State v. Hodges

Mitchell, J.

The appellant was convicted of the crime of bootlegging, that is, that on or about October 13, 1920, he did, unlawfully and feloniously, carry about with him for the purpose of unlawful sale certain intoxicating liquor.

Upon the appeal several assignments of error are made, all of which are without merit except the one that the verdict and judgment are contrary to the law and the evidence. The controlling facts are plain, simple, without dispute, and are as follows: About daybreak, October 13, 1920, the appellant, while coming down a trail from the foothills in Skagit county, carrying a small cask of liquor in a gunny sack on his shoulders, was apprehended by deputy sheriffs. Upon learning they were officers, he inquired whether he could not fix it up with them — if they would not take the liquor and let Mm go. His story was that he had found it in the woods while hunting and was taking it home for his own use. He told the same story while testifying at Ms trial. At the call of the case for trial, he offered to plead guilty to unlawful possession of intoxicating liquor, and throughout the trial objected to any other verdict or judgment against him. This was denied him, and the case was given to the jury on the charge of bootlegging and the lesser included offense of illegal possession of intoxicating liquor. A motion for a new trial, mentioning practically all of the statutory grounds, was denied.

The controversy hinges upon the applicability to the facts in the case of the statutory presumption that possession and proof of the possession of intoxicating liquor shall be prima facie evidence that the liquor was held and kept for the purpose of unlawful sale or disposition. Laws of 1917, ch. 19, p. 61, § 12; Rem. Comp. Stat., § 7329. That instruction was given to the jury. The laws of this state relating to intoxicating liquors, commencing with initiative measure No. 3 and including the amendments of 1917, have classified violations into two kinds, the one independent of intent, the other requiring a criminal intent.

Section 4 of the original measure, Laws of 1915, ch. 2, p. 3 (Rem. Comp. Stat., § 7309), reads as follows:

“It shall be unlawful for any person to manufacture, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor, or to keep any intoxicating liquor, with intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same, except as in this act provided.”

That is, it shall be unlawful to sell, barter, exchange, give away, furmsh or otherwise dispose of any intoxicating liquor, wholly independent of criminal intent, while it is further declared to be unlawful to keep any intoxicating liquor with intent to do any of those enumerated things with it. The measure provided for what is commonly known as the permit system, and § 23 p. 15, provided that, in any prosecution for the violation of the provisions of the act, proof of the possession of a greater amount of liquor or beer than allowed by a permit should be prima facie evidence that the liquor was so held and kept for the 'purpose of unlawful sale or disposition. By § 31, p. 16, persons convicted of any violation of the act should be punished by a fine or imprisonment in the county jail, or by both such fine and imprisonment. That is, all violations, whether criminal intent was involved in the transaction or not, were misdemeanors only.

The legislature of 1917, ch. 19, p. 46 et seq., abolished the permit system. This act amended the original one, initiative measure No. 3 (Laws of 1915, p. 2), by adding thereto a new section to be known as § 17h, p. 60 (Remington’s Compiled Statutes, § 7328), by which three new crimes were created, (1) making it unlawful for any person other than a regularly ordained clergyman, priest or rabbi actually engaged in ministering to a religious congregation, to have in his possession any intoxicating liquor other than alcohol; (2) the crime of being a jointist, and (3) the crime of bootlegging. The section provides that any person convicted of being either a jointist or a bootlegger shall be guilty of a felony and punished by imprisonment in the state penitentiary. By § 12 of this act (p. 61) [Remington’s Compiled Statutes, § 7329], §23 of the original measure was amended so as to omit any reference to the amount of liquor one might lawfully possess, as under the permit system, and is in all other respects the same, making possession and proof thereof of intoxicating liquor other than alcohol prima facie evidence that the liquor was so held and kept for the purpose of unlawful sale or disposition. Section 14, p. 61, of' the act (Remington’s Compiled Statutes, § 7338), by way of amendment repeats § 31, p. 16, of the original measure making violations of the law, for which punishment is not specifically prescribed, misdemeanors punishable by a fine, or imprisonment in the county jail, or by both such fine and imprisonment.

Thus, by the original measure and by the amendatory act of 1917, there have , been defined the crimes mentioned in § 4 of the original measure and the three mentioned in § 17h added by the legislature in 1917. Nor are we without a definition of the crime of bootlegging. Section 17h says: “Any person who carries about with him intoxicating liquor for.the purpose of the unlawful sale of the same be and hereby is defined to be a ‘bootlegger’ ” — a clear statutory definition of a crime consisting of two elements, the one material, the other mental, the one a fact, the other intent; carrying about with him intoxicating liquor for the purpose of the unlawful sale of the same, both of equal importance and need to be proven in order to convict. In the bootlegging case of State v. Hessel, 112 Wash. 53, 191 Pac. 637, where the defendant contended evidence was improperly admitted of separate and distinct unlawful sales of liquor, we said: “Here the guilty intent must be proven by acts other than the act of carrying liquor about and proof of sales was competent to prove that intent.” Counsel for the state relies somewhat upon the case of State v. Jewett, 120 Wash. 36, 207 Pac. 3. That case, however, is not inconsistent with the case of State v. Hessel, supra, nor with the conclusion we reach herein, because, while all of the facts and circumstances in the case, other than the unlawful possession of intoxicating liquor, from which the jury were entitled to find the intent and purpose on the part of the defendant, were not fully set out in the opinion, it is evident that there were such other facts and circumstances in that case.

In the present case, the inquiry of the appellant at the time he was arrested whether he could not fix the matter up with the officers is no more suggestive of bootlegging than it is of any one of several other crimes involving the possession of intoxicating liquor. Nor does the evidential presumption declared in § 17h of the act save the prosecution. Clearly the legislature did not mean by it that possession of intoxicating liquor and proof thereof should be.prima facie evidence that the liquor was held and kept for the purpose of unlawful sale — a purpose and intent essential in bootlegging — else the act would have so stated. On the contrary, the language is very clear that the possession of intoxicating liquor and the proof thereof shall be prima facie evidence that the liquor was so held and kept for the purpose of unlawful sale or disposition. There are crimes, some with and others without specific criminal intent, in disposing of intoxicating liquor other than making sales thereof, all of which are misdemeanors only, and in a situation like this where the only substantial evidence is simply possession (which of itself is a misdemeanor under the amendatory act of 1917), it will not do to hold that the statutory presumption shall be wholly appropriated for the purpose of establishing the felony of bootlegging. Such a construction of the statute would amount to speculation and venture rather than that degree of certainty and satisfaction which should characterize all convictions of crime.

Our conclusion is that the verdict and judgment are contrary to law and the evidence, and that the motion for a new trial should have been granted. It is so"' ordered.

Parker, C. J., Tolman, Holcomb, and Hovey, JJ., concur.