(Dissenting). — I reget that I cannot agree with the reasoning set forth nor the conclusions of Justice ■CUNNING-HAM in the foregoing opinion.
The evidence conclusively establishes the status of defendant's employers, Benson & Moody, as that of common carriers for hire. The defendant was the active agent in making the -contract of carriage with the owner Brown, as also in its execution. The evidence also conclusively shows that Brown in*385troduced twelve cases of whisky from Rodeo, New Mexico, into Arizona, under such contract of carriage, for the purpose ■of selling it in Arizona, and that he thereafter pleaded guilty to the charge of unlawfully introducing it. The defendant ■aided and assisted the principal, Brown, in the commission of the offense. The only question, it seems to me, is: Did he knowingly participate in its commission, or was he, as he would have one believe, ignorant of the character of his load from Rodeo, New Mexico, into Arizona? It certainly would ■strain to the breaking the credulity of the most gullible juror to ask him to believe defendant’s story that he did not know that his automobile was loaded with whisky at Rodeo to be ■conveyed thence into Arizona. But, be that as it may, the court told the jury if they found such to be the fact, they should acquit.
Under the prohibition amendment, as it existed at the time, it was not unlawful for Brown to bring into Arizona from New Mexico intoxicating liquor for his personal use. This batch was not, however, for his personal use, and the defendant would have to be more confiding and unsophisticated than the record shows him to be before I would believe he thought •so. If his story is to be believed, he simply shut his eyes, suppressed his smell, and likewise failed to “use a little wine for his stomach’s sake.” He exercised no care nor circumspection ; he asked no questions. I think if defendant knew that he was assisting Brown to bring the whisky into Arizona, or that he had reason to know and made no investigation or in•quiry, he broke not only the letter of the law but its spirit. Adams Express Co. v. Commonwealth, 160 Ky. 66, 169 S. W. 603. As is said in one case:
“Common carriers ought to obey the law just like other people, not in merely keeping its letter while breaking its -spirit, but keeping both letter and spirit under such circumstances as other people are expected to do.” Adams Express Co. v. Commonwealth, 129 Ky. 420, 18 L. R. A. (N. S.) 1182, 112 S. W. 577.
This language was used in reference to an express company -and its duty to exercise care in accepting shipments of intoxicating liquor into dry territory. I think it equally applicable i;o individuals and to agents of express companies. While it might be impossible for a carrier to definitely ascertain the *386purpose for which the shipper was introducing intoxicating liquors into Arizona, he could at least make some inquiry into the purpose. This the defendant did not do.
In the Sturgeon case (17 Ariz. 513, 154 Pac. 1050), it was decided that one who would escape criminal punishment for introducing intoxicating liquors into the state must successfully and satisfactorily establish that the liquor was introduced for a lawful purpose. It was there decided that it was, not necessary in the information or indictment to allege that it was not brought in for personal use; that being a matter of defense. Under this rule, when the prosecution has offered proof of an introduction of intoxicating liquors into the state, it has made out a prima, facie case authorizing a conviction of the person or persons who introduced the liquor, and, it having been proved that defendant and Brown acted together in the introduction of the liquor in question, a prima faciecase was made, and that prima facie case was not overcome. Defendant’s only defense was that he unconsciously participated in the transportation of the liquor from Bodeo, New Mexico, into Arizona, and this issue was submitted to the jury under instructions as favorable as he was entitled to, according to my view.
I think the judgment of the lower court should be affirmed.