Carton, Kole and Larner. The opinion of the court was delivered by Larner, J.A.D.
Defendant was convicted in the Rockaway Township Municipal Court of the disorderly persons offense of tampering with an electric meter, in violation of N.J.S.A. 2A:170-64. In a de novo trial on the record in the Morris County Court he was again found guilty.
Defendant's appeal is addressed solely to the constitutionality of a provision of the foregoing statute which permits the existence of certain conditions relating to the electric meter and its wiring to constitute "presumptive evidence" that the person to whom the electricity is furnished has created or caused the creation of the prohibited act with intent to defraud. Since this statutory evidence rule was a factor in defendant's conviction, he contends that the presumption is unconstitutional and the conviction should be set aside.
The Public Advocate and the Jersey Central Power & Light Company argued as amici curiae , the former attacking the constitutionality of the act and the latter supporting its validity. The question of the constitutionality of the presumption created by this statute has not been determined in any reported opinion since its adoption in 1938.
For the purpose of clarity it is appropriate to set forth the statute verbatim:
Any person who, without permission or authority, connects or causes to be connected by wires or other devices, any meter erected or set up for the purpose of registering or recording the amount of electric current supplied to any customer by any vendor of electricity within this state, or changes or shunts the wiring leading to or from any such meter, or by any device, appliance or means whatsoever tampers with any such meter so that the meter will not measure or record the full amount of electric current supplied to such customer, is a disorderly person.
The existence of any of the conditions with reference to meters or attachments described in this section is presumptive evidence that the person to whom electricity is at the time being furnished by or through such meters or attachments has, with intent to defraud, created or caused to be created with reference to such meters or attachments, the condition so existing; provided, however, that the presumption shall not apply to any person so furnished with electricity for less than 31 days or until there has been at least 1 meter reading. [ N.J.S.A. 2A:170-64]
The creation of statutory presumptions in aid of the State in criminal and quasi -criminal prosecutions is not uncommon as a tool of fairness and convenience in the trial process. In the main it is based upon the rationale that, in the context of human experience, "proof of fact B (the proved fact) establishes a presumption of the truth of fact A (the presumed fact)." See Doe v. Trenton , 143 N.J. Super. 128, 131 (App. Div.), certif. granted 72 N.J. 466 (1976).
Such statutory presumptions have been considered by the United States Supreme Court and the New Jersey Supreme Court in the context of other offenses. See Turner v. United States , 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970); Leary v. United States , 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969); Tot v. United States , 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943); State v. Humphreys , 54 N.J. 406 (1969); State v. DiRienzo , 53 N.J. 360 (1969); State v. Lewis , 93 N.J. Super. 212 (App. Div. 1966). The significant test of constitutionality under due process is whether the particular factual inference permitted by the statute can be said to be a rational one based upon human experience. As delineated by the United States Supreme Court in Leary v. United States, supra:
[A] criminal statutory presumption must be regarded as "irrational" or "arbitrary," and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. [395 U.S. at 36, 89 S. Ct. at 1548, 23 L. Ed. 2d at 82]
The same standard of constitutionality was expressed by our Supreme Court in State v. DiRienzo, supra , in affirmative terms to the effect that "it must be more likely than not that the facts proven point to the fact inferred." 53 N.J. at 376. If it cannot be said with substantial assurance that the presumed fact is "more likely than not" to flow from the proved fact, the statutory inference or ...