(dissenting).
I regret exceedingly that I cannot see my way clear to agree with my Brethren in this cause. The majority of the court concede that there were no errors of law committed in the court below. They must concede that the only question which the record presents is a question of fact, and this question of fact, having been properly submitted to and passed upon by the jury, should not be disturbed, except in extreme cases — in other words, the record should overwhelmingly convince this court that the verdict of the jury was wrong upon the facts. In my humble judgment this is not done; but, upon the *149other hand, there is ample testimony to sustain this verdict. The reporter will set out in full the instructions given for both the state and the defense, in order that it may be seen that the jury were not only properly charged, but that they were instructed on behalf of the defendant from every conceivable viewpoint that the evidence would permit.
Section 1747 of the Code, as amended by chapter 115 of the acts of 1908, provides, among other things, as follows: “The fact that any person shall be found in possession of appliances adapted to retailing such liquors shall be presumptive evidence that the person is engaged in keeping for sale . . . intoxicating liquors contrary to law.” I am unable to draw any distinction between the instant case and Gillespie v. State, 96 Miss. 856, 51 So. 811, 926. I have carefully read the record in the Gillespie case, and the facts in that case are strikingly identical with the facts in the instant case. In both cases a portion of the intoxicating liquors were kept concealed; empty beer bottles were found in large numbers; empty glasses with fresh beer in them were found; corkscrews and beer openers were at hand, and the places where they were — in fact, everything well calculated to convince a jury, composed of reasonable men, that the defendant did not have this large quantity of intoxicating liquors on hand for her sole use and benefit, but upon the other hand, is presumptive evidence of guilt under that portion of the statute hereinbefore quoted, and placed upon the defendant the. burden, at least, of making some explanation.
In the first place, the defendant in the instant case, when the officer first appeared with his search warrant, and after he had found ten quarts of beer in the ice box, denied that she had any other intoxicating liquors on the premises; but the officer of the law found an additional quantity in a .tub in the yard, covered up with old clothes and weighted down with coal. The proof shows *150that seventy-two quarts of beer reached this house on Saturday night, about ten or eleven o’clock, and that on the following morning thirty-six quarts had been consumed by the inmates of that establishment, consisting of four girls. Jn other words, each girl had consumed ■nine quarts of beer and was sober — not intoxicated; and everything about this establishment indicated that this large quantity of intoxicating liquors was not kept for private use. It does not require a very great stretch of the imagination to conclude that this house was a bawdyhouse. However all this may be, this court is encroaching upon the province of the jury when it undertakes to reverse this case upon the facts shown in the record. It is respectfully insisted that the majority opinion of this court (and it must be borne in mind that this is simply a court of review) is not at all consistent with the course of a court of review. The rule in such eases is that if there is any evidence at all to support the findings of the jury, there being no error in the record, the verdict- should not be disturbed.
No one questions the right of an individual to purchase, for his own use, as many quarts of beer or as many gallons of whisky as his thirst demands. There is very little danger that any “gentleman of standing,” in whose possession may be found quantities of beer and whisky, is apt to be convicted of violating the liquor laws by a jury. A person’s standing in the community has a great deal to do in forming, and in shaping, and leading to a conclusion, the judgment of a jury. It is not usual for the innocent to keep hid out in the back yard intoxicating liquors, in a tub covered with old clothes, and weighted down so as to conceal the same from the passer-by; nor is it usual and customary to find empty beer glasses, with fresh beer in them, in every room in the house. While “wine, women, and song” are frequently found together, yet, at the same time, we are not authorized, innocent though we may *151be, to shut our eyes to a matter of common knowledge, and that is that bawdyhonse keepers are not in the habit of furnishing beer and other intoxicating liquors free of charge to' their inmates, but, upon the other hand, such things are kept as additional revenues to these dens of infamy; and those who go there are expected, “while they enjoy the songs of the sirens,” to pay the fiddler by purchasing beer and paying exorbitant prices for these “incidental” amusements. These “incidentals” are a part of the traffic. They assist largely in maintaining the “dignity” of the establishment. It is true there is no direct evidence in this record that the appellant kept a bawdyhonse, yet here and there through the record, are seen glimpses of those things which indicate that such is the case. At all events, the jury in this case, so far as the record shows, ‘ fairly and impartially considered the facts; and it should be a very extreme case in order to justify this court in setting aside the verdict of a jury.
This court need not be at all sensitive about a violator of the liquor laws being unjustly punished. Long experience and observation of the writer of this opinion, in the nisi prius courts, convinces him that a large percentage of those who violate the prohibition laws escape punishment.. The courts cannot be too rigid in the enforcement of a law, the violation of which is the mother of so much evil and crime — the ruin and degradation of so many of our people.
ON SUGGESTION OP ERROR.
Smith, J.,delivered the opinion of the court.
