dissenting: It was admitted that the ordinance of the City of Raleigh regulating the parking of automobiles in congested areas of the city, enacted pursuant to power conferred by the General Assembly, was in full force and effect at the time the defendant was charged with overtime parking in violation of this ordinance. Neither the constitutionality nor the propriety of the one hour parking limit was brought in question.
The ordinance contains this provision: “It shall be unlawful for any person to cause, allow, permit, or suffer any vehicle registered in his name, *29or under Ms control, to be parked overtime or beyond tbe lawful period of time.”
The defendant admits that at the time and place alleged in the warrant, in a space duly designated and marked in accordance with the ordinance, the automobile belonging to him and duly registered in his name and bearing his identifying license plates issued by the State and city, was parked for an overtime period in violation of the ordinance. Upon evidence offered to this effect, and with no evidence contrathe defendant was found guilty of violating the ordinance.
The only question raised is whether these facts afford any evidence of sufficient probative value to be submitted to the jury on the question of violation of the ordinance by the defendant. According to the majority opinion these facts are insufficient to raise an inference — a permissible deduction from the facts shown — that the admittedly unlawful parking of an automobile admittedly belonging to the defendant, was caused or permitted by him, or by his authority, or by someone for whom he was legally responsible.
The principal ground upon which the majority opinion rests is that there is no legislative enactment specifically declaring that these facts constitute prima, facie evidence of guilt.
Numerous decisions have been written by this Court defining the meaning and extent of the phrase prima facie evidence. The epitome of these decisions is aptly stated by Chief Justice Stacy in Vance v. Guy, 224 N.C. 607: “A 'prima facie case’ means and means no more than evidence sufficient to justify, but not to compel an inference of liability, if the jury so find.” Is there such a relation between the facts admitted and the ultimate fact to be established as to authorize but not require the jury to find that fact? Or, as stated by Mr. Wigmore, are the facts in evidence such as would justify men of ordinary reason and fairness in affirming the question at issue ? But I think we have here not so much a question of statutory presumption or inference as a matter of circumstantial evidence. A shoe track identified as having been made by the defendant’s shoe at the time and place of the crime is competent against him without having to negative the possibility that someone else may have borrowed and worn his shoe. Likewise, possession of stolen goods shortly after the larceny raises an inference dedueible from those facts that the possessor is the thief. S. v. Weinstein, 224 N.C. 645. The salutary rule that in criminal actions the evidence must satisfy the jury beyond a reasonable doubt is one for the guidance of the jury and not the court. The court’s province is to decide whether there be any evidence, more than a scintilla, of the defendant’s guilt. If there is, it becomes a case for the jury.
*30When the policeman tagged the defendant’s automobile for overtime parking and notified him to appear in court to answer the charge that he had caused or permitted his automobile to be parked overtime, he acted on the same facts as we now have before us. The inference properly deducible from these facts, nothing else appearing, created in his mind the conviction that the defendant’s automobile, identified by his individual license plates, was parked overtime in the limited area by the defendant’s act or with his knowledge and consent. It “carried the case to the jury” in his mind, and so would it in the mind of the average man on the street. The facts here shown, unexplained and unrebutted, should not be dismissed as having no probative force.
The purpose of evidence is the ascertainment of truth as the basis for the administration of justice. It is a step in the process of persuasion. The rules of evidence as we have them today do not depend upon legislative authority. From the beginning, certainly since the advent of trial by jury upon the testimony of witnesses, the rules as to the competency, quantum and legal effect of evidence have been in large measure crystallized from the decisions of the courts, based on reason and human experience. In more recent times these rules have been sanctioned, altered, amended or abrogated by statute. But specific legislative authority is not essential to determine the competency or legal effect of evidence. Many rules of evidence applicable to particular circumstances have been established in the absence of statute.
The only reference to be found in our statute on the question of inferences or permissible deductions from the ownership of an automobile is contained in Chap. 494, Laws 1951, which makes ownership of an automobile prima facie evidence that it was being operated at the time of an accident by or for the owner, and that, the person operating it was acting for the owner and in the scope of his employment. True, this only applies to civil actions, but it is expressive of the legislative will that the owner of an automobile should be held to answer for infractions of the rules of civil conduct caused by the agency he has set in motion, without being permitted to escape by reason of the absence of more specific evidence impracticable to obtain. If ownership be evidence to hold him for a civil injury, why not also for an injury to the State and the city?
