author: Mr. Justice Brennan Mr. Justice Douglas,

text:
    FREEDMAN v. MARYLAND.
    No. 69.
    Argued November 19, 1964.
    Decided March 1, 1965.

      Felix J. Bilgrey argued the cause for appellant. With him on the brief were Richard C. Whiteford and Louis H. Poliak.

      Thomas B. Finan, Attorney General of Maryland, argued the cause for appellee. With him on the brief were Robert F. Sweeney and Roger D. Redden, Assistant Attorneys General.

      Edioard De Grazia and Melvin L. Wulf filed a brief for the American Civil Liberties Union et al., as amici curiae, urging reversal.
   Mr. Justice Brennan

delivered the opinion of the Court.

Appellant sought to challenge the constitutionality of the Maryland motion picture censorship statute, Md. Ann. Code, 1957, Art. 66A, and exhibited the film “Revenge at Daybreak” at his Baltimore theatre without first submitting the picture to the State Board of Censors as required by § 2 thereof. The State concedes that the picture does not violate the statutory standards and would have received a license if properly submitted, but the appellant was convicted of a § 2 violation despite his contention that the statute in its entirety unconstitutionally impaired freedom of expression. The Court of Appeals of Maryland affirmed, 233 Md. 498, 197 A. 2d 232, and we noted probable jurisdiction, 377 U. S. 987. We reverse.

I.

In Times Film Corp. v. City of Chicago, 365 U. S. 43, we considered and upheld a requirement of submission of motion pictures in advance of exhibition. The Court of Appeals held, on the authority of that decision, that “the Maryland censorship law must be held to be not void on its face as violative of the freedoms protected against State action by the First and Fourteenth Amendments.” 233 Md., at 505, 197 A. 2d, at 235. This reliance on Times Film was misplaced. The only question tendered for decision in that case was “whether a prior restraint was necessarily unconstitutional under all circumstances.” Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70, n. 10 (emphasis in original). The exhibitor’s argument that the requirement of submission without more amounted to a constitutionally prohibited prior restraint was interpreted by the Court in Times Film as a contention that the “constitutional protection includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture . . . even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government . . . .” 365 U. S., at 46, 47. The Court held that on this “narrow” question, id., at 46, the argument stated the principle against prior restraints too broadly; citing a number of our decisions, the Court quoted the statement from Near v. Minnesota, 283 U. S. 697, 716, that “the protection even as to previous restraint is not absolutely unlimited.” In rejecting the proffered proposition in Times Film the Court emphasized, however, .that “[i]t is that question alone which we decide,” 365 U. S., at 46, and it would therefore be inaccurate to say that Times Film upheld the specific features of the Chicago censorship ordinance.

Unlike the petitioner in Times Film, appellant does not argue that § 2 is unconstitutional simply because it may prevent even the first showing of a film whose exhibition may legitimately be the subject of an obscenity prosecution. He presents a question quite distinct from that passed on in Times Film; accepting the rule in Times Film, he argues that § 2 constitutes an invalid prior restraint because, in the context of the remainder of the statute, it presents a danger of unduly suppressing protected expression. He focuses particularly on the procedure for an initial decision by the censorship board, which, without any judicial participation, effectively bars exhibition of any disapproved film, unless and until the exhibitor undertakes a time-consuming appeal to the Maryland courts and succeeds in having the Board’s decision reversed. Under the statute, the exhibitor is required to submit the film to the Board for examination, but no time limit is imposed for completion of Board action, § 17. If the film is disapproved, or any elimination ordered, § 19 provides that

“the person submitting such film or view for examination will receive immediate notice of such elimination or disapproval, and if appealed from, such film or view will be promptly re-examined, in the presence of such person, by two or more members of the Board, and the same finally approved or disapproved promptly after such re-examination, with the right of appeal from the decision of the Board to the Baltimore City Court of Baltimore City. There shall be a further right of appeal from the decision of the Baltimore City Court to the Court of Appeals of Maryland, subject generally to the time and manner provided for taking appeal to the Court of Appeals.”

Thus there is no statutory provision for judicial participation in the procedure which bars a film, nor even assurance of prompt judicial review. Risk of delay is built into the Maryland procedure, as is borne out by experience; in the only reported case indicating the length of time required to complete an appeal, the initial judicial determination has taken four months and final vindication of the film on appellate review, six months. United Artists Corp. v. Maryland State Board of Censors, 210 Md. 586, 124 A. 2d 292.

In the light of the difference between the issues presented here and in Times Film, the Court of Appeals erred in saying that, since appellant’s refusal to submit the film to the Board was a violation only of § 2, “he has restricted himself to an attack on that section alone, and lacks standing to challenge any of the other provisions (or alleged shortcomings) of the statute.” 233 Md., at 505, 197 A. 2d, at 236. Appellant has not challenged the submission requirement in a vacuum but in a concrete statutory context. His contention is that § 2 effects an invalid prior restraint because the structure of the other provisions of the statute contributes to the infirmity of § 2; he does not assert that the other provisions are independently invalid.

In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license. “One who might have had a license for the asking may . . . call into question the whole scheme of licensing when he is prosecuted for failure to procure it.” Thornhill v. Alabama, 310 U. S. 88, 97; see Staub v. City of Baxley, 355 U. S. 313, 319; Saia v. New York, 334 U. S. 558; Thomas v. Collins, 323 U. S. 516; Hague v. CIO, 307 U. S. 496; Lovell v. City of Griffin, 303 U. S. 444, 452-453. Standing is recognized in such cases because of the “. . . danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.” NAACP v. Button, 371 U. S. 415, 433; see also Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 75-76, 80-81, 96-104 (1960). Although we have no occasion to decide whether the vice of overbroadness infects the Maryland statute, we think that appellant’s assertion of a similar danger in the Maryland apparatus of censorship — one always fraught with danger and viewed with suspicion— gives him standing to make that challenge. In substance his argument is that, because the apparatus operates in a statutory context in which judicial review may be too little and too late, the Maryland statute lacks sufficient safeguards for confining the censor’s action to judicially determined constitutional limits, and therefore contains the same vice as a statute delegating excessive administrative discretion.

II.

Although the Court has said that motion pictures are not “necessarily subject to the precise rules governing any other particular method of expression,” Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503, it is as true here as of other forms of expression that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, supra, at 70. “. . . [U]nder the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity . . . without regard to the possible consequences for constitutionally protected speech.” Marcus v. Search Warrant, 367 U. S. 717, 731. The administration of a censorship system for motion pictures presents peculiar dangers to constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts the initial burden on the exhibitor or distributor. Because the censor’s business is to censor, there inheres the danger that he may well be less responsive than a court— part of an independent branch of government — to the constitutionally protected interests in free expression. And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor’s determination may in practice be final.

Applying the settled rule of our cases, we hold that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. First, the burden of proving that the film is unprotected expression must rest on the censor. As we said in Speiser v. Randall, 357 U. S. 513, 526, “Where the transcendent value of speech is involved, due process certainly requires . . . that the State bear the burden of persuasion to show that the appellants engaged in criminal speech.” Second, while the State may require advance submission of all films, in order to proceed effectively to bar all showings of unprotected films, the requirement cannot be administered in a manner which would lend an effect of finality to the censor’s determination whether a film constitutes protected expression. The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. See Bantam Books, Inc. v. Sullivan, supra; A Quantity of Books v. Kansas, 378 U. S. 205; Marcus v. Search Warrant, supra; Manual Enterprises, Inc. v. Day, 370 U. S. 478, 518-519. To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. Moreover, we are well aware that, even after expiration of a temporary restraint, an administrative refusal to license, signifying the censor’s view that the film is unprotected, may have a discouraging effect on the exhibitor. See Bantam Books, Inc. v. Sullivan, supra. Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.

Without these safeguards, it may prove too burdensome to seek review of the censor’s determination. Particularly in the case of motion pictures, it may take very little to deter exhibition in a given locality. The exhibitor’s stake in any one picture may be insufficient to warrant a protracted and onerous course of litigation. The distributor, on the other hand, may be equally unwilling to accept the burdens and delays of litigation in a particular area when, without such difficulties, he can freely exhibit his film in most of the rest of the country; for we are told that only four States and a handful of municipalities have active censorship laws.

It is readily apparent that the Maryland procedural scheme does not satisfy these criteria. First, once the censor disapproves the film, the exhibitor must assume the burden of instituting judicial proceedings and of persuading the courts that the film is protected expression. Second, once the Board has acted against a film, exhibition is prohibited pending judicial review, however protracted. Under the statute, appellant could have been convicted if he had shown the film after unsuccessfully seeking a license, even though no court had evér ruled on the obscenity of the film. Third, it is abundantly clear that the Maryland statute provides no assurance of prompt judicial determination. We hold, therefore, that appellant’s conviction must be reversed. The Maryland scheme fails to provide adequate safeguards against undue inhibition of protected expression, and this renders the § 2 requirement of prior submission of films to the Board an invalid previous restraint.

