(after stating the facts.) This is an appeal from a judgment convicting the defendant of selling liquor without license, and we are of the opinion that the judgment must be reversed because of error in giving the instruction set out in the statement of facts. Our statutes provide that in certain cases where a party is charged with selling liquor unlawfully, and is proved to have had a United States license for selling liquor in his house or building, such license “shall be prima facie evidence of the guilt of the party owning or controlling the house.” Sec. 5144, Kirby’s Digest. But if we take this boat as a house, within the meaning of the statute, there was a conflict in the evidence as to whether defendant was the owner or controller of the boat at the time the whisky was sold and the revenue license was found there. He testified positively that he had no interest in the boat, and that he was not the owner or controller thereof at that time. This being so, it was error for -the court to tell the jury that, if defendant had a revenue license at time he was charged with selling liquor, it was prima facie evidence of his guilt, and that they should convict him, unless defendant showed that he did not sell any liquor. The fact that he had the revenue license might be evidence against him for the jury to consider, but it could not be said to be prima facie evidence of his guilt unless it was shown that he was either the owner-or the controller of the boat when the whisky was said to have been sold.
We are of the opinion that the court correctly held that this statute which makes revenue license prima facie evidence against the owner or- controller of the house extends to all cases of unlawful selling of liquor vfliere it is shown that the defendant was at the. time of the sale either the owner or controller of the house where the revenue license was kept or found.
But for the reasons stated we are gf the opinion that the judgment must-be reversed, and the case remanded for a new trial.