Section 1898-a* of the Penal Law provides that “ the presence in an automobile ***0f* * *a pistol * * * shall be presumptive evidence of its illegal possession by all the persons found in such automobile at the time such weapon, instrument or appliance is found.”
Has the Legislature the power to create such presumption in a criminal case from the facts stated in the section? It seems to me that it is a patent absurdity to say that the presence in an automobile of a pistol shall be presumptive evidence of its illegal possession by all the persons found in said automobile at the time.
Under our form of government it is fundamental that an accused may only be convicted in accordance with due process of law, and under due process of law an accused is not required to establish his innocence, but the People are required to establish his guilt. (See Code Crim. Proc. §§ 389, 393.)
Universally the guilt of the accused must be established beyond a reasonable doubt, which simply means that the facts proven must by virtue of their probative force establish his guilt. (See 5 Wig-more Evidence [2d ed.], §§ 2497 el seq., p. 464.)
It is a truism requiring neither argument nor demonstration to establish that the Legislature has not the power, nor has any other human agency the power, by fiat to make two plus two other than four; neither has it the power to give substance to shadows nor to declare that to be proof which inherently lacks probative force.
Prior to the enactment of said section 1898-a no one seems to have thought that the presence of several persons in an automobile containing a dangerous weapon was sufficient to establish possession of such weapon by any or all of the occupants of the car. If these facts were insufficient before the enactment of the section, how can the Legislature impart to such facts probative force which actually and inherently they do mot possess? Mere legislative fiat may not take the place of fact in the determination of issues involving fife, liberty and property. (Manley v. Georgia, 279 U. S. 1.)
Under this statute it would be possible to convict the defendant upon proof of the facts enumerated in the section and thus his conviction could be brought about upon facts not amounting to valid proof, because lacking probative force to support the presumption.
It seems self-evident that the Legislature has not the power to *469declare that certain facts shall be sufficient to prove the thing sought to be established, when it is apparent that such facts do not in reason and logic possess such inherent probative force and value; otherwise the Legislature might by fiat create a presumption which would permit the guilt of the defendant to be declared without actual proof thereof. There must be rational connection between the facts proven and the ultimate fact sought to be established. (See McFarland v. American Sugar Refining Co., 241 U. S. 79; Bailey v. Alabama, 219 id. 219; Mobile, J. & K. C. R. R. Co. v. Turnipseed, Id. 35; People v. Cannon, 139 N. Y. 32; Morrison v. California, 291 U. S. 82; Western & Atlantic Railroad v. Henderson, 279 id. 639; People v. Mancuso, 255 N. Y. 463; Board of Comrs. of Excise, etc., v. Merchant, 103 id. 143; Matter of Peck v. Cargill, 167 id. 395; People v. Hoch, 150 id. 309; People v. Courtney, 94 id. 493, 494; 2 Hale P. C. 289; People v. Galbo, 218 N. Y. 283, at p. 291.)
The orders herein should be reversed and the writs sustained.
Rhodes, McNamee and Ceapseb, JJ., concur in decision, with memorandums by both Rhodes and McNamee, JJ.; Hill, P. J., and Bliss, J., dissent on the following ground: We are unable to say that an automobile wherein a pistol is found is not so closely allied with present day criminality and criminal methods that the Legislature may not enact as an evidentiary rule that a presumption of possession arises against a person riding in an automobile so equipped.
Orders dismissing the writs of habeas corpus reversed on the law, writs sustained, and defendants discharged.
Added by Laws of 1936, chap. 390.— [Rep.