I am unable to concur in the foregoing opinion.
The statute (Rem. Comp. Stat., § 7328), in words too plain to admit of misunderstanding, makes it a felony for any person to carry about with him intoxicating liquor for the purpose of unlawful sale. By another section (Ib. § 7329) it provides in equally plain terms that, in any prosecution for a violation of the liquor acts, it may be shown that the accused person held and kept in his possession intoxicating liquors, and that such a showing "shall be prima facie evidence that said liquor was so held and kept for the purpose of unlawful sale or disposition." Putting these two sections of the statute together, obviously they mean, if they have meaning at all, that, when it is shown that a person has in his possession intoxicating liquors, and it is further shown that he carried the liquor about with him, aprima facie case is made against him to the effect that he carried the liquor about with him either for the purpose of unlawful sale or for the purpose of unlawful disposition. The fact that alternative conclusions can be drawn from the facts, and the fact that the one conclusion points to the commission of a felony and the other to the commission of a misdemeanor, do not affect the nature or effect of the proofs, nor do they relegate the questions to questions of law. The questions remain questions of fact, and it is for the trier of the facts to say whether the accused has committed the one crime or the other. To show that this is not a new interpretation of the statutes, nor a deduction of my own, I will call attention to certain of our prior decisions where the question was distinctly presented.
In State v. Jewett, 120 Wn. 36, 207 P. 3, there was a conviction for the felony of bootlegging. It was strenuously argued that the evidence was insufficient to support the conviction, because the proofs went no *Page 69 farther than to show possession of intoxicating liquor and a carrying about, and that the only evidence as to the purpose of the accused was his own to the effect that his purpose was not to sell the liquor. Answering the contention, we called attention to the presumption to which the statute gives rise, and used this language:
"It was for the jury to determine whether the testimony of the appellant was sufficient to overcome this statutory presumption."
In State v. Meyers, 121 Wn. 579, 210 P. 4, which was likewise a conviction for the crime of bootlegging, we held it not error for the trial court to give the following instruction:
"While you have heretofore been instructed that defendant is to be presumed innocent of any offense charged, yet, the statute has, with reference to intoxicating liquor, changed this rule to the extent that, when it has been proved to the satisfaction of the jury that a person is or was in the unlawful possession of intoxicating liquor, then the jury may presume that such possession was held for the purpose of the unlawful sale or disposition of the same."
In State v. Peck, 146 Wn. 101, 261 P. 779, the conviction was also for the crime of bootlegging, and we used this language:
"It is said, however, that there is no proof that the appellants were carrying the liquors about for the purpose of unlawful sale. But the statute provides that proof of possession of intoxicating liquor is prima facie evidence that such liquor is kept for the purposes of unlawful sale or disposition, and the statute is applicable to the offense of carrying about, — the offense which the legislature has called bootlegging. State v.Spillman, 110 Wn. 662, 188 P. 915. The presumption, it is true, is not a presumption of law; it is a presumption of fact only, and may be rebutted by evidence contradictory of the fact; but it is in itself sufficient to support a conviction unless overcome by evidence *Page 70 to the contrary, and whether it has been so overcome, is usually a question for the jury."
Since there are alternative conclusions which the trier of the fact may find from possession and carrying about, it is the practice of the prosecuting officers to show the surrounding circumstances, in order that the jury may have a better understanding as to the purpose of the accused, and in answering challenges to the sufficiency of the evidence, we have adverted to these circumstances as supporting the finding of the jury. These cases are numerous and I will not collect them here, but I have re-examined them with some care, and in none of them, with the exception of the case on which the majority rely, do I find any dispute of the principle announced in the cases I have cited. We have other cases, also, decided prior to the enactment of the so-called bootlegging statute, which seem to me to support the principle for which I contend. These are State v. Gray,98 Wn. 279, 167 P. 951; State v. Bachtold, 106 Wn. 550,180 P. 896, and State v. Conner, 107 Wn. 571, 182 P. 602.
In my opinion, the case relied upon by the majority (State v.Hodges, 121 Wn. 362, 209 P. 843) is not sound either in logic or in principle. Some of the objections to it are pointed out by the able dissenting opinion of the late Judge Bridges, but I wish to add a further thought. In that case it is said that:
". . . it will not do to hold that the statutory presumption shall be wholly appropriated for the purpose of establishing the felony of bootlegging,"
and the expression is repeated in effect in the case now before us. If I understand what is meant by the assertion, I find no fault with it. My complaint is with the court's application of the assertion. Since no complaint was made of the court's instruction to the jury in either case, it is safe to assume that the court *Page 71 charged the jury correctly in each case. If it did so correctly charge them, it told them that they could find from the evidence either one of three verdicts; they could find the accused guilty of the felony of bootlegging, they could find the accused guilty of a misdemeanor, or they could find the accused not guilty. To so charge the jury, is not to "wholly appropriate" the statutory presumption to the crime of bootlegging. All that it does is to permit the trier of the fact to make the appropriation. It is to charge the jury correctly as to the law, and leave it for them to say which of the offenses, if any, the accused had committed. This, in my opinion, is not error. The state, by its proof, aided by the statutory presumption, makes a prima facie case against the accused, and in the language of Judge Parker (Smith Sand Gravel Co. v. Corbin, 75 Wn. 635, 135 P. 472):
"Prima facie case means only that the case has proceeded upon sufficient proof to that stage where it must be submitted to the jury, and not decided against the plaintiff as a matter of law."
