192 U. S.

Argument for Defendants in Error.

The provisions of the penal code are wholly arbitrary, because they make an entirely innocent act a highly penal offense which the legislature has not the power to do. People v. Gillson, 109 N. Y. 389; Matter of Jacobs, 98 N. Y. 98; People v. Marx, 99 N. Y. 377; People v. Arensberg, 103 Ν. Y. 388; Forster v. Scott, 136 N. Y. 577. As to construction of this statute, see People ex rel. &c. v. Flynn, 72 App. Div. 67.

The presumption of guilt created by the statute thus eliminates all question of criminal intent, which, it would seem, is a necessary ingredient of the offense under sec. 344a. United States v. Carll, 105 U. S. 611.

An act which is not an offense against the New York laws, nor punishable by the New York laws, is made presumptive evidence of an offense against and punishable by such laws which is improper. State v. Beswick, 13 R. I. 211; Wynehamer v. The People, 13 N. Y. 378; State v. Kartz, 13 R. I. 328. It is like a bill of attainder. Cummings v. Missouri, 71 U. S. 277; Green v. Shumuay, 39 N. Y. 418.

Mr. Howard S. Gans, with whom Mr. William Travers Jerome was on the brief, for defendants in error:

The admission in evidence of the defendant's private papers does not present a Federal question, even though it be assumed that it involved an unreasonable search or seizure, or that it compelled the defendant to become a witness against himself in a criminal case.

The Fourth and Fifth Amendments to the Federal Constitution do not ex proprio vigore operate as limitations upon the powers of the several States, and nothing therein contained would affect the validity of a state statute compelling a person to be a witness against himself in a criminal case, or avowedly authorizing unreasonable searches and seizures. Thorington v. Montgomery, 147 U. S. 490, 492; Brown v. New Jersey, 175 U. S. 172, p. 174; Maxwell v. Dow, 176 U. S. 581.

The Fourteenth Amendment has not changed radically the relation of the Federal Government to that of the States and to the people, or extended to the state governments the restric

Argument for Defendants in Error.

192 U.S.

tions imposed upon the power of the Federal Government by the first ten amendments. Hurtado v. California, 110 U. S. 516; In re Kemmler, 136 U. S. 436, 448; Maxwell v. Dow, 176 U. S. 581.

Even if the provisions of the Federal Constitution prohibited the State of New York to authorize an unreasonable search or seizure, or to compel a person to be a witness against himself in a criminal case, the reception in evidence of the papers so seized would not constitute an invasion of the rights thus guaranteed.

It was lawful to seize and introduce in evidence against the defendant the manifold sheets themselves, and this neither constituted an unreasonable search nor compelled the defendant to be a witness against himself. Boyd v. United States, 116 U. S. 616, 623; Lawton v. Steele, 152 U. S. 133, 140. The constitutional provision which exempts a person from the obligation of becoming a witness against himself in a criminal case is not to be extended so as to prevent the use of papers or documents forcibly taken from his possession which may tend to assist in his conviction of crime. People v. Gardner, 144 N. Y. 119; People v. Van Wormer, 175 N. Y. 188, 195.

The law does not concern itself with the method whereby a criminal is brought to the bar, or, with some slight exceptions, with the means whereby evidence against him has been obtained. Greenleaf on Evidence, vol. 1, sec. 254a; Gindrat v. People, 138 Illinois, 103; Commonwealth v. Tibbetts, 157 Massachusetts, 519; State v. Van Tassel, 103 Iowa, 6; Chastang v. State, 83 Alabama, 29; Starchman v. State, 62 Arkansas, 538; State v. Flynn, 36 N. H. 64; Shields v. State, 104 Alabama, 35; State v. Atkinson, 40 S. Car. 363; Williams v. State, 100 Georgia, 511; State v. Kaub, 15 Mo. App. 433; Ruloff v. People, 45 N. Y. 213; Ker v. Illinois, 119 U. S. 436; Mahon v. Justice, 127 U. S. 700, 708.

Section 344a of the Penal Code is not in conflict with any of the provisions of the Fourteenth Amendment to the Federal Constitution. Lottery Case, 188 U. S. 321, 356.

The power of the State in furtherance of a public purpose to declare criminal even that which in itself is innocent, and

192 U. S.

Argument for Defendants in Error

to prohibit the possession of even a useful article is settled beyond question. The mere possession of fish or game or of the instrumentalities for their destruction may be prescribed and affected with criminal consequences. Phelps v. Racy, 60 N. Y. 10; People v. Buffalo Fish Co., 164 N. Y. 93; Lawton v. Steele, 152 U. S. 133, at p. 143; Geer v. Connecticut, 161 U. S. 519.

