact and the fact may be proved has been made before.
In Commonwealth v. Stewart, 1 Serg. R. (Pa.) 342, it was urged in a prosecution for keeping a disorderly house that the complaint of the neighbors was a matter of fact, and, therefore, when the witness proved the complaint she had only proved a fact within her own knowledge. But the chief justice said:
"I am not satisfied with this ingenious distinction, which gets round and avoids an important rule of evidence. In the same way all hearsay evidence may be introduced, for it is always a fact, that the witness hears the other person speak, and it is a fact that the words spoken by that person were heard by the witness. But what is the consequence of receiving testimony of this kind? The jury are influenced by declarations not made upon oath, and the adverse party is deprived of the benefit of cross-examining the person making those declarations. *Page 648 * * * It appears to me, that the evidence amounted to no more than the general reputation of a disorderly house, and certainly this is not one of the cases in which general reputation is evidence."
It must be remembered that defendants are not prosecuted for having a criminal reputation, but for committing a specific crime, wholly independent of any reputation, and the statute constitutes such reputation prima facie evidence of their guilt. If reputation were the offense denounced by the statute, then we would have a different question. Defendants were denounced by hearsay and convicted by inference drawn therefrom.
Suppose an enactment like this is made applicable to illegal acts under the banking law, and some person, over the radio, broadcasts accusation of violation and designates and denounces the object of his suspicion, how long would it take to create and fasten the reputation of having committed such an offense? Would it be considered "due process of law" not to call the accuser, or even his dupes, but sufficient to establish an illegal and criminal course of conduct by reputation of having engaged in such a course of conduct and constitute such a reputation prima facie evidence of guilt?
It was stated in Hammond v. State, 78 Ohio St. 15 (84 N.E. 416, 15 L.R.A. [N. S.] 906, 125 Am. St. Rep. 684, 14 Ann. Cas. 732), in holding a somewhat similar statute unconstitutional:
"If the general assembly, in order to make conviction easier under this act, can rightfully provide that one of the essential and constituent elements of the crime charged, viz., the unlawful character of the trust or combination, may be shown and made certain, by proof of common rumor, or general reputation, and the guilt of the accused be thus established *Page 649 it is difficult to see why it may not, with equal right, provide that murder, arson, or any other crime, may be thus established by proof that the person accused thereof is generally reputed to be the person who committed the same; a proposition at once so obnoxious and repugnant to the plainest principles of reason and justice, that none would yield assent to it. It is a matter of common and universal knowledge that bad reputation may, and oftentimes does, originate in malice, from mistake, or irresponsible rumor, and once suggested or set going, the rapidity with which such a reputation gathers vigor and volume is proverbial. Hence, as is very fittingly and appropriately said by Durfee, C.J., in State v. Kartz,13 R.I. 528, 531:
" 'To introduce into the law the principle that a person can be punished for what other people say about him, is to render all the constitutional safeguards of life, liberty, and property unavailing for his protection; for it is impossible to say to what purposes so pernicious a principle may not be applied if it is once permitted to take root.' "
In State v. Beswick, 13 R.I. 211 (43 Am. Rep. 26), there was involved an act of the general assembly constituting "the notoriously bad or intemperate character of persons frequenting" certain premises prima facie evidence that intoxicating liquors were kept on such premises. The court held the act unconstitutional, and stated:
"Suppose that the general assembly were to enact that if any person were generally reputed to be guilty of a murder it should be prima facie evidence that he was guilty, and that some citizen were convicted and sentenced to death or imprisonment on such evidence, because in the absence of rebutting evidence the jury had no option to acquit him. Could it be said that his life or liberty had been taken from him by the judgment of his peers? We think not. The judgment of the jury would not have been taken on the question of his guilt, but only on the question of whether or not he was generally reputed *Page 650 guilty. So under the statute here a man may be convicted of unlawfully keeping intoxicating liquors for sale, upon proof that his place of business is generally reputed to be a liquor shop, without the jury's actually passing any judgment on the question of his guilt."
But it is said that defendants were at liberty to rebut the presumption. This but emphasizes the fact that if an accused does not go forward with the proofs the presumption stands, without more, as evidence that he is guilty.
