Delon F. Mousaw for appellant.
Clarence J. Henry, District Attorney (
Alan M. Hill of counsel), for respondent. Nixon, Hargrave, Devans & Dey, amicus curiæ.
There exists in the law another presumption of fact that might well be applied to the proofs in this case and that is the presumption of the identity of a person from the identity of his name. This presumption is apparently much less liberal in criminal prosecutions than in civil cases but in
People v. Reese (258 N.Y. 89, 96), the court said: "Identity of name is not always sufficient in a criminal prosecution to show identity of person * * * but it may be accepted as sufficient if fortified by circumstances". The outstanding circumstance which identifies the defendant in this case as being the operator of the automobile is the undisputed evidence that he was the owner of the automobile. Presumptions of facts are constantly arising from the proof of other facts which move juries or courts to a determination. Because these presumptions are not classified into statute law does not weaken their force in the particular case. Presumption of guilt from possession of fruits of crime is a rule of evidence, as distinguished from a statutory rule, that has been adhered to by our courts for a long period of time. The application of this rule of evidence or of any other similar case law rule is not dependent upon the seriousness of the offense charged. The presumption of guilt from possession of the fruits of crime has been invoked not only in larceny, burglary and robbery cases but likewise in cases involving the charge of murder. (
Knickerbocker v. People of State of N. Y., 43 N.Y. 177, 183;
People v. Jackson, 182 N.Y. 66.) In the
Knickerbocker case, Judge PECKHAM speaking about the presumption of guilt from the possession of the fruits of crime said, "There is very little danger to the innocent from this rule of evidence which has been followed for centuries; innocence so readily asserts itself. Its abrogation would greatly weaken the power of criminal prosecutions, which are already sufficiently weak." The presumption of fact relied upon by the trial court to warrant the conviction of this defendant visits no hardship upon him for he is given the opportunity to explain away the said presumption and a rule has been established by the courts that when an unimpeached witness testifies distinctly and positively to an uncontradicted fact, such testimony should be credited and have the effect of overcoming the existence of a fact that is presumed. (
Elwood v. Western Union Tel. Co., 45 N.Y. 549.) The judgment of conviction is hereby affirmed. Submit order accordingly.