On January 26, 1924, defendant's premises in the city of Missoula were searched by the officers of Missoula county for intoxicating liquors. Twenty-one pints of Sunny Brook whisky were found, in an apparently original package or case, in an unfinished portion of the cellar underneath his residence, and seven pints of acknowledged illicitly made liquor were found in a wash-boiler hanging in a shed about eighty feet from the defendant's house, but on his premises and under his control. The case containing the Sunny Brook whisky was nailed tightly when found, and more or less dusty. On the outside of the box were printed in large letters the words "Sunny Brook," and also the label "Pure food whisky." A row of cabins designed for the accommodation of bachelors and others desiring inexpensive quarters for lodging was arranged along on either side of the building in which the acknowledged illicit liquor was found.
The defendant was tried on March 14, 1924, before a jury, for unlawfully possessing intoxicating liquors and found guilty. The appeal is from the judgment of conviction and order denying defendant's motion for a new trial. *Page 32
At the close of the trial, and upon the settlement of the[1, 2] instructions, the defendant asked the court to give the following instruction: "You are instructed that the possession of the twenty pint bottles of Sunny Brook whisky found in the defendant's home was in his lawful possession, and that you cannot convict him for the possession thereof, nor is the same to be held against him in deciding the merits of this case." The request was refused, and error is assigned because of the court's action.
It is unnecessary to discuss the question whether the evidence sustains the verdict and judgment as to the defendant's unlawful possession of the liquor found in the shed or outhouse. The admitted facts in the case clearly bring it within the rule declared in State v. Sawyer, 71 Mont. 269, 229 P. 734, andState v. Peters, 72 Mont. 12, 231 P. 392. Our inquiry, therefore, will be limited to the question whether the facts warranted the court in submitting to the jury the question of defendant's unlawful possession of the Sunny Brook whisky.
The court gave the following instruction: "The court instructs the jury that the possession of intoxicating liquors by any person not legally permitted by law to possess such liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of the law; but it shall not be unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling, and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed and used." This instruction is a copy of section 11079, Revised Codes of 1921, as amended by section 3, Chapter 116, Laws of 1923, which imposes upon the possessor of intoxicating liquor the burden of justifying its acquisition, possession and use. *Page 33
The defendant admitted possession of the Sunny Brook whisky found in the basement of his home. Presumptively the possession was unlawful, and his admission constituted a prima facie case for the state, and, in the absence of evidence explanatory and in justification of his possession, will sustain a conviction. Possession having been admitted, it was incumbent upon the defendant to produce sufficient evidence to create in the minds of the jurors a reasonable doubt of the legality of his possession before he was entitled to an acquittal by the jury. Therefore the conviction must be sustained if the record discloses facts of probative value justifying the court in submitting the question of the unlawful possession of the Sunny Brook liquor to the jury, along with the question of the illegal possession of the acknowledged illicitly made liquor.
It must be conceded that the admitted possession was[3] evidential and constituted a prima facie case against the defendant; and, unless the evidence on the part of the defendant in explanation of his possession was so convincing in character to a fair and impartial mind as to destroy the probative value of the presumption and consequent prima facie case on the part of the state, there was a case made for the jury. The law, well established in such cases, is that this court will not disturb the judgment if there be, measured by the foregoing rule, a substantial conflict of evidence on a material fact. (State v. McMillan, 20 Mont. 407, 51 P. 827; State v. McIlwain, 60 Mont. 598, 201 P. 270.)
The defendant's testimony as to how he came into the[4] possession of the liquor in question is uncontroverted by any oral evidence. He declared that he had bought two cases of the kind, in the fall before prohibition went into effect, from Oscar Engstrom who ran the Falstaff saloon in Missoula, and that the liquor seized was the remaining portion of that purchase. At the time of the seizure he stated to the officers: "Boys, you cannot keep that whisky; that is some I have had ever since before prohibition went into effect. It is some good stuff I bought and laid away. You ain't got nothing on me. *Page 34 That Sunny Brook I have had since the state went dry." Mrs. Breeding stated that she did not know the liquor was in the cellar or pit.
The unclaimed illicit whisky was found in the defendant's wash-boiler in defendant's shed on defendant's premises. The evidence is to the effect that several empty whisky flasks were scattered around defendant's premises. The cellar was frequented by defendant's tenants. His wife did not know of the presence of the liquor in the basement. His reason for its concealment from his wife was that she might have used it had she known of its presence.
We think that on the facts in this case the district court did not err in submitting the question of unlawful possession of the Sunny Brook liquor found in defendant's cellar to the jury, along with the liquor found in the shed on defendant's premises.
The defendant filed two affidavits in support of a motion for[5] a new trial, wherein one of the affiants declared that he had hauled two cases of Sunny Brook to defendant's home just prior to January 1, 1919, and the other asserted that he had seen the case of liquor in the basement and had spoken to defendant about it prior to his arrest. Forgetfulness is the only excuse assigned by the defendant for not producing this evidence at the trial. It also is cumulative only. Such reasons are not grounds for granting a new trial on suggested newly discovered evidence. (State v. Matkins, 45 Mont. 58, 121 P. 881.)
The judgment and order appealed from are therefore affirmed.
Affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES HOLLOWAY, STARK and MATTHEWS concur. *Page 35