Here we must consider, in addition to admitted ownership of the illegally parked automobile, the language of the ordinance which makes it unlawful to “permit” a vehicle “registered in his name” to stand — to remain — in a prohibited area, for an unlawful period of time.
Many of the rigid rules of the common law and those prescribed by statute have given way to a more liberal interpretation, as conditions and circumstances change, in obedience to reason and the common experience of men. Indeed, some of the rules now in force in North Carolina might *31well be re-examined. A million and a quarter motor vehicles traverse the streets and highways of the State, and doubtless in time all of them seek a place to park somewhere on a public street. Raleigh has probably 20,000 vehicles belonging to its citizens, plus a substantial increment from daily visitors. Considering the limited areas for business and shopping, interminable confusion, discrimination, and injustice would result but for a definite and well understood means of regulating traffic and parking. To strike these provisions down by invoking a rule of evidence of doubtful application would have the effect of nullifying the ordinance and would practically destroy the power to enforce it, and would leave unregulated motor traffic not only in Raleigh but in practically every city and town in North Carolina. That the Legislature did not append a rule of evidence to the power conferred on the city ought not be held to destroy its effectiveness. The General Assembly doubtless acted on the assumption that the courts could handle traffic law violations without the necessity of legislative enactment prescribing additional rules of evidence. The absence of such a rule should not render the ordinance futile.
To hold this evidence sufficient under the circumstances here shown to go to the jury would offend no constitutional provision. It would serve to conform to the consensus of judicial authority and to the practical interpretation of an act almost universally observed. For ten years and more, and until shortly before the appeal in this case was undertaken, the enforcement of the ordinance was unquestioned, and evidence such as here shown was deemed sufficient to make a prima facie case. This has been the practically universal rule so far as I know of municipal authorities and municipal courts in this State and throughout the country.
This is the first ease to come to this Court, but the question has been considered by courts of last resort in other states, and these with singular unanimity have sustained conviction for parking violation on similar evidence. The diligence of counsel for the defendant has resulted in finding only eight reported cases on this question from seven different states, viz.: Massachusetts, New York, Rhode Island, Illinois, Kentucky, Michigan, and Missouri, all of which have reached practically the same conclusion. Not a single one of these cases supports the defendant’s view. The decisions referred to are from courts of recognized authority, and Avhile not compelling here are persuasive, and suggest to my mind that the reason underlying those decisions ought to prevail here.
Let us briefly examine those cases and the reasons for the conclusions reached.
In Commonwealth v. Ober, 286 Mass. 25, the conviction of the defendant for violation of a traffic regulation almost identical with ours, and upon evidence that an automobile registered in the name of defendant was parked overtime in a limited area, was upheld. The Court said: *32“Tbe reported evidence established a prima facie case which was not met by evidence offered by the defendant.”
In People v. Rubin, 284 N.Y. 392, for violation of a similar ordinance and on substantially the same evidence'conviction of the defendant was sustained. In answer to the defendant’s contention that there was no direct proof that the unlawful parking was done by the defendant, the Court said: “To rule that this inference may not be drawn from the established facts would be to deny to the trier of the facts the right to use a common, process of reasoning.” Proof of ownership and unlawful parking was thought to afford a sufficient basis for the inference of personal conduct.
In City of Chicago v. Crane, 319 Ill. App. (1943), 623, conviction of the defendant for parking near a fire hydrant was upheld upon showing that the automobile so parked in violation of the ordinance belonged to the defendant and bore his license plate. The Court said: “When it appeared from the stipulation of facts that defendant owns the car that was parked near the fire hydrant, the City made out a prima facie case against him,” citing the Massachusetts, Kentucky, Michigan, and New York cases.
In People v. Marchetti, 276 N.Y.S. 708, it was held that upon evidence of ownership of the automobile and its legal parking the prosecution could rest the case upon a presumption that the operation was by the owner. The Court said: “Presumption need not always be provided for by statute.”
In Commonwealth v. Kroger, 276 Ky. 20, 122 S.E. 2d 1006, where conviction was upheld, there was a proviso in the ordinance that overtime parking of an automobile should be prima facie evidence that the violation of the ordinance was committed by the owner, but it was held that without that proviso in the ordinance the conviction would have been upheld. The Court said: “Independently of the enacted presumption, the circumstances (similar to those here) stipulated and agreed to are amply sufficient under the general law of evidence — of ancient and uninterrupted declaration — to support a conviction or the establishment of the principal fact by circumstantial evidence.”