An examination of the original record in the case of Gillespie v. State, discloses that it is, if anything, a weaker case for the state than the one at bar, and, consequently, I am of the opinion that we erred in reversing the judgment of the court below. That case, which will be found' reported in 96 Miss. 856, 51 So. 811, de*152cided three propositions: 4 First, that the statute, in question was constitutional; second, that the evidence of the appliances found in appellant’s possession was sufficient to raise the presumption of guilt created by the statute; and, third, that the court below complied with the statute in granting the instrucitons to the jury. As reported in each of these reports, the case is of no value on the second proposition, for the reason that neither of them contain a statement of the facts. In that case appellant was found in possession of intoxicating liquor in bottles of convenient size, and, in the language of the witness, “there were whisky glasses and common tumblers setting around.” In one room of the house empty beer bottles, with a little beer and' foam remaining in them, were found on the table. In the case at bar appellant was found in possession of intoxicating liquor in bottles of convenient size, glasses, waiters, a beer opener, and an ice box containing beer on ice. Empty beer glasses, with fresh beer in them, were found in every room in the house. There was also some other evidence in each of these cases indicating that beer had been recently drunk on the premises, and in each case, after appellant had denied having intoxicating liquor in possession, such liquor was found on the premises, appellant’s residence, some of it concealed in the yard.
It -is true that the possession of the appliances found on appellant’s premises is consistent with her innocence, and, were it not for the statute in question, no inference of guilt could be drawn therefrom alone; but since the legislature has made such possession evidence of guilt, it is ordinarily for the jury, and not the court, to say whether it is sufficient to constitute proof thereof. Of course, the presumption of guilt raised by the statute will be stronger or weaker, according to the character of appliances found and the circumstances surrounding their possession. The evidence introduced by appellant, if true, was sufficient to overthrow the *153prima facie case she was called upon to meet; but the credibility of the witness delivering it was for the determination of the jury, and an examination of this testimony will disclose that they'were well warranted in rejecting it.
As I am in accord with the views heretofore expressed by my Brother McLean, it follows that the former judgment herein must be set aside, and the judgment of the court below affirmed. Affirmed.
Mayes, O. J.(dissenting on the sustaining of the suggestion of error).
In the original opinion filed in this case I have substantially stated the facts. There is no hint in this record, falling from the lips of any witness, that Jennie Minter was keeping a house of bad character. As was stated in the opinion, the proof in the case only shows that thirty-six bottles of beer belonged and were found in the room of appellant. She is charged with keeping intoxicating liquors for sale. Ten bottles were found in an ice cooler in her house and twenty-six bottles were found in the yard in a tub. "Where the liquors were found seems to me to be immaterial, since mere possession did not constitute guilt. We must interpret human nature as we find it, and not as we would have it. When homes are to be raided in the search for intoxicating liquors, we may expect the timid and the fearful to hide it from the officers of the law. Since the statute does not condemn the mere having of the intoxicating liquor in possession, it cannot matter where it is kept. In the Stansberry case, 53 So. 783, and the Hill case, 56 So. 346, this court has held that mere quantity, in the absence of proof of other unlawful purposes, even under the statute, cannot justify a conviction of having intoxicating liquors for purpose of sale or,giving away in violation of law. In the Stansberry case, Stansberry had a gallon of gin and four quarts, or a gallon, *154of whisky. This court said a conviction could not stand, even under the statute in the case. In the Hill case, the court said the same on facts which showed about the same quantity of whisky.
What is this statute, to which such strong appeal is made % When the statute is examined and analyzed, it is narrower than the scope given it by this opinion of the court in this case. The legislature designed to keep it within constitutional limits, but the court is about to press it beyond those limits. The statute does not say what the court has construed it to mean, in my judgment. The statute in question is section 1747 of the Code of 1906, as amended by acts 1908, p. 117, sec. 1, and it provides, in substance, that the having of a revenue license from the United States government, authorizing the selling of intoxicating liquors, shall be prima facie evidence that any person having such license is engaged in keeping for sale, or to be given away to induce trade, or in selling liquors, in violation of law. No proof warranting a conviction under this clause of the' statute is found in the record. Again, the statute provides that any person “who shall be found in possession of appliances adapted to retailing” shall be presumed to be engaged in violating the 'liquor laws, as above stated. If this conviction is to stand, it must rest alone on the fact that when this home was raided the policemen found a waiter, a corkscrew, and some tumblers. These were the only “appliances” that any witness says were found in this house. These cannot be said to be “appliances adapted to retailing liquors” in any sense of the statute, because they are articles of necessary household utility, and not a single householder but that could be prosecuted and convicted under the statute. The finding of thirty-six bottles of beer at this house is not proof of anything, because this court has so held in two cases.
My own view is that the statute making the having of appliances adapted to retailing prima facie evidence of *155guilt strains the- constitutional power of the legislature to its utmost limit. It is possibly within the constitutional power of the legislature to prohibit whisky from being imported into this state or kept in any home; but, if it be conceded that the legislature have this power, they have not done it, and until they have exerted the power intoxicating liquors may be kept in a home in moderate quantities, without being any kind of proof of a violation of the liquor laws of the state. However much it may be desirable to enforce the prohibitory laws of the state, this court cannot allow itself to be swept from its judicial poise, and affirm convictions on facts which neither prove nor tend to prove any violation of the law.
It is my judgment that in this case there was no proof to go to the jury.