The legislature, in making the finding of spirituous liquors, under certain circumstances, in the possession of a person, presumptive evidence of a keeping of them with intent to sell, undoubtedly intended to give greater effect to such evidence, than it had at common law. It is not to be presumed that the legislature intended to pass an unnecessary statute.
The object could not have been merely to render it admissible, for without the aid of the statute it might have been received, although other evidence to show the intent would have been necessary. Nor is it made conclusive proof of such intent, but merely presumptive evidence, and as such, proper for the consideration of the jury in connection with the other evidence in the case.
Hence it has been asked, can a sexton of a church, having in his possession wine to be used at the communion table, be convicted of an unlawful intent? Clearly not, the character of the possessor, the ownership of the wine, and other circumstances may completely rebut the presumption of guilt. But although he may hold that office in the church, yet, like any other person, he may be convicted of the charge of keeping wine for sale, if the jury should be satisfied, that the evidence proved the charge.
So a carman, who is found carrying along the streets a cask of liquor, may rightfully be acquitted of an intent to violate the statute, if the jury should be satisfied from the evidence, that he was merely exercising the business of a common carrier. Or he might be convicted of an offence *202against the statute, if the jury believed he was transporting it for the purpose of perfecting a sale.
With what intent a person keeps intoxicating liquors, is always a question of fact for the jury, to be determined upon a view of all the evidence. And in disposing of that question, they are required by the statute to consider the keeping of the articles in the manner specified in the statute, as presumptive evidence of an unlawful intent. But that evidence may be rebutted and controlled by the circumstances, as would be the case in the instances of the sexton and carman alluded to, as well as by other evidence in the case, whether shown by the accused in his defence, or by the state in connexion with the evidence proving the possession.
With such evidence, the jury may also take into consideration the presumption of the innocence of the accused.
It has been said that the keeping of spirituous liquors is a lawful act, and being such, the legislature has no constitutional power to make it evidence of an unlawful act. Many acts at common law are lawful, and yet the performance of them is prohibited by the legislature, in the legitimate exercise of their sovereign power.- Even the sale of such liquors is not by the common law unlawful. It is only made so by statute. And if the legislature can constitutionally prohibit such sale, we see not why they may not properly prescribe what acts shall be considered as evidence of an intent to make the sale.
The legislature may say that the possession of stolen goods in a place of concealment, or the possession of counterfeit coins, under certain circumstances, shall be prima facie evidence of a criminal intent, and throw the burden of proof upon the accused, although other evidence may show that such possession was perfectly lawful.
As is well said by Bennett, J. “ It is only founding a presumption upon our own experience of human conduct, and rests upon the same basis as that which makes a receipt for the last quarter’s rent, prima facie evidence of the payment of the rent which had previously accrued.”' 27 Verm. R.. 357.
*203The power of giving greater effect to evidence, than it possessed at common law, has been frequently exercised by legislatures. Thus in a case of a seizure under the law of Congress of 1792, in which it was provided, that if property be claimed by any person in any such case, the onus probandi should be upon the claimant where probable cause was shown on the part of the prosecution ; it was holden that the statute meant less evidence than would otherwise justify a condemnation, and that probable cause shown for the prosecution, was sufficient to rebut the presumption of innocence, and throw the burden of proof upon the claimant. The Lumi» nary, 8 Wheat., 407.
In another case before the supreme court of the United States, it appeared that the district judge had instructed the jury that proof that an Indian trader had carried ardent spirits into an Indian country, and had them with his other goods, was prima fads evidence of their having been carried there in violation of a law of Congress, and threw upon the trader the burden of proof, although the judge, at the same time told the jury that he might lawfully carry them there for some purposes, as for medicinal use. And this ruling was said by judge Washington, who delivered the opinion of the supreme court, to have met their entire approbation. American Fur Company v. United States, 2 Peters, 358.
If such evidence at the common law, is prima facie evidence of an unlawful extent, so as to throw the burden of proof upon the accused, we see not why the legislature may not well say, that proof of those facts mentioned in the statute shall be deemed presumptive evidence of a like intent, nor why the circumstances detailed by the judge in his charge to the jury in the present case, may not be considered prima facie evidence in support of the complaint against the defendant.
With respect to the constitutionality of the statute generally, we refer to the opinions given in the two cases in New Haven county, which were heard shortly after the arguments in the present case. State v. Brennan's Liquors. State v. Wheeler, post.
Such in our opinion being the law upon the subject, the *204next enquiry is, whether the case in the court below, was properly submitted to the jury.
They were told thatif upon the evidence, they believed that the prisoner was the keeper of a grocery store, a place of public resort for trade, that the liquor charged in the information to have been found therein, was found in the possession of the prisoner in such store in such place and manner as liquors are usually kept for sale, the law makes such finding sufficient evidence of the intent of the prisoner to sell the same in violation of the ninth section of the statute, unless that evidence is rebutted by evidence going to show a different intent, and, in the absence of any explanations of the purpose for which the same was so kept, the jury might lawfully found a conviction thereon.
Now, if we are to consider the charge of the judge as a mere commentary upon the evidence, accompanied with an expression of his opinion, that if the jury found the facts to be as detailed by him without any rebutting or explanatory evidence, they might lawfully found a conviction thereon, we see nothing objectionable in the charge. The facts thus detailed were undoubtedly very strong evidence of the guilt of the accused, and in. the absence of any rebutting testimony, in our opinion, were abundantly sufficient to justify the jury in rendering their verdict.
But if the judge is to be understood as saying, that the statute, as matter of law, makes such evidence sufficient proof of guilt, thereby withdrawing from the jury the consideration of the question of the intent of the accused as matter of fact, which is the construction which both parties give to the charge, then my brethren are of opinion that the instruction was erroneous. And they are the more inclined to think that the jury did so understand the charge, from the expression that the law makes such finding sufficient evidence of the intent to sell, whereas the statute merely makes it presumptive evidence.
I should not have given this construction to the charge, but for the reason stated, my brethren are of opinion that a new trial ought to be granted.
*205In this opinion, the other judges, Storrs and Henman, concurred, except as to the construction given by the Chief Justice to the charge of the court below.
New trial to be granted.