In State v. Lapointe, 81 N.H. 227 (123 A. 692,31 A.L.R. 1212), this question was evidently presented, for the court stated:
"It is said that so long as the defendant has preserved to him the right to fully present his defense, and then have the evidence weighed, he has nothing to complain of. But the right to make defense is not the whole right secured to one charged with crime. He has also the right to insist that before he can be found guilty there must be substantial evidence upon every fact essential to the establishment of his guilt, and that this evidence shall be weighed by the jury and found sufficient to prove the case. It is his right to decline to produce any evidence and to stand solely upon the proposition that the State must prove a case against him. * * *
"The rule of the Constitution is that the defendant in a criminal case cannot be compelled to go forward.
" 'The fact that he is charged with a crime gives him certain special privileges. Among these are the requirement of the State to prove the charge against him beyond a reasonable doubt; the constitutional prohibition of compelling him to accuse or furnish evidence against himself; the right to meet the witnesses against him face to face, and so forth.' * * *
"In a criminal prosecution, nonaction of the defendant cannot be substituted for action upon the *Page 651 part of the State, as to any matter required to be established as a part of the State's case. Neither the burden of proof nor the burden of proceeding with any evidence to prove such case can be imposed upon the party charged with crime.
"Most courts that have sustained these statutes as binding the judgment of the jury have done so upon the theory that all the legislature had undertaken to do was to prescribe a rule of evidence. As already pointed out, this is not the real purpose and effect of the legislation. It seeks to compel a party to go ahead in the case, to produce evidence, or else have the fact found against him as matter of law. It is a rule of procedure, and undertakes to take from the defendant rights guaranteed to him by the Constitution.
"It is herein that these statutes are fatally defective. By what authority can the legislature impose a burden upon the defendant for not producing evidence? One will search in vain through all the decisions for any answer. No doubt the statute gives the defendant full opportunity to present all the evidence, but that does not help the situation. These statutes were not designed for, and do not apply in, cases where other evidence upon the question is produced. They apply only to cases where there is no evidence save the statutory inference from fact A to fact B, and they say to the jury that the inference is inevitable. You must find fact B if you find that fact A is proved. * * *
"To stress this so-called privilege of the defendant to produce evidence, as so many courts have stressed it, is an entire perversion of the protection guaranteed to him. * * *
"It is his constitutional right not to produce evidence. Were it not for the array of cases denying the substance of this privilege, it would seem incredible that any one could suppose that it could be invaded by any legislation based upon a power to penalize the exercise of the right. Giving to him *Page 652 the right to produce evidence or not, is no substitute for his right not to produce it. The former is a privilege now generally conferred. But the latter is a fundamental right which neither legislatures nor courts are at liberty to impair. Conferring the privilege to produce cannot limit or in any way affect the constitutional right not to produce."
In my search I have found no such inattention to the guaranty of "due process of law," as evidenced by this enactment. Cases may be found authorizing prima facie presumption of guilt upon relevant indicatory proof, but the enactment under consideration does not provide for a mere presumption from indicatory proof but makes reputation of having engaged in an illegal business or occupation sufficient evidence to convict an accused of the crime of being engaged in an illegal business or occupation. The legislature, in enacting laws, must heed the provisions of the Constitution, for the Constitution is the law of laws, and the courts, in construing legislative enactments, must enforce constitutional provisions.
In Sarah Way's Case, 41 Mich. 299, it was said:
"The law of the land must be accepted by every one as the only rule which can be allowed to govern the liberties of citizens, whatever may be their ill desert."
In People v. Micalizzi, 223 Mich. 580, 582, Mr. Justice FELLOWS, speaking for the court, said:
"We are not concerned with the guilt or the innocence of this defendant. We are concerned with whether his constitutional rights have been invaded. Constitutions were written to be obeyed. Their provisions are mandatory. They protect the humblest as well as the powerful, the meanest as well as the upright." *Page 653
What is meant by prima facie evidence?
In Purity Ice Cream Dairy Co. v. Adams Express Co.,217 Mich. 593, we defined a prima facie case as:
"A case made out by proper and sufficient testimony; one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side," citing 31 Cyc. p. 1172.
"Prima facie evidence is such as in the judgment of the law is sufficient to establish the fact, and, if unrebutted, remains sufficient for that purpose." Atlantic Land Improvement Co. v. Lee, 93 Fla. 579 (112 So. 549).
The same holds true in criminal cases.