III.

How or whether Maryland is to incorporate the required procedural safeguards in the statutory scheme is, of course, for the State to decide. But a model is not lacking: In Kingsley Books, Inc. v. Brown, 354 U. S. 436, we upheld a New York injunctive procedure designed to prevent the sale of obscene books. That procedure postpones any restraint against sale until a judicial determination of obscenity following notice and an adversary hearing. The statute provides for a hearing one day after joinder of issue; the judge must hand down his decision within two days after termination of the hearing. The New York procedure operates without prior submission to a censor, but the chilling effect of a censorship order, even one which requires judicial action for its enforcement, suggests all the more reason for expeditious determination of the question whether a particular film is constitutionally protected.

The requirement of prior submission to a censor sustained in Times Film is consistent with our recognition that films differ from other forms of expression. Similarly, we think that the nature of the motion picture industry may suggest different time limits for a judicial determination. It is common knowledge that films are scheduled well before actual exhibition, and the requirement of advance submission in § 2 recognizes this. One possible scheme would be to allow the exhibitor or distributor to submit his film early enough to ensure an orderly final disposition of the case before the scheduled exhibition date — far enough in advance so that the exhibitor could safely advertise the opening on a normal basis. Failing such a scheme or sufficiently early submission under such a scheme, the statute would have to require adjudication considerably more prompt than has been the case under the Maryland statute. Otherwise, litigation might be unduly expensive and protracted, or the victorious exhibitor might find the most propitious opportunity for exhibition past. We do not mean to lay down rigid time limits or procedures, but to suggest considerations in drafting legislation to accord with local exhibition practices, and in doing so to avoid the potentially chilling effect of the Maryland statute on protected expression.

D Reversed.

Mr. Justice Douglas,

whom Mr. Justice Black joins,

concurring.

On several occasions I have indicated my view that movies are entitled to the same degree and kind of protection under the First Amendment as other forms of expression. Superior Films v. Department of Education, 346 U. S. 587, 588; Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 697; Times Film Corp. v. Chicago, 365 U. S. 43, 78. For the reasons there stated, I do not believe any form of censorship — no matter how speedy or prolonged it may be — is permissible. As I see it, a pictorial presentation occupies as preferred a position as any other form of expression. If censors are banned from the publishing business, from the pulpit, from the public platform — as they are — they should be banned from the the-atre. I would not admit the censor even for the limited role accorded him in Kingsley Books, Inc. v. Brown, 354 U. S. 436. I adhere to my dissent in that case. Id., at 446-447. Any authority to obtain a temporary injunction gives the State “the paralyzing power of a censor.” Id., at 446. The regime of Kingsley Books “substitutes punishment by contempt for punishment by jury trial.” Id., at 447. I would put an end to all forms and types of censorship and give full literal meaning to the command of the First Amendment.

       Md. Ann. Code, 1957, Art. 66A, §2:
      “It shall be unlawful to sell, lease, lend, exhibit or use any motion picture film or view in the State of Maryland unless the said film or view has been submitted by the exchange, owner or lessee of the film or view and duly approved and licensed by the Maryland State Board of Censors, hereinafter in this article called the Board.”

       Md. Ann. Code, 1957, Art. 66A, § 6:
      “(a) Board to examine, approve or disapprove films — -The Board shall examine or supervise the examination of all films or views to be exhibited or used in the State of Maryland and shall approve and license such films or views which are moral and proper, and shall disapprove such as are obscene, or such as tend, in the judgment of the Board, to debase or corrupt morals or incite to crimes. All films exclusively portraying current events or pictorial news of the day, commonly called news reels, may be exhibited without examination and no license or fees shall be required therefor.
      “(b) What films considered obscene. — For the purposes of this article, a motion picture film or view shall be considered to be obscene if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability of this effect is so great as to outweigh whatever other merits the film may possess.
      “(c) What films tend to debase or corrupt morals.- — For the purposes of this article, a motion picture film or view shall be considered to be of such a character that its exhibition would tend to debase or corrupt morals if its dominant purpose or effect is erotic or pornographic; or if it portrays acts of sexual immorality, lust or lewdness, or if it expressly or impliedly presents such acts as desirable, acceptable or proper patterns of behavior.
      “(d) What films tend to incite to crime. — For the purposes of this article, a motion picture film or view shall be considered of such a character that its exhibition would tend to incite to crime if the theme or the manner of its presentation presents the commission of criminal acts or contempt for law as constituting profitable, desirable, acceptable, respectable or commonly accepted behavior, or if it advocates or teaches the use of, or the methods of use of, narcotics or habit-forming drugs.”

         Appellant also challenges the constitutionality of § 6, establishing standards, as invalid for vagueness under the Due Process Clause; § 11, imposing fees for the inspection and licensing of a film, as constituting an invalid tax upon the exercise of freedom of speech; and § 23, allowing exemptions to various classes of exhibitors, as denying him the equal protection of the laws. In view of our result, we express no views upon these claims.

       See Emerson, The Doctrine of Prior Restraint, 20 Law & Con-temp. Prob. 648, 666-659 (1955). This is well illustrated by the fact that the Maryland Court of Appeals has reversed the Board’s disapproval in every reported case. United Artists Corp. v. Maryland State Board of Censors, supra; Maryland State Board of Censors v. Times Film Corp., 212 Md. 454, 129 A. 2d 833; Fanfare Films, Inc. v. Motion Picture Censor Board, 234 Md. 10, 197 A. 2d 839.

       An appendix to the brief amici curiae of the American Civil Liberties Union and its Maryland Branch lists New York, Virginia and Kansas as the three States having statutes similar to the Maryland statute, and the cities of Chicago, Detroit, Fort Worth and Providence as having similar ordinances. Twenty-eight of the remaining 39 municipal ordinances and codes are listed as “inactive.”

      The Court today holds that a system of movie censorship must contain at least three procedural safeguards if it is not to run afoul of the First Amendment: (1) the censor must have the burden of instituting judicial proceedings; (2) any restraint prior to judicial review can be imposed only briefly in order to preserve the status quo; and (3) a prompt judicial determination of obscenity must be assured. Thus the Chicago censorship system, upheld by the narrowest of margins in Times Film Corp. v. Chicago, 365 U. S. 43, could not survive under today’s standards, for it provided not one of these safeguards, as the dissenters there expressly pointed out. Id., at 73-75.


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Douglas, Mr. Justice Black,

license: Public Domain

text:
    UNITED STATES v. GAINEY.
    No. 13.
    Argued October 15, 1964.
    Decided March 1, 1965.

      Louis F. Claiborne argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Jerome M. Feit.

      Joseph H. Davis argued the cause for respondent. With him on the brief was J. Sewell Elliott.

   Mr. Justice Stewart

delivered the opinion of the Court.

After a jury trial in the United States District Court for the Middle District of Georgia, respondent Jackie Gainey was convicted of violating 26 U. S. C. § 5601 (a)(1) (possession, custody or control of a set up, unregistered still and distilling apparatus) and 26 U. S. C. § 5601 (a) (4) (carrying on “the business of a distiller or rectifier without having given bond as required by law”)- In the course of his instructions the trial judge informed the jury of two statutory provisions which authorize a jury to infer guilt of the substantive offenses from the fact of a defendant’s unexplained presence at the site of an illegal still. The Court of Appeals for the Fifth Circuit reversed the convictions on the ground that these statutory inferences are unconstitutional, because it thought the connection between unexplained presence at an illegal still and the substantive offenses of “possession” and “carrying on” is insufficiently rational to satisfy the due process requirements formulated by this Court in Tot v. United States, 319 U. S. 463. We granted certiorari, sub nom. United States v. Barrett, to review the exercise of the grave power of annulling an Act of Congress. 375 U. S. 962.

If either statutory inference is valid, the judgment of the Court of Appeals must be reversed, because concurrent sentences were imposed by the District Court. Emspak v. United States, 349 U. S. 190, 195; Sinclair v. United States, 279 U. S. 263, 299 (1929). We find the inference authorized by § 5601 (b) (2) constitutionally permissible, and therefore reverse the judgment without reaching the validity of § 5601 (b)(1).

The legislative record shows that Congress enacted these provisions because of “the practical impossibility of proving . . . actual participation in the illegal activities except by inference drawn from [the defendant’s] presence when the illegal acts were committed . ...” The statutes were passed against a backdrop of varying formulations among the Circuits of the standards which should shape a trial judge’s instructions to a jury in telling it what weight to accord the fact of a defendant’s unexplained presence at an illegal still site. Long before 1958, the year the statutes were enacted, trial judges had been instructing juries that a defendant’s presence at a still could be considered by them in determining whether the defendant had participated in carrying on the illegal operation. Barton v. United States, 267 F. 174, 175-176 (C. A. 4th Cir.). Compare Wilson v. United States, 162 U. S. 613. The Fourth Circuit had endorsed such a charge. Barton v. United States, supra. In the Third and Fifth Circuits the precedents were less clear. See Graceffo v. United States, 46 F. 2d 852 (C. A. 3d Cir.); Fowler v. United States, 234 F. 2d 697, 699 (C. A. 5th Cir.).

