dissenting:
The majority opinion deals with the case as if it were one merely of interstate transportation of liquor. It is upon this point that I am constrained to dissent.
The liquor was found and seized under search warrants regularly issued and executed in accordance with the prohibition act, hereinafter more particularly referred to. And the vital fact proved in the case by the Commonwealth is that the -liquor in excess of the quantity allowed by law to be transported within the State was found in the possession of the accused within the State in a place other than the home of the accused. The liquor consisted of fifteen pints of whiskey belonging to the accused, Martin, arid three quarts, two pints, and one pint bottle two-thirds *724full belonging to the accused, White, and was found in the city of Roanoke on the “Memphis Special” train, in the dining car thereof, in. places therein occupied by the accused respectively. The first-named liquor was in a grip, up on a pantry shelf covered by a coat belonging to Martin, who first denied that there was any whiskey on the car, but who after such liquor was- found admitted that it was his. The other liquor was in a locker occupied by White on a high shelf in .the pantry near the top of the car, and White admitted after the liquor was found that this liquor’ was his. Further,: $49.00 was found upon the person of Martin, all consisting of one dollar bills, except three two-dollar bills; and $145.00 was found on the person of White, consisting of denominations of probably one twenty-dollar bill and of ten-, five-, and one-dollar bills, but mostly one-dollar bills.
Section 28 of the prohibition act of the State (Acts 1916, at p. 232), so far as material, provides as follows: “Whenever ardent spirits shall be seized in any room, * * * car or other place searched under the provisions of this act, the finding of such ardent spirits * * * in any such place shall be prima facie evidence of the unlawful selling, keeping and storing for sale, gift or use, by the person or persons occupying such premises * * * and -the person in charge of the premises where such ardent spirits are found * * * shall be tried on the charge of selling, and keeping and storing for sale unlawfully such ardent spirits, under the indictment and form prescribed in section seven of this act * * *.”
Section 65 of the same act, so far as material, provides as follows: “The possession by any person of any ardent spirits, at any place other than his home, except as provided in this act, * * * shall, in any proceeding or prosecution under this act, be prima facie evidence that such person. possesses such distilled liquors * * * for the purpose of sale * * *.”
*725It will be observed that section 28 above quoted goes beyond section 65 also above quoted, in its effect, and makes the finding of the liquor in such a place as it was found in the case in judgment not merely prima facie evidence of the purpose of sale of it, b.ut such evidence of the factum itself of the “unlawful selling, keeping and storing for sale, gift or use by the person or persons occupying such premises” of such ardent spirits.
The indictment in the case in judgment is under section 28 and not section 65 aforesaid, and is in the form prescribed by section 28 and charged the accused with the said offenses mentioned in said section 28.
The verdict of the jury found both of the accused guilty as charged in the indictment.
In view of the facts above mentioned, which were proved by the Commonwealth, there can be no doubt that there was-ample evidence to sustain the verdict of-the- jury in finding as they did, in effect, that the accused were guilty of the “unlawful selling, keeping and storing-for sale, gift or use” of- ardent spirits on said train in the city aforesaid and within the State of Virginia, contrary to -the provisions of- said statute-; even if the'accused had testified that they had the liquor with them for the sole purpose of the interstate transportation of it, or had offered or there ,had been other evidence in the cause tending to. rebut the prima facie case to the contrary, made against them by the evidence-for the Commonwealth as aforesaid. As a matter, of fact, however, neither of the accused testified in explanation of their possession of the liquor aforesaid; and there was no evidence in the case,, or offered, even tending to show that the accused were not guilty of the “unlawful selling, keeping and storing-for sale, gift or use” of the liquor as aforesaid, except the sole circumstance that the accused were themselves on an interstate journey. Now manifestly the fact that the accused were themselves on an interstate *726journey was not in itself conclusive of .the fact., that the liquor was on such a journey. It may or it may not have been. That was a question of fact for the jury upon all .’the evidence in the case when such evidence was weighed as prescribed by said statute. It was for the jury to say whether the prima, facie case made by the evidence for the Commonwealth, as aforesaid, was rebutted by the mere fact that the accused were themselves on an interstate journey under the circumstances disclosed by the evidence. And under the statutory rule applicable to the evidence, as it must be regarded in this court after verdict, it is plain, as it seems to me, that the verdict aforesaid cannot be disturbed by us.
Of course, if there were no provisions of statute, such as that aforesaid, giving to the finding of the liquor, as. aforesaid, the effect of the prima facie evidence aforesaid, the case would be different. But that statute is a police regulation arid applies to all ardent spirits in excess of the quantity allowed by law to be carried with them by travelers, when seized and found, within the State, as in the case in- judgment. And the fact that one found in possession of the liquor so seized is himself on an interstate journey, is manifestly immaterial, if the liquor itself is not on such a journey. If the liquor is being sold, or kept or stored for sale, gift or use within the State, as the traveler passes through it, the interstate character of the journey of the traveler cannot be rightly held to exempt him from punishment for violation of the statute of the State prohibiting such sale, keeping and storing for sale, gift or use. Hence, the statute aforesaid applies the prima facie presumption aforesaid to the finding .of the ardent spirits within the ' State under the circumstances aforesaid regardless of the nature of the journey of the person or persons in whose possession it may be found; and in such case, under the statute, the liquor is prima facie not on an interstate jour*727ney—the case is not prima facie one of the interstate transportation of liquor—although the person found in possession of it may himself be an interstate traveler.
And but slight reflection makes it apparent that a different holding, such as that of the majority opinion, must result in nullifying the statute aforesaid to the extent of rendering its provision as to prima facie evidence aforesaid inapplicable to all violators of the law who may adopt the device of doing so as interstate travelers. All that such an one need do is to become an interstate traveler, and he will thereby become exempt from the rule of evidence aforesaid to which all intrastate travelers are amenable; and he may sell, keep and store for sale, gift or use, ardent spirits, as he passes through the State, and be exempt from punishment, unless the Commonwealth should chance to be able to produce evidence of an actual unlawful sale, gift or use thereof. By such construction of the law interstate travelers are put in a class by themselves, exempting them from' the operation of a very important and vital provision of the State statute—so vital, indeed, that, as experience has shown, the statute will be rendered practically nugatory as to such travelers. I cannot give my assent to such a construction of the law. I am of opinion that under our system of government interstate travelers are as much subject and amenable to all the police statutes of a State as are intrastate travelers and citizens of the State; and there is no decision of any of our courts, State or Federal, to the contrary, of which I am aware, nor can be in accordance with true legal principles.
In the case of United States v. Gudger, 249 U. S. 373, 39 Sup. Ct. 323, 63 L. Ed. 653, cited in the majority opinion as controlling the case in judgment, the fact affirmatively appeared on the trial that that was a case merely of interstate transportation of liquor—a case where the “sole intention” (of the accused) “was to carry the liquor with *728him” from without, thence, through the State of Virginia, into another State “to be there used as a beverage.” That was the fact conclusively appearing against the Commonwealth in that case. If such had been the fact in the case in judgment, the Gudger Case would have been controlling of it, but not otherwise. And, as we have seen, such fact did not conclusively appear in the case in judgment. It was in issue before the jury and was found against the accused upon ample evidence to sustain the verdict.
I am, therefore, of opinion that there was no error in the refusal of the trial court to set aside the verdict, and on this point I am constrained to dissent from the majority opinion.