(dissenting).
Because I think the majority opinion is a departure from long-established principles and because I think those principles are of very great importance in the administration of criminal law, I feel compelled to dissent and to state the reasons which impel me to do so.
Ezzard was convicted of being a dealer in narcotics without registration as such or payment of the required tax. The sole question presented to this court is the sufficiency of the evidence to sustain the conviction. The majority opinion deems the eyidenee not sufficient and holds that the trial court should have instructed a verdict. The government showed and the defendant admitted possession of a trunk containing a very large amount of narcotics. The government relied upon the statutory provision that possession of such drugs should be “presumptive evidence” of guilt. The defendant sought to explain his possession as innocent. That explanation, if true, would have exonerated him. No witness was introduced by him who knew anything about the trunk of drugs or about the character of defendant’s connection with it. Other witnesses testified concerning the good character of defendant and corroborated him on two material points, to wit, the purpose of his trip into town and his offer, at the time of arrest, to take the officers to the camp and find the woman who had requested him to get the trunk. While this testimony as to character and in corroboration was important, yet the utmost value it could have would be its support of the truth of the story told by defendant. In the end, his defense rested and was based upon his own evidence. He alone testified as to the circumstances surrounding and to the character of his possession of the .trunk and drugs.
*813The peculiar province of a jury is to determine issues of fact from the evidence presented to it. The determination of issues of fact from evidence involves two matters: First, the truth of the evidence; second, the relative value to he accorded such evidence as is deemed true. The first is called credibility of the evidence; the second, weight of evidence. Each of these is for the exclusive determination of the jury unless there is an absence of reasonable difference of opinion concerning either. The rule is well stated and supported by numerous citations in 16 C. J. 932, § 2294, as follows:
“Legal Sufficiency of Evidence to Go to Jury. — -Whether there is a legal sufficiency of evidence in support of the material issues of the case which will warrant its submission to the jury is a question of law for the court, in determining which it is only necessary that there should be so much proof as to make it proper to submit the evidence to the jury, and not that the court should be satisfied beyond a reasonable doubt. Where, however, there is any evidence, however slight, on which the jury may justifiably find the existence or the nonexistence of material facts in issue, and the evidence is conflicting, or of such a character that different conclusions as to such facts reasonably may ho drawn therefrom, the issues should be submitted to the jury for determination, oven though the court does not believe the evidence, or is of the opinion that it is not sufficient to convict, or is doubtful whether the evidence presented will be convincing to the jury. In such a case it is error for the court to take the issue from the jury by dismissal or nonsuit, or by the direction of a verdict, or by excluding the evidence from the jury. But where there is no evidence on an issue of fact, or where the evidence is legally insufficient to sustain a finding as to such fact, or where it creates only a suspicion or conjecture, or is undisputed and of such a character that only one inference reasonably can be drawn therefrom, the question becomes one for the determination of the court as a matter of law and should not be submitted to the jury; and the court should dispose of it without the intervention of a jury as by sustaining a demurrer to the evidence, by dismissal or non-suit, or by directing a verdict.”