The variations among the courts of appeals concerned the reasonableness of inferring guilt of the substantive offense from the fact of unexplained presence at the site of the criminal enterprise. It is that question which Congress has now resolved in favor of the established practice of trial judges to include the inference in their charges. And it is the same question of reasonableness which the petitioner asks this Court to determine in passing on the constitutionality of § 5601 (b)(2).

As the Court of Appeals correctly stated in this case, the constitutionality of the legislation depends upon the rationality of the connection “between the facts proved and the ultimate fact presumed.” Tot v. United States, 319 U. S. 463, 466. The process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it. As the record in the Circuits shows, courts have differed in assessing the weight to be placed upon the fact of the defendant’s unexplained presence at a still. See United States v. Freeman, 286 F. 2d 262 (C. A. 4th Cir.). Yet it is precisely when courts have been unable to agree as to the exact relevance of a frequently occurring fact in an atmosphere pregnant with illegality that Congress’ resolution is appropriate.

The rationality of the inference provided by § 5601 (b) (2) must be viewed in the context of the broad substantive offense it supports. Section 5601 (a)(4) proscribes “carrying on” the enterprise of illegal distillation — an offense which is one of the most comprehensive of the criminal statutes designed to stop the production and sale of untaxed liquor. See Vukich v. United States, 28 F. 2d 666, 669 (C. A. 9th Cir.). Those who aid and abet the enterpriser come within the statute’s reach by virtue of 18 U. S. C. § 2 (1958 ed.). United States v. Giuliano, 263 F. 2d 582 (C. A. 3d Cir.). Suppliers, haulers, and a host of other functionaries have been convicted under the statute. See United States v. Pritchard, 55 F. Supp. 201 (D. C. W. D. S. C.), aff’d, 145 F. 2d 240 (C. A. 4th Cir.). Congress was undoubtedly aware that manufacturers of illegal liquor are notorious for the deftness with which they locate arcane spots for plying their trade. Legislative recognition of the implications of seclusion only confirms what the folklore teaches — that strangers to the illegal business rarely penetrate the curtain of secrecy. We therefore hold that § 5601 (b) (2) satisfies the test of Tot v. United States, supra.

But it is said that this statute is unconstitutional upon a different ground — that it impinges upon the trial judge’s powers over the judicial proceeding. We cannot agree. Our Constitution places in the hands of the trial judge the responsibility for safeguarding the integrity of the jury trial, including the right to have a case withheld from the jury when the evidence is insufficient as a matter of law to support a conviction. The statute before us deprives the trial judge of none of his normal judicial powers. We do not interpret the provision in the statute that unexplained “presence . . . shall be deemed sufficient evidence to authorize conviction” as in any way invading the province of the judge’s discretion. The language permits the judge to submit a case to the jury on the basis of the accused’s presence alone, and to this extent it constitutes congressional recognition that the fact of presence does have probative worth in the determination of guilt. But where the only evidence is of presence the statute does not require the judge to submit the case to the jury, nor does it preclude the grant of a judgment notwithstanding the verdict. And the Court of Appeals may still review the trial judge's denial of motions for a directed verdict or for a judgment n. o. v.

The statute does not prevent the jury from being “properly instructed on the standards for reasonable doubt.” Holland v. United States, 348 U. S. 121, 139. In this case, the trial judge instructed the jury as follows:

“There is one other matter which I should mention. I charge you that the presence of defendants at a still, if proved, with or without flight therefrom, or attempted flight therefrom, if proved, would be a circumstance for you to consider along with all the other testimony in the case. Of course, the bare presence at a distillery and flight therefrom of an innocent man is not in and of itself enough to make him guilty. It is possible under the law for an innocent man to be present at a distillery, and it is possible for him to run when about to be apprehended, and such an innocent man ought never to be convicted, but presence at a distillery, if you think these men were present, is a circumstance to be considered along with all the other circumstances in the case in determining whether they were connected with the distillery or not. Did they have any equipment with them that was necessary at the distillery? What was the hour of day that they were there? Did the officers see them do anything? Did they make any statements?
“It is your duty to explore this case, analyze the evidence pro and con fairly. Presence at a still, together with other circumstances in the case, if they are sufficient in your opinion to exclude every reasonable conclusion except that they were there connected with the distillery, in an illegal manner, . . . carrying on the business as charged . . . , if you believe those things, would authorize you in finding the defendants guilty.
“And under a statute enacted by Congress a few years back, when a person is on trial for . . . carrying on the business of a distiller without giving bond as required by law, as charged in this case, and the defendant is shown to have been at the site of the place . . . where and at the time when the business of a distiller was engaged in or carried on without bond having been given, under the law such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant by the evidence in the case and by proven facts and circumstances explains such presence to the satisfaction of the jury.
“Now this does not mean that the presence of the defendant at the site and place at the time referred to requires the jury to convict the defendant, if the defendant by the evidence in the case, facts and cir-circumstances proved, fails to explain his presence to the satisfaction of the jury. It simply means that a jury may, if it sees fit, convict upon such evidence, as it shall be deemed in law sufficient to authorize a conviction, but does not require such a result.” (Emphasis supplied.)

The jury was thus specifically told that the statutory inference was not conclusive. “Presence” was one circumstance to be considered among many. Even if it found that the defendant had been present at the still, and that his presence remained unexplained, the jury could nonetheless acquit him if it found that the Government had not proved his guilt beyond a reasonable doubt. Holland v. United States, supra. In the absence of the statute, such an instruction to the jury would surely have been permissible. Cf. Wilson v. United States, supra. Furthermore, in the context of the instructions as a whole, we do not consider that the single phrase “unless the defendant by the evidence in the case and by proven facts and circumstances explains such presence to the satisfaction of the jury” can be fairly understood as a comment on the petitioner’s failure to testify. Cf. Bruno v. United States, 308 U. S. 287. The judge’s overall reference was carefully directed to the evidence as a whole, with neither allusion nor innuendo based on the defendant’s decision not to take the stand.

In McNamara v. Henkel, 226 U. S. 520, 525, the Court approved a proceeding which did no more than “accord to the evidence, if unexplained, its natural probative force.” That is all that Congress has done here. We cannot find that the law it enacted violates the Constitution.

Reversed.

Mr. Justice Douglas,

dissenting in part.

The statute which the Court finds constitutional provides!

“Whenever on trial for violation of subsection (a) (4) [making it an offense to carry on the business of a distiller or rectifier without having given bond as required by law] the defendant is shown to have been at the site or place where, and at the time when, the business of a distiller or rectifier was so engaged in or carried on, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).” 26 U. S. C. § 5601 (b)(2).

It would be possible to interpret the statute as compelling judges to give the following instruction to juries: “If you find that the defendant was present at the still, then the law requires you to assume that he was there carrying on the business of a distiller within the meaning of the statute; but you need not make this assumption if the defendant has given another explanation of his presence there and you are satisfied of the truth of that explanation.” If the statute were read as compelling-such an instruction, I would find it constitutionally intolerable, for the reasons so well stated by my Brother Black.

The Court, however, interprets the statute as merely allowing, not compelling, the jury to draw the inference of “carrying on” from the fact of “presence.” The jury is left free to reject the inference if, in light of all the circumstances of the case, a reasonable doubt remains as to the defendant’s guilt. That is the way the jury would normally function, apart from the statute. So, I have concluded that the statute, as construed, merely provides a rule of evidence and no more.

There are, to be sure, dangers inherent in any statutory presumption. Perhaps the jury will be overawed if it is told that some particular factual inference has been enshrined in an Act of Congress. Therefore the Court quite rightly suggests that the better practice would be to omit “any explicit reference to the statute itself in the charge.” Ante, p. 71, n. 7. Or perhaps the judge may feel that the statute restricts his power to withhold an insufficient case from the jury or to grant a judgment notwithstanding the verdict. The Court reassures the trial judge that the statute does not thus invade the province of his discretion. Nor is the function of the appellate courts in any way circumscribed.

In my view, the acute danger in the statute as construed and applied lurks in its provision that the jury may draw the inference in question “unless the defendant explains such presence to the satisfaction of the jury ....” (Emphasis supplied.) If this meant that the judge should instruct that the inference may be drawn unless the defendant himself becomes a witness and personally explains his presence at the still, then, as my Brother Black says, the statute would clearly subject the defendant to an impermissible compulsion to testify. But more subtly compelling instructions than that are outlawed by the same policy. It has long been the rule in the federal courts that the defendant’s failure to testify ought not to be even the subject of unfavorable comment:

“It is not every one who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offences charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. . . . [C]ounsel is forbidden by the statute [now 18 U. S. C. § 3481] to make any comment which would create or tend to create a presumption against the defendant from his failure to testify.” Wilson v. United States, 149 U. S. 60, 66-67.

