(dissenting) — I dissent. There are three elements in the statutory crime of bootlegging; possession, carrying about, and intent to sell. It is my position that, where one is charged with this offense, the state must affirmatively prove the possession and the carrying about, and that proof having been made, the statute furnishes prima facie evidence of the third element, to wit, the intent to sell. This statutory prima facie case may, of course, be overcome by affirmative proof. It seems to me that the court’s opinion falls into a fundamental error in giving the so-called presumption statute the same, or substantially the same, meaning it had under initiative measure number three. Under that statute (Laws of 1915, ch. 2, p. 2), it was a misdemeanor to “sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor,- . . .,” or to have any in possession in excess of a designated amount; possession within that amount be-, ing lawful. Under that act, proof of possession of. more than the lawful amount was made prima facie evidence of intent to unlawfully sell or dispose of it. Laws of 1915, ch. 2, § 23, p. 15. The 1917 act added the three important crimes of having possession of any amount of liquor, bootlegging and operating a joint, and amended the former presumption statute by eliminating from it the idea that it was lawful to have in possession any amount of liquor. Without doubt, the old statute applied to sales, barters, exchanges, giving' away, or other disposition. Such a construction would give it the force which the legislature intended it should *369have. The new presumption statute is made to apply to an entirely different situation and to entirely different offenses. We must assume that the legislature deliberately and for a purpose enacted the present presumption statute, and we must give it such force as it is apparent the legislature intended it should have.
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, 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. In my opinion, it was because the legislature knew how difficult it would be for the state to affirmatively prove the intent to sell that it enacted that proof of possession should be “prima facie evidence that said liquor was so held and kept for the purpose of unlawful sale.or disposition.” By this provision it intended to place on the defendant the burden of proving what he intended doing with the liquor *370found in Ms possession and which he was carrying about.
But it is said that since the proof of possession under the present statute is prima, facie evidence that the liquor is kept for “unlawful sale or disposition,” if there is no affirmative proof, the jury is left to guess and speculate whether the liquor is held and kept for “sale” or “disposition.” This argument is probably sound if the words “sale” and “disposition” have different meanings — if they do not mean the same thing — 1 if “disposition” means to barter, give away and the like, because without affirmative proof there would be notMng before the jury by which it could determine whether the intent was to sell or otherwise dispose of the liquor. To hold that these words, as used in the statute, have different meanings would be to require the state to show affirmatively that the intent of the person possessing and carrying about was either to sell or make other disposition of the liquor; but if the state must make this proof, then it is deprived of any beneficial use of the presumption statute. In order to give vitality to this section, it is necessary to hold that the words “sale” and “disposition” mean the same tMng — to wit, sale. To apply it to the misdemeanors only, would be to strangle it; to apply it to the crime of bootlegging would be to give it force.
I think the judgment should be affirmed.