Here a prima facie case of guilt, justifying submission to the jury, was made by admitted possession and the statutory requirement that such possession should ho “presumptive evidence” of violation of the statute. Had there been no more evidence, the ease must have gone to the jury upon that showing. The "presumptive evidence,” placed in the case by the positive language of the statute, required the defendant to meet and overcome — to rehut — that presumption. Mugler v. Kansas, 123 U. S. 623, 674, 8 S. Ct. 273, 31 L. Ed. 205; Lilienthal's Tobacco v. United States, 97 U. S. 237, 268, 24 L. Ed. 901; Spurr v. United States, 87 F. 701, 706, 31 C. C. A. 202 (6th C. C. A.). Which, judge or jury, is to determine when sufficient evidence has been introduced to rebut this “presumptive evidence?” If that evidence is so conclusive both as to credibility and as to weight that there can he no reasonable doubt that the possession was innocent, then the court may so declare; hut if it fails to reach this conclusive standard, either as to credibility or as to weight, tlie ease should go to the jury. Here, the defendant has offered an explanation of innocent possession which is entirely sufficient to rebut the “presumptive evidence” of guilt, if his testimony be true. The trial court recognized this and abundantly protected defendant by charging that “if the defendant did not have knowledge of the contents of the trunk, or the jury has a reasonable doubt whether that was the case, then he is entitled to be acquitted.” The difference between the position of the trial court and of the majority of this court is that the trial court left it to the jury to determine whether defendant was telling the truth while the majority here holds that the trial court should have accepted that testimony as true. The credibility of a witness depends upon many things. All of these are clearly before a trial court and jury but some of them can never be reflected from there into an appellate court. At the trial, the witnesses have to convince the eye as well as the ear. The appearance and demeanor on the stand a^o important helps in passing upon the credibility of a witness. Such helps are never available in an appellate court. But there are some considerations affecting credibility which are as appreciable in the appellate court as in the trial court. One of those is that the interest of the witness in the result of the litigation may affect or even destroy his credibility. Obviously, the above considerations are very applicable to a defendant facing an indictment for a felony. While I have the greatest respect for the views of the majority, I cannot escape the conclusion that the practical effect thereof here is to deny any force to these long-established and very effective moans of testing credibility.
The statutory presumption is by no means a puny thing to be lightly brushed aside. *814Besting upon its basic fact of possession shown, it warrants, though .not compelling, conviction. It makes out a prima facie ease. The practical purpose of the statute is to compel the accused — who alone knows all of the facts concerning his possession — to produce such explanatory evidence that the jury will have a reasonable doubt as to his guilt. If that result is, as matter of law, conclusively accomplished when any accused person presents a plausible story with no direct corroboration as to the character of possession but only as to some attendant circumstances, any practical value of the “presumptive evidence” becomes doubtful, if not negligible. Usually, the prosecution cannot know, in advance- of the introduction of evidence by defendant, what ■ explanation of possession will be made nor by what witnesses, nor how corroborated nor by whom. The chance to combat such testimony is ordinarily a minimum. Therefore, the more important to allow the trial judge and the jury to exercise their function of passing upon the credibility of the testimony. I think the above view is supported by Yee Hem v. United States (April 27, 1925) 45 S. Ct. 470, 69 L. Ed. ——; Bram v. United States, 282 F. 271 (this court); Pierriero v. United States, 271 F. 912 (4th C. C. A.); Baender v. United States, 260 F. 832, 171 C. C. A. 558 (9th C. C. A.); and Gee Woe v. United States, 250 F. 428, 162 C. C. A. 498 (5th C. C. A.). Also, see Charley Toy v. United States, 266 F. 326, 329 (2d C. C. A.), and Dean v. United States, 266 F. 694 (9th C. C. A.).
A second ground for the majority opinion is that where all of the substantial evidence is as ebnsistent with innocence as guilt it is the duty of the appellate court to reverse a judgment of conviction. With the rule of law thus announced, I. have no quarrel but I can see no place for its application here. This entire matter must rest and rest alone upon the credibility of the accused. If his story is true there is no need for applying the above rule. If it is false there is no place for the rule because there is no evidence consistent with innocence. If credibility of the evidence has nothing to do with the applicability of the rule; if the rule is operative wherever the entire evidence — whether it be true or not — is consistent with innocence, then the statutory presumption has and can have no real force at all because any evidence of innocent possession must always be consistent with possession itself — in fact, it admits and is based upon the premise of possession.
I cannot escape the conclusion that the view of the majority is an invasion of the province of the trial court and of the jury in a field (credibility of witnesses) peculiarly belonging to them and where they are best qualified to reach correct conclusions, and that it emasculates the statutory requirement here involved to nothingness,