Just as it is improper for counsel to argue from the defendant’s silence, so is it improper for the trial judge to call attention to the fact of defendant’s silence. Indeed, under 18 U. S. C. § 3481 the defendant is entitled as a matter of right to have the trial judge expressly tell the jury that it must not attach any importance to the defendant’s failure to testify; or, if the defendant sees fit, he may choose to have no mention made of his silence by anyone. Bruno v. United States, 308 U. S. 287.

I have previously expressed my view that this rule against comment on the defendant’s silence is mandated by the Fifth Amendment, because “[u]sing a defendant’s silence as evidence against him is one way of having him testify against himself.” Scott v. California, 364 U. S. 471, 472 (dissenting opinion).

The charge in the present case does not, in my view, satisfy the requirements of the Fifth Amendment. The judge told the jury that the inference could be drawn “unless the defendant by the evidence in the case and by proven facts and circumstances explains such presence to the satisfaction of the jury.” I believe the charge in that form runs counter to the federal policy that forbids conviction on compelled testimony, not only because, as my Brother Black points out, it puts direct pressure on the defendant to come forward and testify, but also because it amounts in practical effect to an improper comment on the defendant’s silence where, as here, he resists the pressure and does not take the stand in his own behalf. Unlike the Court, therefore, I would not interpret the statute before us as attempting a pro tanto repeal of 18 U. S. C. § 3481 by authorizing such an instruction.

Mr. Justice Black,

dissenting.

Respondent Gainey was tried and convicted of possession of an unregistered still and of carrying on the business of a distiller without having given bond in violation of a federal statute. Other provisions of the statute, entitled “Presumptions,” declare that presence at the site of such a distillery “shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury . . . .” At the trial federal and state officers testified, among other things, that they had seen Gainey at a still site. Gainey did not testify. The trial court, quite appropriately if the foregoing provisions are valid, instructed the jury that Gainey’s unexplained presence at the still was “deemed in law sufficient” to convict. I think that the statutory provisions which authorize such a charge deprived Gainey (1) of his constitutional right to trial by jury, guaranteed him both in Art. Ill, § 2, and in the Sixth Amendment; (2) of due process of law guaranteed by the Fifth Amendment, which includes the right to be tried for a crime in a court according to the law of the land, without any interference with that court’s judicial functions by the Congress; and (3) of his right guaranteed by the Fifth Amendment not to be compelled to be a witness against himself.

First of all, let me say that I am at a loss to understand the Court’s puzzling statement that “where the only evidence is of presence the statute does not require the judge to submit the case to the jury, nor does it preclude the grant of a judgment notwithstanding the verdict.” The provisions in question both say unqualifiedly that “presence of the defendant shall be deemed sufficient evidence to authorize conviction” unless the defendant explains his presence. The Court holds that this statutory command in § 6601 (b)(2) is valid, but then for some reason adds that judges are free to ignore it or, after telling juries that they may rely on it, are free to set aside the verdicts of those juries which do. In other words, under the Court's holding the judge is left free to take the extraordinary course of following a valid statute or not, as he chooses. Judges are not usually given such unlimited discretion to disregard valid statutes. And as the Court indicates elsewhere in its opinion, it was to prevent judges from setting aside jury verdicts based on presence alone that Congress passed this statute in the first place. Besides being almost self-contradictory, it amounts to an emasculation of these statutory provisions, I think, to say that the judge was not required to tell the jury about them. But whether or not he was bound to do so, the fact is that here he did, and so this jury deliberated with the judge’s solemn instruction that Congress had decided that proof of mere unexplained presence at a still was sufficient to convict Gainey of having illegally possessed it or carried on its business. New jurors could have failed to believe that it was their duty to convict under this charge if presence was proved, and few judges could have failed to believe it was their duty to uphold such a conviction, even though all of them in a particular case might have felt that mere presence alone was not enough to show guilt.

It has always been recognized that the guaranty of trial by jury in criminal cases means that the jury is to be the factfinder. This is the only way in which a jury can perform its basic constitutional function of determining the guilt or innocence of a defendant. See, e. g., United States ex rel. Toth v. Quarles, 350 U. S. 11, 15-19; Reid v. Covert, 354 U. S. 1, 5-10 (opinion announcing judgment). And of course this constitutionally established power of a jury to determine guilt or innocence of a defendant charged with crime cannot be taken away by Congress, directly or indirectly, in whole or in part. Obviously, a necessary part of this power, vested by the Constitution in juries (or in judges when juries are waived), is the exclusive right to decide whether evidence presented at trial is sufficient to convict. I think it flaunts the constitutional power of courts and juries for Congress to tell them what “shall be deemed sufficient evidence to authorize conviction.” And if Congress could not thus directly encroach upon the judge’s or jury’s exclusive right to declare what evidence is sufficient to prove the facts necessary for conviction, it should not be allowed to do so merely by labeling its encroachment a “presumption.” Neither Tot v. United States, 319 U. S. 463, relied on by the Court as supporting this presumption, nor any case cited in Tot approved such an encroachment on the power of judges or juries. In fact, so far as I can tell, the problem of whether Congress can so restrict the power of court and jury in a criminal case in a federal court has never been squarely presented to or considered by this Court, perhaps because challenges to presumptions have arisen in many crucially different contexts but nevertheless have generally failed to distinguish between presumptions used in different ways, treating them as if they are either all valid or all invalid, regardless of the rights on which their use may impinge. Because the Court also fails to differentiate among the different circumstances in which presumptions may be utilized and the different consequences which will follow, I feel it necessary to say a few words on that subject before considering specifically the validity of the use of these presumptions in the light of the circumstances and consequences of their use.

In its simplest form a presumption is an inference permitted or required by law of the existence of one fact, which is unknown or which cannot be proved, from another fact which has been proved. The fact presumed may be based on a very strong probability, a weak supposition or an arbitrary assumption. The burden on the party seeking to prove the fact may be slight, as in a civil suit, or very heavy — proof beyond a reasonable doubt— as in a criminal prosecution. This points up the fact that statutes creating presumptions cannot be treated as fungible, that is, as interchangeable for all uses and all purposes. The validity of each presumption must be determined in the light of the particular consequences that flow from its use. When matters of trifling moment are involved, presumptions may be more freely accepted, but when consequences of vital importance to litigants and to the administration of justice are at stake, a more careful scrutiny is necessary.

In judging the constitutionality of legislatively created presumptions this Court has evolved an initial criterion which applies alike to all kinds of presumptions: that before a presumption may be relied on, there must be a rational connection between the facts inferred and the facts which have been proved by competent evidence, that is, the facts proved must be evidence which is relevant, tending to prove (though not necessarily conclusively) the existence of the fact presumed. And courts have undoubtedly shown an inclination to be less strict about the logical strength of presumptive inferences they will permit in civil cases than about those which affect the trial of crimes. The stricter scrutiny in the latter situation follows from the fact that the burden of proof in a civil lawsuit is ordinarily merely a preponderance of the evidence, while in a criminal case where a man’s life, liberty, or property is at stake, the prosecution must prove his guilt beyond a reasonable doubt. See Morrison v. California, 291 U. S. 82, 96-97. The case of Bailey v. Alabama, 219 U. S. 219, is a good illustration of this principle. There Bailey was accused of violating an Alabama statute which made it a crime to fail to perform personal services after obtaining money by contracting to perform them, with an intent to defraud the employer. The statute also provided that refusal or failure to perform the services, or to refund money paid for them, without just cause, constituted “prima facie evidence” (i. e., gave rise to a presumption) of the intent to injure or defraud. This Court, after calling attention to prior cases dealing with the requirement of rationality, passed over the test of rationality and held the statute invalid on another ground. Looking beyond the rational-relationship doctrine the Court held that the use of this presumption by Alabama against a man accused of crime would amount to a violation of the Thirteenth Amendment to the Constitution, which forbids “involuntary servitude, except as a punishment for crime.” In so deciding the Court made it crystal clear that rationality is only the first hurdle which a legislatively created presumption must clear — that a presumption, even if rational, cannot be used to convict a man of crime if the effect of using the presumption is to deprive the accused of a constitutional right. In Bailey the constitutional right was given by the Thirteenth Amendment. In the case before us the accused, in my judgment, has been denied his right to the kind of trial by jury guaranteed by Art. Ill, § 2, and the Sixth Amendment, as well as to due process of law and freedom from self-incrimination guaranteed by the Fifth Amendment. And of course the principle announced in the Bailey case was not limited to rights guaranteed by the Thirteenth Amendment. The Court said in Bailey:

“It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions.” 219 U. S., at 239.

