129 Wash. 159 | Wash. | 1924
The defendants, Harry and Jennie Greenwald, were charged with, and upon trial in the superior court for King county, sitting with a jury, were found guilty of, being jointists, in that they conducted a place in that county for the unlawful sale of intoxicating liquor. Judgments being accordingly rendered against them, both have appealed to this court, bringing here in the clerk’s transcript the instructions to the jury given by the court, but no state
The principal contention here made in behalf of appellants is that the trial court erred to their prejudice in denying their motion for new trial, because of error in the court instructing the jury as follows:
“You are instructed that under the laws of this state, whenever it is proven that any person other than a regularly ordained clergyman, priest, or rabbi actually engaged in ministering to a religious congregation, has in his possession any intoxicating liquor other than alcohol, such possession of said intoxicating liquor shall be prima facie evidence that said liquor was so held and kept for the purpose of wnlcmful sale, and such possession raises the presumption that the person so possessing the liquor had it for the purpose of unlawful sale or disposition.”
We italicize the words to be particularly noticed. This was followed by two additional instructions touching the statutory rule attempted to be stated, wherein the trial judge repeated in the same connection the words “unlawful sale,” without any connection with the words “or disposition.” These instructions, read together, seem plainly to be an erroneous and a confusing exposition of the statutory rule of prima facie evidence attempted to be stated, which is that such possession “shall be prima facie evidence that said liquor was so held and kept for the purposes of unlawful sale or disposition” (§ 7329, Rem. Comp. Stat.) [P. C. § 3185]; since the court three times erroneously told the jury that the presumption is that such possession of liquor is for “unlawful sale,” and once correctly told the jury that the presumption is that such possession of liquor is for “unlawful sale or disposition.” State v. Brown, 121 Wash. 371, 209 Pac. 855; State v. Bossio, 128 Wash. 156, 222 Pac. 467.
Observations made in some of the last above cited' decisions may seem to go so far as to hold that, under no circumstances, will instructions be considered upon appeal, with a view of determining whether or not they are prejudicially erroneous, in the absence of a statement of facts or bill of exceptions. We are now inclined to think, however, that there will be found necessary exceptions to the general rule. However, the present case, we think, does not present any such exception to that general rule. It seems, in any event, safe to say that a judgment should not be reversed by an appellate court because of the giving of an instruction or the refusing to give a requested instruction by a trial court, unless such ruling of the trial court would be prejudicially erroneous under every conceivable state of the evidence or of what occurred at the trial, in the absence of a statement of facts or bill
The judgments are affirmed.
Main, O. J., Bridges, Holcomb, Tolman, Fullerton, and Mitchell, JJ., concur.
Pemberton, J., concurs in the result.