(dissenting). I think a new trial should be awarded in this case for errors committed by the court below in his charge to the jury. The charge consisted of eight paragraphs. The first paragraph merely quoted the statute under which the defendant was indicted. In the second paragraph the court said to the jury;
“If you believe from the evidence that the inhibited article mentioned * * « was in the possession of the defendant—that is to say, in a place in the room, occupied by him in his residence and place of business—then such possession constitutes prim,a faeie evidence of the purchase, sale, dispensing, and distribution of the drugs in question by the accused, * * * and would warrant his conviction of the offense charged.”
This is an unusual statute, in that it does not undertake to prohibit the possession of opium, but does prohibit its purchase, sale, dispensing, or distribution, and makes the possession of the drug prima facie evidence of such purchase, sale, dispensing, and distribution. The penalties for its violation are severe. In the above-quoted portion of the judge’s charge he told the jury what possession was; that is, if a drug was found in a room occupied by the defendant in his residence and place of business, then that was such possession as constituted prima facie evidence, and would warrant- his conviction of the offense. The defendant did not deny that the opium was found in his room, where he slept, and consequently the judge’s charge amounted to telling the jury practically that the defendant admitted his guilt, because he admitted that the opium was found in a grip in a room where he slept. In other words, it seems to me that the court took away from the jury the right to find the fact of possession, because under this highly penal statute the fact of possession is one for the jury to find under proper instructions. Guilty knowledge of the presence of the inhibited drug played no part in the court’s instructions. I think the jury should have been told that, before a prima facie case was made out against the defendant, they should find beyond a reasonable doubt that he knozvinc/ly possessed the opium, and the question should have been left to the jury to say whether or not he *916did knowingly possess the drug; but, instead, the jury were told in effect that, if the opium was found where the defendant admitted it was found, then they would be warranted in finding the defendant guilty of purchasing, selling, dispensing, and distributing the drug. I cannot think that this error was cured by the subsequent paragraphs •of the judge’s charge.
In the fourth paragraph of the court’s charge we find this language:
"The court further charges you that you must consider this question in the light of all the facts and circumstances detailed to you and the reasonable and fair inferences to be drawn therefrom. You should take into account the manner and deportment of the witnesses when on the stand, their interest, if any, to give or withhold the truth, the reasonableness or unreasonableness of the explanation made of the possession of the drugs, as well at the time of the search of the premises and finding of the drugs, as that made upon the witness stand, and if, upon the whole testimony, you are satisfied that the ■drugs found belong to the defendant, or were in his possession and control at the time when found, you should find him guilty; otherwise, he should be acquitted.”
In other words, the court told the jury that, if they were ssCtis-fied that the drugs were found in the room which the defendant occupied, then they should find the defendant guilty, because the court, in paragraph (B), or 2, of his charge told the jury that the unlawful possession was complete, if the opium was found in a place in the room occupied by the defendant. This instruction seems to me to be manifest error, for the reason that the court should simply have told the jury that, if they were satisfied that the drugs were in his possession and he knew that they were in his possession, then this fact would raise a prima facie presumption that the defendant had violat■ed the law. It must be remembered that the defendant had testified anr1 stated that he did not know the drugs were in the room, and that .•they did not belong to him. The court, therefore, took the question of guilty knowledge from the jury. It seems to me that, if a person were indicted for having half a pound of opium in his overcoat pocket, and ■denied that he knew the opium was there, and offered to prove that on a thickly crowded street some miscreant had dropped the opium into his overcoat pocket without his knowledge, that he would have the right to present the question of his guilty knowledge to the jury, and the court should certainly tell the jury thht'the defendant would not be guilty, although the opium was in his overcoat pocket, if some one else had placed it there without his knowledge. But in the case at bar the court precluded this very vital question by telling the jury that, if the opium was found in the defendant’s room, that fact alone was sufficient to convict him.
Again, in paragraph 5 of the judge’s charge, marked (E) in the record, the court again tells the jury:
“This is a criminal case, and has to be proven by the government beyond a ■reasonable doubt, save that the government has the right to rely on the prima facie presumption arising from the possession of the inhibited drugs by the defendant, if such you believe to be the fact, until the defendant has properly .accounted for the presence of the drugs where found.”
*917I cannot get away from tlie belief that the jury under the foregoing instructions felt that they should find the defendant guilty upon the judge’s charge, and did find him guilty because the judge had told them what possession was and that possession raised a prima facie presumption of the defendant’s guilt.
The evidence shows that a number of other persons frequented the room in which the drug was found, and with these facts proven, and the defendant denying any knowledge of the presence of the drug in question, the question of guilty knowledge certainly should have been submitted to the jury, and the jury should have been told that a prima facie case was not made out against the defendant, unless the opium was in the defendant’s possession with his knowledge. When the court charged the jury that the case against the defendant had to be proven by the government beyond a reasonable doubt, he practically withdrew that instruction when he added the words, “save that the government' has the right to rely on the prima facie presumption arising from the possession of the inhibited drugs;” for, in the second paragraph of his charge, he had. in effect told the jury that the finding of the drugs where the defendant admitted they were found, and about which fact there was no controversy, raised such a presumption of guilt as would warrant the jury in convicting the defendant. It seems to me that the court below in substance charged the jury that the defendant was guilty because the opium was found in the room where he slept. It also seems to me that the court placed the burden of proving his innocence upon the defendant; whereas, after the defendant had testified, and denied any knowledge of the possession of the drug, then the case was like any other criminal trial, and the burden was upon the government to satisfy the jury beyond a reasonable doubt, not only of the guilty possession of the drug, but of its purchase, sale, dispensing, or distribution, and the following request of the defendant for instructions should have been given by the court, to wit:
“The jury are further charged that a person charged with the commission of a crime is presumed to be innocent, and that presumption follows him throughout every stage of the prosecution. * * * There is no shifting of the burden of proof. It remains upon the government throughout the trial. The evidence may shift from one side to the other, and the government may establish such a state of facts as must result in a conviction, unless the presumption they raise be met by evidence; but when the evidence is all in, if, upon a consideration of it as a whole, the jury entertains a reasonable doubt as to the guilt of the accused, they must find him not guilty, as the government has not sustained the burden of establishing Ms guilt beyond a reasonable doubt. The accused is not required to prove his innocence.”
Holding these views, I think a new trial should be awarded.