This being the rule, it seems to me obvious error to say that the jury may not draw its own conclusion. This is also the thought expressed by Judge Bridges, where he says:
"As the law now stands, it is unlawful to have in possession any amount of intoxicating liquor, or to barter, exchange or give away any such liquor, and such offenses are misdemeanors, all punishable alike. To say, as the court's opinion does, that the present presumption statute can apply only to these acts is to accuse the legislature of deliberately enacting an apparently important section of the statute, which, from a practical standpoint, is useless and without effect. To say that proof of possession of intoxicating liquor, which in itself is a misdemeanor, is prima facie evidence of intent to give away, barter, exchange, or otherwise dispose of such liquor, which in themselves are, *Page 72 under the statute, misdemeanors, would be to give a presumption where none is needed. I think the court's opinion does not expressly say that the statute applies only to these misdemeanors, but that is the effect. It says that, in a case of this character, the state must affirmatively prove the intent to sell. If so, then the proof more than covers the statutory presumption and makes it a dead letter."
I do not overlook the fact, emphasized by the majority, that the case of State v. Hodges, supra, was determined by the court sitting En Banc. But it will be observed that the case was determined by a bare majority of the court, and, if my interpretation of the later cases I have cited be correct, the court has, by a decided majority, already disapproved of its doctrine. To formally overrule it, is but to make that certain where uncertainty now exists.
But there are other matters in the majority opinion to which I cannot subscribe. The opinion carries the inference that the quantity of intoxicating liquor an accused person carries about with him may relegate his intent from a question of fact to a question of law. In my opinion, this is unsound. In the first place, the statute makes no such distinction. In the second place, it renders the application of the statutory presumption uncertain. If the amount shown to have been possessed in the instant case is not sufficient to make the question one of fact, the inquiry at once arises, what quantity will be so sufficient. Perhaps the difficulty can be illustrated by a reference to some of our cases. In State v. Duncan, 124 Wn. 372, 214 P. 838, the quantity possessed was one gallon, yet we held that the small quantity did not preclude the inference that it was held for the purpose of sale. In State v. Presta, 142 Wn. 539,253 P. 811, the amount possessed was something in addition to one gallon, and our ruling was to the same effect. I am aware that the majority, *Page 73 in referring to the latter case, states that there was evidence from which the jury might have found that the accused was, or had been, conducting a still from which he derived large quantities of moonshine whiskey for the purpose of sale. But I do not so read the case. There was evidence offered on the part of the state, and partly admitted, to the effect that the accused operated, or had operated, a still, but the court later struck the testimony and withdrew it from the consideration of the jury, and, in so far as this branch of the case was concerned, submitted it to the jury on the question whether the quantity above stated was sufficient to raise the inference of an intent to sell.
I assume that the majority do not question that these cases were correctly decided. If so, then we have the rule that the possession of one gallon is sufficient to raise the statutory presumption, while the possession of some less quantity is not. I object to the rule because of its uncertainty. It leaves to the trial courts no certain rule by which they can be guided. Hereafter, they will not know whether the statutory presumption is applicable to the particular case or not. It seems to me that, in every instance, be the quantity possessed great or small, the question of the intent of the possessor should be treated as one of fact rather than as one of law.
Nor can I subscribe to the facts assumed in the concluding part of the opinion. As I read the evidence, there was much more "than the possession of some moonshine whiskey in a two-gallon jug, no attempt being made to fix the amount." There was evidence that the jug had been placed by prearrangement in the place from which it was taken by the accused; there was an attempt to destroy the evidence of possession; and there were voluntary statements made by the *Page 74 accused showing guilty knowledge and guilty intent. Nor can I conclude that the evidence was entirely barren as to the quantity of liquor the jug contained. No infinitesimal quantity spilled on the floor of an ordinary automobile would leak through it so as to be visible upon the ground. These are matters which the jury had the right to consider in making up their findings, and, to my mind, justified their verdict, even conceding that the proof of possession and carrying about is not alone sufficient to support a verdict of bootlegging.
The judgment should be affirmed.
MILLARD, J., concurs with FULLERTON, J. *Page 75