Thus the Court held that presumptions, while often valid (and some of which, I think, like the presumption of death based on long unexplained absence, may perhaps be even salutary in effect), must not be allowed to stand where they abridge or deny a specific constitutional guarantee. It is one thing to rely on a presumption to justify conditional administration of the estate of a person absent without explanation for seven years, see Cunnius v. Reading School District, 198 U. S. 458; compare Scott v. McNeal, 154 U. S. 34; it would be quite another to use the presumption of death from seven years’ absence to convict a man of murder. I do not think it can be denied that use of the statutory presumptions in the case before us at the very least seriously impaired Gainey’s constitutional right to have a jury weigh the facts of his case without any congressional interference through predetermination of what evidence would be sufficient to prove the facts necessary to convict in a particular case.

The Bailey case also emphatically answers the Court’s insistence that this encroachment on Gainey’s constitutional rights was justified or neutralized by the trial court’s instruction that while evidence of unexplained presence was sufficient under the statute to convict, the jury nonetheless was not compelled to convict. This same kind of contention was made to this Court and rejected in Bailey, where the Alabama Supreme Court had upheld that State’s presumption on the ground that “with such evidence before them, the jury are still left free to find the accused guilty or not guilty, according as they may be satisfied of his guilt or not, by the whole evidence.” Bailey v. State, 161 Ala. 75, 78, 49 So. 886, 887. This Court answered that contention then, as I think it should now, saying:

“The point is that, in such a case, the statute authorizes the jury to convict. It is not enough to say that the jury may not accept that evidence as alone sufficient; for the jury may accept it, and they have the express warrant of the statute to accept [it] as a basis for their verdict.” 219 U. S., at 235. (Emphasis in' original.)

And the Court added that “The normal assumption is that the jury will follow the statute and, acting in accordance with the authority it confers, will accept as sufficient what the statute expressly so describes.” Id., at 237.

Even if I could accept the doctrine that Congress after declaring that certain conduct shall be a crime has further power to tell judges and juries that certain evidence shall be sufficient to prove that conduct and convict a defendant, I could not agree that these statutory presumptions are constitutional. They declare mere presence at a still site without more to be sufficient evidence to convict of the crimes of carrying on a distillery business and possessing a still. While presence at a still is unquestionably a relevant circumstance to add to others to prove possession or operation of a still, I could not possibly agree that mere presence is sufficient in and of itself, without any supporting evidence, to permit a finding that, beyond a reasonable doubt, the person present carried on a distillery business or possessed a still or even aided and abetted in committing those crimes. Indeed, with respect to the crime of possession, as the Court concedes, we held squarely to the contrary in Bozza v. United States, 330 U. S. 160, quite properly, I think. In setting aside the Bozza conviction for possession of a still, which had been based on mere presence at a still, this Court was acting in accordance with the historic principle that “independent trial judges and independent appellate judges have a most important place under our constitutional plan since they have power to set aside convictions.” United States ex rel. Toth v. Quarles, 350 U. S. 11, 19. This judicial responsibility to pass on the sufficiency of the evidence must be exercised in each case, no more to be controlled by a general congressional enactment than it could be by a special act directed to one case only. This protective function of the court is amply demonstrated in the case before us: while Gainey was originally indicted on four counts, the trial judge directed a verdict of acquittal on one and the Court of Appeals ordered acquittal on another.

It indeed is true, as the Court suggests, that it was to make convictions possible on no more evidence than presence that the presumption statute here under consideration was passed. Undoubtedly a presumption which can be used to produce convictions without the necessity of proving a crucial element of the crime charged — and a sometimes difficult-to-prove element at that — is a boon to prosecutors and an incongruous snare for defendants in a country that claims to require proof of guilt beyond a reasonable doubt. Quite accurately such a use of a presumption has been described as “First Aid to the District Attorney.” Instead of supporting the constitutionality of such a use of statutory presumptions, however, I think this argument based on necessity and convenience points out its fatal defects. I suppose no one would deny that the Government’s burden would also be made lighter if the defendant was not represented by counsel, compare Gideon v. Wainwright, 372 U. S. 335, or if the jury could receive and consider confessions extorted by torture, compare Brown v. Mississippi, 297 U. S. 278, or if evidence obtained from defendants through illegal searches and seizures could be used against them, compare Mapp v. Ohio, 367 U. S. 643, but this Court has not hesitated to strike down such encroachments on those constitutional rights. Yet here the Court sanctions a method less crude, but just as effective, to deny Gainey his constitutional right to a trial by jury.

I cannot subscribe to the idea that any one of the constitutional grants of power to Congress enumerated in Art. I, § 8, including the Necessary and Proper Clause, contains either an express or an implied power of Congress to instruct juries as to what evidence is sufficient to convict defendants in particular cases. Congress can undoubtedly create crimes, but it cannot constitutionally try them. The Constitution specifically prohibits bills of attainder. Congress can declare certain conduct a crime, unless barred by some constitutional provision, but it must, if true to our Constitution of divided powers and the Fifth Amendment’s command that cases be tried according to due process of law, leave the trial of those crimes to the courts, in which judges or juries can decide the facts on their own judgment without legislative constraint and judges can set aside convictions which they believe are not justified by the evidence. See Tot v. United States, 319 U. S. 463, 473 (concurring opinion). “[I] t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.” McFarland v. American Sugar Refining Co., 241 U. S. 79, 86. See Manley v. Georgia, 279 U. S. 1. Yet, viewed realistically, that is what the presumption which the Court today approves does in this case. I think that the presumption which should govern instead in criminal trials in the courts of this country is the time-honored presumption of innocence accorded to all criminal defendants until they are proved guilty by competent evidence.

Nor can a power of Congress to detract from the constitutional power of juries and judges to decide what facts are enough to convict be implied because of the power of Congress to make procedural rules or rules of evidence. See Ex parte Fisk, 113 U. S. 713, 720. It is not disputed that Congress has power to prescribe rules governing admissibility of evidence and purely procedural matters. The Congress unquestionably could declare the fact of presence to be admissible evidence, for certainly it is relevant when considered along with other circumstances. Yet this power to say what shall or shall not be admissible in no way empowers Congress to determine what facts, once admitted, suffice to prove guilt beyond a reasonable doubt. And I certainly cannot join the Court when it says:

“The process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.”

The implication of this statement is that somehow Congress is better qualified to decide what facts are sufficient to convict defendants than are courts and juries. I accept the proposition that Congress is the proper branch of our Government to decide legislative policies and enact general laws and that in so doing it must of necessity deal with facts to some extent. This is as the Constitution provides. But Congress is not authorized nor has it any special “expertise” with which I am familiar which entitles it to direct juries as to what conclusions they may or must draw from the unique facts of specific criminal cases tried in federal courts. Moreover, even were I to assume that Congress does have an expertise to assess facts in lawsuits which is superior to that of juries and judges, I still could not join the Court’s opinion, for I think that the Founders of our Government decided for us that these are matters “within specialized” — and exclusive — “judicial competence.” As this Court has said with reference to jury trial of facts:

“whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task.” United States ex rel. Toth v. Quarles, 350 U. S. 11, 18.

Besides impairing Gainey’s right to trial by jury according to due process safeguards, the statutes in this case I think violated Gainey’s constitutional rights in still another way. These statutory presumptions must tend, when incorporated into an instruction, as they were here, to influence the jury to reach an inference which the trier of fact might not otherwise have thought justified, to push some jurors to convict who might not otherwise have done so. Cf. Pollock v. Williams, 322 U. S. 4, 15. The undoubted practical effect of letting guilt rest on unexplained presence alone is to force a defendant to come forward and testify, however much he may think doing so may jeopardize his chances of acquittal, since if he does not he almost certainly destroys those chances. This is compulsion, which I think runs counter to the Fifth Amendment’s purpose to forbid convictions on compelled testimony. The compulsion here is of course more subtle and less cruel physically than compulsion by torture, but it is nonetheless compulsion and it is nonetheless effective. I am aware that this Court in Yee Hem v. United States, 268 U. S. 178, 185, held that use of a presumptive squeeze like this one did not amount to a form of compulsion forbidden by the Fifth Amendment. The Court’s reasoning was contained in a single paragraph, the central argument of which was that despite a presumption like this a defendant is left “entirely free to testify or not as he chooses.” That argument, it seems to me, would also justify admitting in evidence a confession extorted by a policeman’s pointing a gun at the head of an accused, on the theory that the man being threatened was entirely free to confess or not, as he chose. I think the holding in Yee Hem is completely out of harmony with the Fifth Amendment’s prohibition against compulsory self-incrimination, and I would overrule it. See Feldman v. United States, 322 U. S. 487, 494 (dissenting opinion); compare Leyra v. Denno, 347 U. S. 556. See also State v. Lapointe, 81 N. H. 227, 123 A. 692, quoted with approval in the opinion of the court below, 322 F. 2d 292, 296 (C. A. 5th Cir.).