In People v. Kayne, 286 Mich. 571, it is interesting to note that the evidence showed that of the automobiles found parked overtime in Detroit 95.6% had been parked by the owner or by an immediate member of his family. In that case conviction for overtime parking was sustained, but there the state had the benefit of a statute that registration plates displayed on the automobile constituted a prima facie presumption that the owner parked the automobile.
In City of St. Louis v. Cook, 359 Mo. 270, conviction for parking in violation of the ordinance was upheld, but there the ordinance provided *33that the presence of a vehicle in violation of the ordinance was prima facie evidence that the person in whose name registered had committed the act. The Court, however, called attention to the cases in which it was held that independent of such a rule of evidence the inference that the owner was responsible for unlawful parking was reasonable and sufficient.
In State v. Morgan, 72 R.I. 101, the conviction of the defendant for violation of a traffic regulation on proof only that his automobile was parked illegally was upheld, the Court being evenly divided in opinion on the question of the sufficiency of the proof that the automobile was parked by or for the defendant.
The case of S. v. Lloyd, 233 N.C. 227, is cited in the majority opinion in support of the position taken. In that case involving the question of the identity of the driver of a speeding automobile nonsuit was sustained. But it will be noted that evidence of the defendant’s ownership of the automobile in that case was coupled with evidence, offered by the State, that the defendant denied he was present at the time of the offense charged but was in the city of Durham.
This precise question has never been heretofore considered by this Court, but it seems that in other jurisdictions upon the same facts as here admitted, the courts of last resort there have found no difficulty in sustaining convictions for violation of traffic regulations. I had hoped this Court might be influenced by the same reasoning to reach the same conclusion. There is ground for apprehension that the result of the decision in this case on efforts to enforce traffic regulations will be unfortunate, not only in Raleigh but in every city and town in the State in which ordinances have been adopted and enforced to cope with the problem in the public interest. The city has no means of avoiding this situation, for it is not endowed with power by ordinance to prescribe a rule of evidence for the courts. It is suggested that the remedy lies with the General Assembly, but nearly a year must elapse before a new rule of evidence in such cases can be promulgated. In my opinion it is within the power of this Court to declare the legal inferences deducible from the facts proven as applicable to cases of this kind, in view of the nature of the offense, the public purpose sought, and the impracticability of obtaining better evidence. There is a rational connection between the ownership of an automobile for which individual license to operate upon the public streets has been granted, and the actual use of it by the owner in the operation and parking of that automobile which should justify the inference deducible from that ownership, when the automobile is shown unlawfully parked, that this was caused or permitted by or for the owner.
It has been said that parking meters are silent policemen, but unfortunately they cannot testify in court, and we must depend upon circumstantial evidence for the enforcement of these regulations.
*34The courts do not make the laws nor do they declare public policy. Their decisions are based on principles of law regardless of the outcome, but while conforming to these principles consideration should be given any sound reason which would authorize the exercise of police power in the interest of good order and public safety. Laws are the tools the community uses to effectuate its ideals, and these tools should not be rendered ineffectual save for reasons which are sound and incontrovertible.
In view of the importance of the enforcement of the traffic regulations adopted by the City of Ealeigh to prevent public mischief, whether the facts admitted be regarded as making out a prima facie case, or permitting a reasonable inference of guilt, or as affording circumstantial evidence which should carry the case to the jury, in my opinion the Court should hold that they were sufficient to warrant consideration by the jury, and, in the absence of evidence co.nira, to support the verdict and judgment. My vote is that the judgment below should be affirmed.
JOHNSON, J., dissenting: The prima facie rule with which we are dealing is not a creature of the Legislature. It is of judicial origin under application of the scintilla doctrine, as a limitation on jury trial. In basic theory, it is for the Court to determine, rather than for the Legislature to prescribe, what does or does not constitute a prima facie case.
The books are full of decisions of all sorts in nonsuit cases, civil and criminal, applying the scintilla rule as part and parcel of the doctrine of prima facie case as designed wholly and solely by judicial handiwork, with no semblance of any statutory rule of evidence or fixed legislative presumption coming into play.
Therefore, assuming, as seems to be conceded in the majority opinion, that the formula needs change to fit the situation here presented, it seems to me that the Court should do the job.
My vote is to affirm in accordance with the views expressed in the dissent of Chief Justice Devin.