If the prevailing opinion interprets the decision in State v.Hodges, 121 Wn. 362, 209 P. 843, as meaning that the statutory presumption is not applicable to bootlegging, I am unable to concur with the prevailing opinion, and I am convinced that the sooner that decision is overruled, the better.
Neither can I see that there is any difference in principle because the amount of liquor was not so great in this case as in some of the cases distinguished in the opinion herein, as tending to show that the necessary element of intent to sell was proven.
As I view the law, our cases, with the exception of theHodges case, supra, have always held that, where there was evidence of possession of a quantity of intoxicating liquor and carrying it about by the accused, two elements are proven, namely, unlawful possession and carrying about, and the third element, whether there was then the existing intent to sell, is a question for the jury under proper instructions. State v.Jewett, 120 Wn. 36, 207 P. 3; State v. Duncan, 124 Wn. 372,214 P. 838; State v. Gleen, 135 Wn. 153, 237 P. 292;State v. Presta, 142 Wn. 539, 253 P. 811; State v. Peck,146 Wn. 101, 261 P. 779.
The quantity of liquor here discovered was considerable, was comparable to that in State v. Duncan, supra, and the conduct of the parties upon discovery was *Page 67 similar to that of the accused in that case. That case was decided after the Hodges case, and it was decided that it was ruled by the Jewett case, State v. Meyers, 121 Wn. 579,210 P. 4 and State v. Christensen, 122 Wn. 236, 210 P. 376, — all bootlegging cases.
In all of these cases, and others I cannot now recall, this court has held that the statutory presumption applies to bootlegging cases whenever the unlawful possession and carrying about of intoxicating liquor has been shown. Any explanation made by the defendant is to be weighed and determined by the jury.
The evidential presumption under the statute is expressly made sufficient in itself prima facie to overcome the presumption of innocence, else it has no meaning at all. State v. Gray,98 Wn. 279, 167 P. 951; State v. Bachtold, 106 Wn. 550,180 P. 896; State v. Conner, 107 Wn. 571, 182 P. 602; Statev. Duncan, supra.
In this case, the jury was properly instructed in the language of the statute as to the offense and the statutory presumption.
The considerable quantity of intoxicating liquor possessed by appellants, the haste of the wife, upon being stopped by the sheriff and doubtless recognition of him, to get rid of the liquor; the hiding of the liquor in a gunny sack; an admission by the husband to the officer that, had he not been stuck in the mud for an hour and a half, the sheriff would never have caught him; his previous conviction; their lame excuses for the possession of the liquor; all made it a question for the jury, whether or not they were in possession of the liquor and carrying it about with them with intent to sell.
In my opinion, there was ample evidence to go to the jury, and the jury having resolved it against appellants, the verdict should not be disturbed and the judgment should be affirmed. *Page 68