The defendant was engaged in retailing men’s and women’s furnishing goods at Omaha. He was found guilty in the police court of that city under section 8896, Rev. St. 1913, of having caused to he published on Saturday, July 15, 1916, in an Omaha daily newspaper a misleading advertisment, which the complaint charged “contained statements of fact which were untrue, deceptive and misleading,” and that related to certain goods offered by him for sale. On appeal to the district court for Douglas county a jury was waived, and when the state rested a demurrer to the evidence was interposed by defendant and sustained and he was discharged. Alleging error, the state brought the case here under section 9185, Rev. St. 1913, for a decision upon the points presented in the bill of exceptions.
The statute (section 8896) makes it “unlawful for any person, * * * with intent to sell or in any wise dispose of merchandise # * * offered by such person * * * to the public for sale, * * * to * * * place before the public * * * in a newspaper * * * an advertisement regarding merchandise * * * so offered to the public, containing any assertion, representation or statement of fact which is untrue, deceptive, or misleading.” The advertisement complained of occupied about a quarter of a newspaper page and *13was partly in display type. It was in evidence, and the proof wás clear, that on the 15th day of July the defendant advertised for sale, among other articles, “$1.00 B. Y. D. Union suits, now 49c.”. The necessary question of fact to require conviction was that this advertisement was “untrue, deceptive, or misleading. ’ ’
In the present case the negative allegation that defendant did not have for sale the goods advertised involved a matter peculiarly within his knowledge, and very difficult, if not impossible, to prove by any one other than the defendant himself, and, as he could not be compelled to incriminate himself, his evidence upon that point could not be produced by the state. Only two witnesses were called, Mr. Searles and Mr. Garrett, who testified on the part of the state. Searles said that on August 16, 1916, he talked with the defendant at his store. He testified: “I remarked to him that about a month' ago he had some B. Y. D. underwear advertised for 49 cents a suit; and asked him if he still had that underwear on sale. He said ‘Yes, sir;’ and started to wait on me; and a young man, * # * Bernstein, was standing close by, and he told the young man to show this gentleman that underwear. * * * I said, ‘Is this the B. Y. D. underwear? Did you sell out everything except that?’ He said, ‘Yes, sir;’ spread the underwear out; I looked for the brand B. V. D. * * * and I did not find the B. Y. D. brand on it.” The witness at the" time purchased a suit for 49 cents, which it was stipulated was not the B. Y. D. underwear garment. Garrett testified that on August 8, 1916, he was' approached by one of the clerks in defendant’s store and said to him: “Have you got any of'those B. Y. D.’s left that you advertised on July 15? And he said*.‘Yes; we have.’ And he led me over to a counter and showed me some of the garments. I looked them over, and I did not see anything left like that.” That is, the defendant told the witness Searles that he had on hand the same goods that he had advertised July *1415 as B. Y. D., and instructed his clerk to show them to the witness. When the goods were examined, they were found not to be the B. V. D. goods. This evidence clearly tended to prove that defendant did not have the well-known B. Y. D. underwear for sale as advertised, and that the advertisement was for the purpose of misleading the public. Garrett’s testimony is that in. defendant’s store he was shown goods that were said by those in charge of the goods to be the goods advertised as B. Y. D., and that they were not B. V. D. goods.
Defendant invokes the familiar rule that one 'cannot be convicted of a crime on his own unsupported statement or confession made out of court that a crime has been committed, and cites Sullivan v. State, 58 Neb. 796. That case does not seem to be in point. No material negative element of the crime there charged was “peculiarly within the knowledge of the defendant.” In the Sullivan case it was held that, “while a voluntary confession is insufficient, standing alone, to prove that a crime has been committed, it is competent evidence, of that fact, • and may, with slight corroborative circumstances, be sufficient to warrant a conviction. ’ ’
It is a familiar rule that a prima facie case of theft is made out by showing the defendant in the recent and unexplained possession of stolen goods. Ordinarily where a negative is an essential element of the crime, the burden is on the state to prove it. “But where a negation is peculiarly within the knowledge of the defendant the burden is. on him to establish that fact. Thus, where a charge is that the defendant carried on a certain business without a license, the fact that he has a license is peculiarly within his knowledge and he must establish that fact or suffer conviction. Likewise the burden of proving that a certain offense against property was committed without the owner’s consent rests on the accused, that being a fact peculiarly within his knowledge.” 8 R. C. L. 173, sec. 165.
*15The district court erred in sustaining the demurrer of defendant to the evidence. The opinion in this case under the provisions of section 9185, Rev. St. 1913, only determines the law of the case. The exceptions of the state are sustained.
Exceptions sustained.
Morrissey, C. J., Letton and Rose, JJ., dissent.