"Prima facie evidence is that degree of proof which, unexplained or uncontradicted, is alone sufficient to establish the truth of a legal principle asserted by a party." State v.Kline, 50 Ore. 426, 432 (93 P. 237).
In People v. Nemer, 218 Mich. 163, 166, it was held:
"Reputation is based on the 'speech of people,' 'what people say of a man.' "
The term "reputation" in the statute specially refers to criminal activity in the particular alleged in the complaint, and the legislature evidently intended the term "reputation" to apply to the common opinion, or that in which there is general concurrence — in other words, general reputation or character attributed. Such evidence is eminently a matter of hearsay.
It is urged that an emergency exists, and the end in view justifies the means provided by this statute. *Page 654 Like justifying of tyranny has left its sinister blot upon the pages of history and the lesson taught has led to constitutional provisions intended to withstand recurrence thereof.
The Constitution of this State, article 2, § 16, provides:
"No person shall * * * be deprived of life, liberty, or property, without due process of law."
In People v. Dickerson, 164 Mich. 148 (33 L.R.A. [N. S.] 917, Ann. Cas. 1912 B, 688), the court said of this provision:
"From an examination of the authorities, it is apparent that this constitutional guaranty simply preserves to the people rights which had existed for centuries, and which had been enjoyed according to the course of the common law. It means such an exercise of governmental power as is sanctioned by settled maxims of law, under such safeguards for the protection of individual rights as those maxims prescribed."
The court quoted, with approval, the definition of "due process of law," given by Daniel Webster, in the DartmouthCollege Case, 4 Wheat. (17 U.S.) 518, 581. No better definition can be found and we again quote it:
"By the law of the land is most clearly intended the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land."
In the Dickerson Case it was also stated: *Page 655
"It becomes pertinent, therefore, to ascertain what settled maxims, and safeguards — what 'general rules which govern society' — are applicable to a criminal prosecution such as is here under consideration."
The court held unconstitutional an act authorizing the trial court, in murder cases, to select expert witnesses.
In the case at bar the statute selects one instance, denounced as a misdemeanor, strikes down two rights which had existed for centuries, both sanctioned by settled maxims and the settled course of the common law. The statute dignifies into legal proof of guilt evidence of reputation that an accused has offended by engaging in an illegal occupation or business. The legislature may not declare reputation primafacie evidence that an accused has committed a crime without showing that a crime has, in fact, been committed. This act relieves the prosecution from establishing guilt of an accused beyond a reasonable doubt, for, unless the accused enters upon a defense, the prima facie presumption authorizes a conviction, and his right to the presumption of innocence, which is the most universal and strongest presumption known to law, is accorded no place for consideration.
The statute brings conflict of presumptions. The statute creates prima facie evidence of guilt out of proof of reputation.
American law accords an accused the presumption of innocence, and due process of law requires that, before a conviction be had, this presumption must be removed by evidence establishing guilt beyond a reasonable doubt.
" 'Due process of law' does not mean 'the general body of the law, common and statute, as it was at *Page 656 the time the Constitution took effect; for that would deny to the legislature the power to change or amend the law in any particular. Neither, on the other hand, does "the law of the land" or "due process of law" mean anything which the legislature may see fit to declare to be such; for there are certain fundamental rights, which our system of jurisprudence has always recognized, which not even the legislature can disregard in proceedings by which a person is deprived of life, liberty or property. * * * Although the legislature may at its pleasure provide new remedies or change old ones, the power is nevertheless subject to the condition that it cannot remove certain ancient landmarks, or take away certain fundamental rights which have been always recognized and observed in judicial procedures.' When the law of the land is spoken of, 'undoubtedly a preexisting rule of conduct' is intended, 'not an ex post facto rescript or decree made for the occasion. The design' is 'to exclude arbitrary power from every branch of the government; and there would be no exclusion if such rescripts or decrees were to take effect in the form of a statute.' " 2 Cooley's Constitutional Limitations (8th Ed.), p. 737.
Due process of law " is from the Roman Maxims and the re-affirmation of this in Magna Charta. Hurtado v. California,110 U.S. 516 (4 Sup. Ct. 111).
The enactment in question is unconstitutional.
The appeal is allowed, and defendants admitted to bail.
McDONALD, C.J., and POTTER and BUTZEL, JJ., concurred with WIEST, J. FEAD, J., concurred in the result.