For all the foregoing reasons, I think that these two statutory presumptions by which Congress has tried to relieve the Government of its burden of proving a man guilty and to take away from courts and juries the function and duty of deciding guilt or innocence according to the evidence before them, unconstitutionally encroach on the functions of courts and deny persons accused of crime rights which our Constitution guarantees them. The most important and most crucial action the courts take in trying people for crime is to resolve facts. This is a judicial, not a legislative, function. I think that in passing these two sections Congress stepped over its constitutionally limited bounds and encroached on the constitutional power of courts to try cases. I would therefore affirm the judgment of the court below and grant Gainey a new trial by judge and jury with all the protections accorded by the law of the land.

       The evidence for the prosecution showed that an old Dodge truck with darkened headlights drove up to the site of a secluded still, hidden in a swamp in Dooly County, Georgia. The respondent, Jackie Gainey, left the truck, turned on a flashlight, and walked toward the still. There he was confronted by state and federal revenue agents. The respondent attempted to flee, but after a short chase, he and his waiting colleagues were apprehended. Since the trial, one of Gainey’s co-defendants, Roy Lee Barrett, has died; the other, Cleveland Johns, elected to serve and has completed his sentence.

       Section 5601 (b)(1) provides:
      “(1) Unregistered stills.

      “Whenever on trial for violation of subsection (a) (1) the defendant is shown to have been at the site or place where, and at the time when, a still or distilling apparatus was set up without having been registered, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).”
      Section 5601 (b)(2) provides:

        “(2) Failure or refusal of distiller or rectifier to give bond.

      “Whenever on trial for violation of subsection (a) (4) the defendant is shown to have been at the site or place where, and at the time when, the business of a distiller or rectifier was so engaged in or carried on, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).”
      These sections were introduced into the Code in 1958. The statutory inferences are modeled after 18 U. S. C. §545 (1958 ed.), originally § 4 of the Smuggling Act of 1866, 14 Stat. 178, 179. Similar wording appears in 21 U. S. C. § 174 (1958 ed.), the Narcotic Drugs Import and Export Act of 1909, 35 Stat. 614, the constitutionality of which was sustained in Yee Hem v. United States, 268 U. S. 178.

       A third count charged a violation of § 5602, which prohibits carrying on the business of a distiller with intent to defraud the United States. The Court of Appeals reversed the conviction on this count also, and the Government did not seek review of this reversal. A fourth count, charging that the defendants, in violation of 26 U. S. C. § 5180 (1958 ed.), worked in a distillery on which no sign was placed showing the name of the person engaged in the distilling, resulted in a directed verdict of acquittal.

       Hearings before a Subcommittee of the House Committee on Ways and Means on Excise Tax Technical and Administrative Problems, Part 3, p. 95, 84th Cong., 2d Sess.

        Bozza v. United States, 330 U. S. 160, contributed to congressional concern. See Hearings, note 4, supra. But that case did not deal with the problem of presence alone as insufficient evidence where the substantive offense is “carrying on” the enterprise of illegal distillation. Bozza’s conviction for “carrying on” the enterprise of illegal distillation was affirmed by this Court.

       “Very few of the illicit distillers allow any one, except their most intimate friends, to approach their distilleries. Such places, as a rule, are forbidden ground, for the reason that when the violators are arrested it is a difficult matter to prove them guilty, when so few persons have ever seen them operating their distilleries.” Atkinson, After the Moonshiners, By One of the Raiders, at p. 23.
      “The first requisite for an illicit still is a good stream of cool water. . . .
      “The next requisite is seclusion. It must be placed where no one ever travels, or even thinks of traveling.” Id., at p. 18.

       Indeed the better practice would be to instruct the jurors that they may draw the inference unless the evidence in the case provides a satisfactory explanation for the defendant’s presence at the still, omitting any explicit reference to the statute itself in the charge.

      “In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State, District, Possession or Territory, the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him.”

         26 U. S. C. §5601 (a)(1) (1958 ed.) provides:
      “Offenses.
      “Any person who—
      “(1) Unregistered stills.
      “Has in his possession or custody, or under his control, any still or distilling apparatus set up which is not registered, as required by section 5179 (a) . . .
      “shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, for each such offense.”

       26 U. S. C. § 5601 (a) (4) (1958 ed.) provides:
      “Offenses.
      “Any person who—
      “(4) Failure or refusal of distiller or rectifier to give bond.

      “Carries on the business of a distiller or rectifier, without having given bond as required by law . . .
      “shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, for each such offense.”

       Section 5601 (b)(1) provides:

        “(b) Presumptions.

      “(1) Unregistered stills.

      “Whenever on trial for violation of subsection (a)(1) the defendant is shown to have been at the site or place where, and at the time when, a still or distilling apparatus was set up without having been registered, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).”
      Section 5601 (b)(2) provides:

        “(2) Failure or refusal of distiller or rectifier to give bond.

      “Whenever on trial for violation of subsection (a) (4) the defendant is shown to have been at the site or place where, and at the time when, the business of a distiller or rectifier was so engaged in or carried on, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).”

         Although the Court does not consider the validity of § 5601 (b) (1), its reasoning surely would seem to apply to that section as well.

       I agree with the Court’s holding that the language of § 5601 (b) (2) “permits the judge to submit a case to the jury on the basis of the accused’s presence alone.” The Court does not suggest any reason why it would interpret the identical language in § 5601 (b) (1) any differently.

       Such an act obviously would be proscribed as a bill of attainder, forbidden by Art. I, § 9. See United States v. Lovett, 328 U. S. 303; Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333.

       The trial judge directed a verdict of acquittal on a count charging Gainey with working in a distillery which did not bear a sign showing the name of the person engaged in the distilling and denoting the business in which he was engaged, an offense made punishable by 26 U. S. C. §§6180 (a), 5681 (c) (1958 ed.).

       Count three of the indictment charged Gainey with carrying on the business of a distiller with intent to defraud the United States of taxes, a violation of 26 U. S. C. §5602 (1958 ed.). The Court of Appeals, holding that the record showed “no evidence whatever of intent to defraud,” set aside the jury’s verdict of conviction on that count. 322 F. 2d 292, 300.

       In this case, however, the record shows that there unquestionably was enough other evidence to submit the case to the jury without need for any artificial presumption. But the Court does not suggest that the use here of this presumption either should be or could be called harmless error.

       Chamberlain, Presumptions as First Aid to the District Attorney, 14 A. B. A. J. 287.

       “Once the thumbscrew and the following confession made conviction easy; but that method was crude and, I suppose, now would be declared unlawful upon some ground. Hereafter, presumption is to lighten the burden of the prosecutor. The victim will be spared the trouble of confessing and will go to his cell without mutilation or disquieting outcry.” Casey v. United States, 276 U. S. 413, 420 (dissenting opinion).

       It might be argued, although the Court does not so argue or hold, that Congress if it wished could make presence at a still a crime in itself, and so Congress should be free to create crimes which are called “possession” and “carrying on an illegal distillery business” but which are defined in such a way that unexplained presence is sufficient and indisputable evidence in all cases to support conviction for those offenses. See Ferry v. Ramsey, 277 U. S. 88. Assuming for the sake of argument that Congress could make unexplained presence a criminal act, and ignoring also the refusal of this Court in other cases to uphold a statutory presumption on such a theory, see Heiner v. Donnan, 285 U. S. 312, there is no indication here that Congress intended to adopt such a misleading method of draftsmanship, nor in my judgment could the statutory provisions if so construed escape condemnation for vagueness, under the principles applied in Lanzetta v. New Jersey, 306 U. S. 451, and many other cases.

         “While it is within the province of the legislature to determine the sources of evidence, the modes of verification, who may or may not be competent witnesses, I am not prepared to say they may weigh and determine the quantity of evidence, which shall suffice to produce conviction in the mind of the judge or juror who tries a cause.” Thomas, J., dissenting in Commonwealth v. Williams, 6 Gray (72 Mass.) 1, 10, cited with approval in State v. Beswick, 13 R. I. 211, 219.


author: Mr. Justice Stewart Mr. Justice Harlan,

text:
    CARRINGTON v. RASH et al.
    No. 82.
    Argued January 28, 1965.
    Decided March 1, 1965.

      Wayne Windle argued the cause for petitioner. With him on the briefs was W. C. Peticolas.

      Hawthorne Phillips, First Assistant Attorney General of Texas, and Mary K. Wall, Assistant Attorney General, argued the cause for respondents. With them on the brief was Waggoner Carr, Attorney General of Texas.
   Mr. Justice Stewart

delivered the opinion of the Court.

A provision of the Texas Constitution prohibits “[a]ny member of the Armed Forces of the United States” who moves his home to Texas during the course of his military duty from ever voting in any election in that State “so long as he or she is a member of the Armed Forces.” The question presented is whether this provision, as construed by the Supreme Court of Texas in the present case, deprives the petitioner of a right secured by the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court of Texas decided that it does not and refused to issue a writ of mandamus ordering petitioner’s local election officials to permit him to vote, two Justices dissenting. 378 S. W. 2d 304. We granted certiorari, 379 U. S. 812.

