The presumption in the statute and upon which the government relies shifted the burden of going forward
but not the burden of persuasion.
It placed upon the defendant the task of producing credible evidence. Even uncontradicted defense testimony must go to the jury for evaluation unless the trial court does not apprehend directly or intuitively doubt of its credibility. This court envisaged doubt of the credibility of the defense. Specifically in the record we have the following: Three witnesses were offered for the defense, two of them had been convicted of crime, and one of said two, namely, the defendant, gave the only explanation as to how the gun had been acquired. His story that he received it from an "unfortunate" on the city dumps would test the credulity of the credulous.
Evidence which a judge finds -- a jury might disbelieve, does not destroy the presumption even though the presumption does not shift the burden of persuasion.
In the face of the presumption and facts and circumstances tending to cast suspicion upon the testimony and the witnesses, the credibility and relative value of the evidence offered by the defendant was for the jury.
We turn to the question whether there was adequate evidence to go to the jury on receipt of the gun by the defendant after July 30, 1938, the effective date of the statute.
Does possession subsequent to the effective date of the statute presume a receipt subsequent to July 30, 1938?
The defendant by his testimony and the testimony of his witnesses tried to establish that he had the gun prior to July 30, 1938.
The statute was intended to apply to existing guns.
When the draftsmen recognized the difficult task of proving the manner of acquisition, they undoubtedly recognized that it would be just as difficult to prove when a defendant received a gun
as how he received it. Therefore, they said "possession of a firearm * * * by any person shall be presumptive evidence that such firearm * * * was * * * received by such person in violation of this Chapter". The word "Chapter" is a reflexive reference to the statute as a whole.It refers to the Section
fixing the effective date just as it refers to the other Sections and it extends the presumption beyond evidence of activity in interstate or foreign commerce and includes when as well as how.
A presumption similar to the one in the Firearms Act is found in the purchase section of the Harrison Narcotic Act, 26 U.S.C.A. Int.Rev.Code § 2553, that possession of drugs without stamps "shall be prima facie evidence of a violation of this subsection". The presumption refers not only to the substantive crime of purchase but also to the venue of the purchase over the contention that the venue must be independently proved.
The defendant in the case at bar had the burden of coming forward with credible evidence showing possession of the gun prior to July 30, 1938, or lawful possession subsequent to July 30, 1938.
The motion to set aside the verdict of guilty is denied.
The defendant is to present himself to this court on Monday, December 15, 1941, at ten o'clock in the forenoon for sentence.