242 P. 343 | Mont. | 1925
The defendant was charged, by information filed in the district court of Beaverhead county, with the crime of unlawfully *79 possessing whisky. Upon her plea of not guilty the case was regularly tried to a jury, which by its verdict found her guilty as charged, leaving the punishment to be fixed by the court. The court sentenced her to a term of imprisonment of four months in the county jail and to pay a fine of $500. Judgment was accordingly entered. The appeal is from the judgment.
It appears that on the morning of May 9, 1925, for the purpose of discovering evidence of violation of the liquor laws, A.F. Mooney, sheriff of Beaverhead county, accompanied by Frank Kellum, under-sheriff, Charles Nelson, chief of police of the city of Dillon, and Harry Hackett, a police officer, visited a rooming-house in the city of Dillon conducted by the defendant. They were armed with a search-warrant, and pursuant thereto proceeded to search the premises, as a result of which they found in a closet a pitcher containing moonshine whisky, six glasses and a tray. The defendant then and there acknowledged ownership of the whisky, and likewise later at the sheriff's office. In a hallway leading to the toilet there was a strong odor of moonshine, and there was a quantity of the same substance on the toilet floor; this being determined from the odor and by applying a match thereto. When lighted, it burned up with a blue flame, indicating that the substance was alcohol. In the toilet there were several empty jugs, two of which were gallon jugs, which latter were filled with water, and were wet on the outside. Upon uncorking them there was present a distinct odor of moonshine, which, at the time of the trial, upon introduction of these two jugs in evidence, witnesses said was still present. The defendant, upon being brought before a justice of the peace, "pleaded guilty." The information was filed five days subsequent to her arrest. There is no dispute as to the defendant's possession of the liquor, and it stands uncontradicted that it was moonshine whisky. *80
The specifications of error relate: (1) To alleged irregularities in the proceedings; and (2) to the exclusion of certain evidence by the court.
1. As to the first group of errors assigned, they were similarly urged in the case of State v. Sorenson, ante, p. 30,
2. The defendant offered to prove by the testimony of Dr. Dan[1] J. Donohue that the health of Joe Charette, husband of the accused, was such, on account of heart trouble, that it was advisable at all times to have whisky on hand as a heart stimulant, and that the witness had so advised, which evidence was excluded. Further, the defendant was by the court denied the right to show that she had obtained the whisky through a messenger when her husband was suffering from an attack of heart trouble, for him and for no other purpose.
The offered testimony was properly excluded. The statute makes the possession of intoxicating liquor by any person not legally entitled thereto prima facie evidence that it is kept for the purpose of being sold or disposed of in violation of the law; the burden of proof being placed on the possessor thereof to show that it was lawfully acquired and is lawfully possessed and used. (Sec. 11079, Rev. Codes 1921.) The burden of proof being thus shifted to the defendant (State v. Lewis,
The judgment is affirmed.
Affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES HOLLOWAY, STARK and MATTHEWS concur.