The petitioner, a sergeant in the United States Army, entered the service from Alabama in 1946 at the age of 18. The State concedes that he has been domiciled in Texas since 1962, and that he intends to make his home there permanently. He has purchased a house in El Paso where he lives with his wife and two children. He is also the proprietor of a small business there. The petitioner’s post of military duty is not in Texas, but at White Sands, New Mexico. He regularly commutes from his home in El Paso to his Army job at White Sands. He pays property taxes in Texas and has his automobile registered there. But for his uniform, the State concedes that the petitioner would be eligible to vote in El Paso County, Texas.

Texas has unquestioned power to impose reasonable residence restrictions on the availability of the ballot. Pope v. Williams, 193 U. S. 621. There can be no doubt either of the historic function of the States to establish, on a nondiscriminatory basis, and in accordance with the Constitution, other qualifications for the exercise of the franchise. Indeed, “[t]he States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised.” Lassiter v. Northampton Election Bd., 360 U. S. 45, 50. Compare United States v. Classic, 313 U. S. 299; Ex parte Yarbrough, 110 U. S. 651. “In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the Federal Constitution.” Pope v. Williams, supra, at 632.

This Texas constitutional provision, however, is unique. Texas has said that no serviceman may ever acquire a voting residence in the State so long as he remains in service. It is true that the State has treated all members of the military with an equal hand. And mere classification, as this Court has often said, does not of itself deprive a group of equal protection. Williamson v. Lee Optical Co., 348 U. S. 483. But the fact that a State is dealing with a distinct class and treats the members of that class equally does not end the judicial inquiry. “The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose. . . .” McLaughlin v. Florida, 379 U. S. 184, 191.

It is argued that this absolute denial of the vote to servicemen like the petitioner fulfills two purposes. First, the State says it has a legitimate interest in immunizing its elections from the concentrated balloting of military personnel, whose collective voice may overwhelm a small local civilian community. Secondly, the State says it has a valid interest in protecting the franchise from infiltration by transients, and it can reasonably assume that those servicemen who fall within the constitutional exclusion will be within the State for only a short period of time.

The theory underlying the State’s first contention is that the Texas constitutional provision is necessary to prevent the danger of a “takeover” of the civilian community resulting from concentrated voting by large numbers of military personnel in bases placed near Texas towns and cities. A base commander, Texas suggests, who opposes local police administration or teaching policies in local schools, might influence his men to vote in conformity with his predilections. Local bond issues may fail, and property taxes stagnate at low levels because military personnel are unwilling to invest in the future of the area. We stress — and this a theme to be reiterated — that Texas has the right to require that all military personnel enrolled to vote be bona fide residents of the community. But if they are in fact residents, with the intention of making Texas their home indefinitely, they, as all other qualified residents, have a right to an equal opportunity for political representation. Cf. Gray v. Sanders, 372 U. S. 368. “Fencing out” from the franchise a sector of the population because of the way they may vote is constitutionally impermissible. “[T]he exercise of rights so vital to the maintenance of democratic institutions,” Schneider v. State, 308 U. S. 147, 161, cannot constitutionally be obliterated because of a fear of the political views of a particular group of bona fide residents. Yet, that is what Texas claims to have done here.

The State’s second argument is that its voting ban is justified because of the transient nature of service in the Armed Forces. As the Supreme Court of Texas stated: “Persons in military service are subject at all times to reassignment, and hence to a change in their actual residence . . . they do not elect to be where they are. Their reasons for being where they are . . . cannot be the same as [those of] the permanent residents.” 378 S. W. 2d, at 306. The Texas Constitution provides that a United States citizen can become a qualified elector if he has “resided in this State one (1) year next preceding an election and the last six (6) months within the district or county in which such person offers to vote.” Article VI, § 2, Texas Constitution. It is the integrity of this qualification of residence which Texas contends is protected by the voting ban on members of the Armed Forces.

But only where military personnel are involved has Texas been unwilling to develop more precise tests to determine the bona fides of an individual claiming to have actually made his home in the State long enough to vote. The State’s law reports disclose that there have been many eases where the local election officials have determined the issue of bona fide residence. These officials and the courts reviewing their actions have required a “freely exercised intention” of remaining within the State, Harrison v. Chesshir, 316 S. W. 2d 909, 915. The declarations of voters concerning their intent to reside in the State and in a particular county is often not conclusive ; the election officials may look to the actual facts and circumstances. Stratton v. Hall, 90 S. W. 2d 865, 866. By statute, Texas deals with particular categories of citizens who, like soldiers, present specialized problems in determining residence. Students at colleges and universities in Texas, patients in hospitals and other institutions within the State, and civilian employees of the United States Government may be as transient as military personnel. But all of them are given at least an opportunity to show the election officials that they are bona fide residents.

Indeed, Texas has been able, in other areas, to winnow successfully from the ranks of the military those whose residence in the State is bona fide. In divorce cases, for example, the residence requirement for jurisdictional purposes, like the requirement for the vote, is one year in the State and six months in the forum county. The Texas courts have held that merely being stationed within the State may be insufficient to show residence, even though the statutory period is fulfilled. Even a declared intention to establish a residence may be not enough. “However, the fact that one is a soldier or sailor does not deprive him of the right to change his residence or domicile and acquire a new one.” Robinson v. Robinson, 235 S. W. 2d 228, 230.

We deal here with matters close to the core of our constitutional system. “The right ... to choose,” United States v. Classic, 313 U. S. 299, 314, that this Court has been so zealous to protect, means, at the least, that States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State. Oyama v. California, 332 U. S. 633. By forbidding a soldier ever to controvert the presumption of non-residence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment. “[T]here is no indication in the Constitution that . . . occupation affords a permissible basis for distinguishing between qualified voters within the State.” Gray v. Sanders, 372 U. S. 368, 380.

We recognize that special problems may be involved in determining whether servicemen have actually acquired a new domicile in a State for franchise purposes. We emphasize that Texas is free to take reasonable and adequate steps, as have other States, to see that all applicants for the vote actually fulfill the requirements of bona fide residence. But this constitutional provision goes beyond such rules. “[T]he presumption here created is ... definitely conclusive — incapable of being overcome by proof of the most positive character.” Heiner v. Donnan, 285 U. S. 312, 324. All servicemen not residents of Texas before induction come within the provision’s sweep. Not one of them can ever vote in Texas, no matter how long Texas may have been his true home. “[T]he uniform of our country . . . [must not] be the badge of disfranchisement for the man or woman who wears it.”

Reversed.

The Chief Justice took no part in the consideration or decision of this case.

Mr. Justice Harlan,

dissenting.

I.

Anyone not familiar with the provisions of the Fourteenth Amendment, the history of that Amendment, and the decisions of the Court in this constitutional area, would gather from today’s opinion that it is an established constitutional tenet that state laws governing the qualifications of voters are subject to the limitations of the Equal Protection Clause. Yet any dispassionate survey of the past will reveal that the present decision is the first to so hold.

In making this holding the Court totally ignores, as it did in last Term’s reapportionment cases, Reynolds v. Sims, 377 U. S. 533 (and companion cases), all the history of the Fourteenth Amendment and the course of judicial decisions which together plainly show that the Equal Protection Clause was not intended to touch state electoral matters. See my dissenting opinion in Reynolds v. Sims, at 589. If that history does not prove what I think it does, we are at least entitled to be told why. While I cannot express surprise over today’s decision after the reapportionment cases, which though bound to follow I continue to believe are constitutionally indefensible, I can and do respectfully, but earnestly, record my protest against this further extension of federal judicial power into the political affairs of the States. The reapportionment cases do not require this extension. They were concerned with methods of constituting state legislatures; this case involves state voter qualifications. The Court is quite right in not even citing them.

I deplore the added impetus which this decision gives to the current tendency of judging constitutional questions on the basis of abstract “justice” unleashed from the limiting principles that go with our constitutional system. Constitutionally principled adjudication, high in the process of which is due recognition of the just demands of federalism, leaves ample room for the protection of individual rights. A constitutional democracy which in order to cope with seeming needs of the moment is willing to temporize with its basic distribution and limitation of governmental powers will sooner or later find itself in trouble.

For reasons set forth at length in my dissent in Reynolds, I would dismiss the complaint in this case for failure to state a claim of federal right.

H-l HH

I also think this decision wrong even on the Court’s premise that it is free to extend the Equal Protection Clause so as to reach state-established voter qualifications. The question here is simply whether the differentiation in voting eligibility requirements which Texas has made is founded on a rational classification. In judging this question I think that the dictates of history, even though the Court has seen fit to disregard them for the purpose of determining whether it should get into the matter at all, should cause the Court to take a hard look before striking down a traditional state poliey in this area as rationally indefensible.