A fortiori as to the power of the State to prohibit the possession of instrumentalities of gambling, or other noxious pursuits. Stone v. Mississippi, 101 U. S. 814; Douglas v. Kentucky, 168 U. S. 488.

The provisions of 3446 making proof of possession prima facie proof that the possession was conscious is constitutional.

The legislature may enact that when certain facts have been proved, they shall be prima facie evidence of the existence of the main fact in question, provided the inference of the existence of the main fact, because of the existence of the fact actually proved, must not be merely and purely arbitrary or wholly unreasonable, unnatural or extraordinary. The connection between the fact proven and the fact in issue need not be that of inevitable inference, nor need the fact inferred be one which is within the exclusive knowledge of the person against whom the inference is drawn. People v. Cannon, 139 N. Y. 32; Cooley's Const. Lim. pp. 367, 369; State v. Cunningham, 25 Connecticut, 195; Wooten v. Florida, 1 L. R. A. 819; Com. v. Williams, 6 Gray (72 Mass.), 1; State v. Hurley, 54 Maine, 562; State v. Higgins, 13 R. I. 330; State v. Mellor, 13 R. I. 666, 669; Com. v. Kelly, 10 Cush. (64 Mass.) 69; Com. v. Tuttle, 12 Cush. 502; Meadowcroft v. People, 163 Illinois, 56; State v. Buck, 120 Missouri, 479; State v. Beach, 36 L. R. A. 179 Morgan v. State, 117 Indiana, 569.

The Federal Criminal Code includes numerous prima facie evidence provisions similar to the one here under discussion. See § 3082, Rev. Stat. as to effect of presumptions in regard of possession of smuggled goods. Tilley v. Savannah Ry. Co., 5 Fed. Rep. 641, 659.

It is within the acknowledged power of every legislature to prescribe the evidence which shall be received, and the

VOL. CXCII-38

effect of that evidence in the courts of its own government. Fong Yue Ting v. United States, 149 U. S. 698, 729; Marks v. Hanthorn, 148 U. S. 172, 182; Pillow v. Roberts, 13 How. 472, 476; Ogden v. Saunders, 12 Wheat. 212, 348.

Section 3446 is not class legislation because it applies a different rule to public officers. People v. Cannon, 139 N. Y. 32; People v. Stedeker, 175 N.Y.57; People v. Noclke, 29 Hun, 461, 466; S. C., affirmed 94 N. Y. 137.

MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court.

We do not feel called upon to discuss the contention that the Fourteenth Amendment has made the provisions of the Fourth and Fifth Amendments to the Constitution of the United States, so far as they relate to the right of the people to be secure against unreasonable searches and seizures and protect them against being compelled to testify in a criminal case against themselves, privileges and immunities of citizens of the United States of which they may not be deprived by the action of the States. An examination of this record convinces us that there has been no violation of these constitutional restrictions, either in an unreasonable search or seizure, or in compelling the plaintiff in error to testify against himself.

No objection was taken at the trial to the introduction of the testimony of the officers holding the search warrant as to the seizure of the policy slips; the objection raised was to receiving in evidence certain private papers. These papers became important as tending to show the custody by the plaintiff in error, with knowledge, of the policy slips. The question was not made in the attempt to resist an unlawful seizure of the private papers of the plaintiff in error, but arose upon objection to the introduction of testimony clearly competent as tending to establish the guilt of the accused of the offense charged. In such cases the weight of authority as well as reason limits the inquiry to the competency of the proffered testimony, and the courts do not stop to inquire as to the means by which the evidence was obtained. The rule is thus laid down in Greenleaf, vol. 1, sec. 254a:

"It may be mentioned in this place that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question."

The author is supported by numerous cases. Of them, perhaps the leading one is Commonwealth v. Dana, 2 Met. (Mass.) 329, in which the opinion was given by Mr. Justice Wilde, in the course of which he said :

"There is another conclusive answer to all these objections. Admitting that the lottery tickets and material were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done; but this is no good reason for excluding the papers seized as evidence, if they were pertinent to the issue, as they unquestionably were. When papers are offered in evidence the court can take no notice how they were obtained, whether lawfully or unlawfully; nor would they form a collateral issue to determine that question. This point was decided in the cases of Leggatt v. Tallervey, 14 East, 302, and Jordan v. Lewis, 14 East, 306 note, and we are entirely satisfied that the principle on which these cases were decided is sound and well established."

This principle has been repeatedly affirmed in subsequent cases by the Supreme Judicial Court of Massachusetts, among others Commonwealth v. Tibbetts, 157 Massachusetts, 519. In that case a police officer, armed with a search warrant calling for a search for intoxicating liquors upon the premises of the defendant's husband, took two letters which he found at the time. Of the competency of this testimony the court said :

"But two points have been argued. The first is that the criminatory articles and letters found by the officer in the defendant's possession were not admissible in evidence, because