For the plaintiff in error, William J. Egan and Robert L. Hood.
For the defendant in error, William A. Wachenfeld and C. William Caruso.
Before Brogan, Chief Justice, and Justices Bodine and Heher.
BODINE, J. The plaintiff in error was convicted in the Essex Quarter Sessions of the crime of unlawfully receiving stolen property in violation of R.S. 2:164-1. The statute provides that possession within a year from the date of theft shall be deemed sufficient evidence to authorize conviction. Assuming that the legislature merely meant to clarify the common law doctrine that unexplained possession of goods recently stolen raised a presumption that they had been illegally received and imposed a duty upon the possessor to explain his possession, we are then brought to a consideration of the charge of the trial judge with respect to this matter. He said the accused "would have a defense, if you [the jury] were satisfied as a matter of defense, and you [the jury] would not have to be satisfied beyond a reasonable doubt, but by a preponderance of the evidence, that he came into possession of these goods under the circumstances, indicated by the statute in any of its four subtitles or divisions; that is, &c."
The accused clothed with the presumption of innocence must be convicted by proof beyond a reasonable doubt. The legislature may, of course, declare that certain facts create a presumption, if the presumption be reasonable, and requires an explanation; but if the explanation given, whether established by a preponderance of the evidence or not, created a situation so that the jury cannot say that the state has established guilt beyond a reasonable doubt the accused would be entitled to an acquittal. Sherlock v. State, 60 N.J.L. 31; State v. Parks, 96 Id. 360; State v. Headley, 113 Id. 335; State v. Kaplan, 115 Id. 374; State v. Vliet, 120 Id. 23. The foregoing principle of law was not embodied in the court's charge. The charge was erroneous and misleading in that the explanation offered might create in the minds of the jurors a reasonable doubt of the guilt of the accused, even
though the explanation was not established by the preponderance of evidence.
The statute under review, if regarded as doing no more than indicating the manner in which a presumption of guilt from proof of possession of stolen property within one year from the date of theft, may be rebutted, deprives the citizen of no constitutional guaranties but merely enacts a rule of evidence well within the general power of government. Mobile, &c., Railroad v. Turnipseed. 219 U.S. 35. On the other hand, if the statute requires the defendant to establish a defense when certain facts are proved, then it is an improper exercise of legislative power. We do not think it does the latter. The burden of proof can never shift from the state, but the burden of going forward by reason of the legislative presumption may fall upon the defendant. If the jury at the close of the case have a reasonable doubt as to the guilt of the accused, they must be instructed to acquit. State v. Lax and Stern, 71 N.J.L. 386.
We have, notwithstanding, that the validity of the statute in question was not challenged in the court below on constitutional grounds, considered the argument made and conclude that the statute was a valid exercise of legislative power.
"According to some decisions, the unexplained possession of goods recently stolen raises the presumption that they had been illegally received and imposes on accused the burden of explaining such possession, and the presumption of guilt so raised is sufficient to sustain a conviction. This presumption, it is said, applies as well to a person charged with unlawfully receiving as to one charged with its original taking. * * * The term 'recent' as used in this connection, it is said, is a relative term and whether the possession is recent within the rule stated depends largely on the circumstances of the particular case." 53 Corp. Jur. 528.
"Where an accused person is charged with receiving property recently stolen, after the prosecution have proved possession by the accused and that the property has been recently stolen, the jury should be told that they may, not that they must, ...