Essentially the Texas statute establishes a rule that servicemen from other States stationed at Texas bases are to be treated as transients for voting purposes. No one disputes that in the vast majority of cases Texas’ view of things accords with fact. Although it is doubtless true that this rule may operate in some instances contrary to the actual facts, I do not think that the Federal Constitution prevents the State from ignoring that possibility in the overall picture. In my opinion Texas could rationally conclude that such instances would likely be too minimal to justify the administrative expenditure involved in coping with the “special problems” {ante, p. 96) entailed in winnowing out the bona fide permanent residents from among the transient servicemen living off base and sending their children to local schools.

Beyond this, I think a legitimate distinction may be drawn between those who come voluntarily into Texas in connection with private occupations and those ordered into Texas by military authority. Residences established by the latter are subject to the doubt, not present to the same degree with the former, that when the military compulsion ends, so also may the desire to remain in Texas.

And finally, I think that Texas, given the traditional American notion that control of the military should always be kept in civilian hands, emphasized in the case of Texas by its own special historical experience, could rationally decide to protect state and local politics against the influences of military voting strength by, in effect, postponing the privilege of voting otherwise attaching to a service-acquired domicile until the serviceman becomes a civilian and by limiting Texan servicemen to voting in the counties of their original domicile. Such a policy on Texas’ part may seem to many unduly provincial in light of modern conditions, but it cannot, in my view, be said to be unconstitutional.

Thus, whether or not this Court has subject matter jurisdiction in this case, the judgment of the Supreme Court of Texas should not be disturbed.

       Texas Constitution, Art. VI, § 2:
      “Any member of the Armed Forces of the United States or component branches thereof, or in the military service of the United States, may vote only in the county in which he or she resided at the time of entering such service so long as he or she is a member of the Armed Forces.”
      The constitutional provision has been implemented by Article 5.02 of the Election Code of Texas which provides, in part:
      “Notwithstanding any other provision of this section, any member of the Armed Forces of the United States or component branches thereof who is on active duty in the military service of the United States may vote only in the county in which he or she resided at the time of entering such service so long as he or she is a member of the Armed Forces. This restriction applies only to members of the Armed Forces who are on active duty, and the phrase ‘time of entering such service’ means the time of commencing the current active duty. A re-enlistment after a temporary separation from service upon termination of a prior enlistment shall not be construed to be the commencement of a new period of service, and in such case the county in which the person resided at the time of commencing active service under the prior enlistment shall be construed to be the county of residence at the time of entering service.”
      In Mabry v. Davis, 232 F. Supp. 930 (D. C. W. D. Texas 1964), a three-judge court recently declared this same provision unconstitutional as violating the Equal Protection Clause of the Fourteenth Amendment.
      2 “The self-evident purpose of the amendment to the Constitution was to prevent a person entering military service as a resident citizen of a county in Texas from acquiring a different voting residence in Texas during the period of his military service, and to prevent a person entering military service as a resident citizen of another state from acquiring a voting residence in Texas during the period of military service.” 378 S. W. 2d 304, 305. (Emphasis supplied.)

       While many States have rules which prescribe special tests for qualifying military personnel for the vote, none goes so far as completely to foreclose from the franchise all servicemen who were nonresidents before induction.
      One other State, Nevada, has a provision which on its face seems as prohibitory as Art. VI, § 2, of the Texas Constitution. The Nevada Constitution provides that:
      “The right of suffrage shall be enjoyed by all persons, otherwise entitled to the same, who may be in the military or naval service of the United States; provided, the votes so cast shall be made to apply to the county and township of which said voters were bona fide residents at the time of their entry into such service Nev. Const., Art. 2, § 3. (Emphasis supplied.)
      But the Attorney General of Nevada has recently interpreted this provision to mean that servicemen such as petitioner can establish a voting residence in the State if they show their intent to remain by “clear and unequivocal evidence.” Op. Atty. Gen. Nev. 194, 197 (1961-1962).
      Under the Federal Voting Assistance Act of 1956, 69 Stat. 584, the Department of Defense collects and distributes to military personnel an analysis of state voter qualifications as applied to servicemen. The 1964 report states:
      “For voting purposes the legal residence of members of the Armed Forces is generally the State from which they entered military service. This home State remains as the only State in which a person in the Armed Forces has the legal right to vote unless certain conditions are met. Almost all States except Texas will permit persons in the Armed Forces to acquire a new voting residence within their jurisdiction. When this is accomplished, voting rights in the old State of residence are lost.” Voting Information 1964, Department of Defense, p. x.
      Constitutional and statutory provisions of other States which treat the military specially, do not absolutely prohibit any opportunity to prove residence. The Georgia Constitution, for example, provides that no member of the Armed Forces “shall acquire the rights of an elector by reason of being stationed on duty in this State.” Georgia Const., §2-702; see Indiana Const., Art. 2, §3; Oregon Const., Art. II, §5; Alabama Code, Tit. 17, §17. Other States distinguish between servicemen who live on the base, and those who have acquired homes in the community. Cf. Restatement, Conflict of Laws §21, Comment c.

       The constitutional provision at issue in this case seems designed more as a rule prohibiting a serviceman from ever acquiring a voting residence than a disqualification from the franchise. Prior to 1954, Art. VI, § 1, of the Texas Constitution included among the “classes of persons . . . not . . . allowed to vote in this State”: “5. All soldiers, marines and seamen employed in the service of the Army or Navy of the United States.” This clause was eliminated, according to the annotator’s notes, to “confer the privilege to vote upon members of the regular establishment of the Armed Forces.” 9 Vernon’s Texas Civ. Stat. 19 (1964 Supp.). The 1954 constitutional amendment, involved in this case, was added to the section which establishes residence qualifications for voters.

       9 Vernon’s Tex. Civ. Stat. (Election Code) Art. 5.08.

       See note 3, supra.

       Message of Governor Ellis Arnall to General Assembly of Georgia, p. 5 (January 3, 1944).

       The 1837 election law of the Republic of Texas, § 9, provided “That regular enlisted soldiers, and volunteers for during the war, shall not be eligible to vote for civil officers.” 2 Laws of Republic of Texas, p. 8, in 1 Gammel, Laws of Texas, p. 1350. “This provision was no doubt inspired by the mutinous conduct of the nonresident volunteers who had been recruited in the United States after the Battle of San Jacinto. They had defied the provisional government and on one occasion in July, 1836, had sent an officer to arrest President David G. Burnett and his cabinet to bring them to trial before the army. They had continued their rebellious conduct after Sam Houston became the first president under the Constitution of 1836. It was not until May, 1837, that Houston was able to dissolve the army and eliminate this threat to civil authority. This provision disfranchising soldiers in the regular army was placed in the 1845 Constitution of the State of Texas and has remained in each succeeding constitution. It was modified in 1932 to exempt the National Guard and reserve and retired officers and men.” McCall, History of Texas Election Laws, 9 Vernon’s Ann. Tex. Civ. Stat., pp. XVII-XVIII (1952).
      Other States which had similar provisions in their early constitutions included Alabama, Const, of 1819, Art. Ill, § 5; Arkansas, Const, of 1836, Art. IV, § 2; Indiana, Const, of 1816, Art. VI, § 1; Louisiana, Const, of 1845, Art. 12; Missouri, Const, of 1820, Art. Ill, § 10; South Carolina, Const, of 1790 (as amended in 1810), Art. I, § 4; Virginia, Const, of 1830, Art. Ill, § 14.
      The 1932 amendment to the Texas Constitution was replaced in 1954 by the present provision.

       None of the cases on which the Court does rely lends any support to its decision.
      In Pope v. Williams, 193 U. S. 621, the Court upheld a Maryland statute which required voters to have been registered in the State for at least a year. The Court said of the right to vote:
      “It is not a privilege springing from citizenship of the United States. ... It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the Federal Constitution [obviously referring to the Fifteenth and not the Fourteenth Amendment].... The question whether the conditions prescribed by the State might be regarded by others as reasonable or unreasonable is not a Federal one.” 193 U. S., at 632-633.

        Lassiter v. Northampton Election Bd., 360 U. S. 45, upheld the literacy test applied in North Carolina against an attack made on its face. The Court noted that:
      “Of course a literacy test, fair on its face, may be employed to perpetuate that discrimination which the Fifteenth Amendment was designed to uproot.” 360 U. S., at 53. (Emphasis added.)

        Gray v. Sanders, 372 U. S. 368, struck down Georgia's county-unit system for counting votes in a party primary election for the nomination of a United States Senator. It did not deal with voter qualifications.

        United States v. Classic, 313 U. S. 299, dealt with stuffing ballot boxes, and Ex parte Yarbrough, 110 U. S. 651, with intimidation of Negroes attempting to vote. Neither dealt with voter qualifications.
      None of the other federal cases cited by the Court was concerned in any way with voting.

       Tex. Const., Art. VI, §2, quoted in Court’s opinion, ante, n. 1.