No. 17057 | Wash. | Oct 2, 1922
Lead Opinion
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
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
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
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" court="Wash." date_filed="1920-08-03" href="https://app.midpage.ai/document/state-v-hessel-4720118?utm_source=webapp" opinion_id="4720118">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 pos
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
Parker, C. J., Tolman, Holcomb, and Hovey, JJ., concur.
Dissenting Opinion
(dissenting) — I dissent. There are three elements in the statutory crime of bootlegging; possession, carrying about, and intent to sell. It is my position that, where one is charged with this offense, the state must affirmatively prove the possession and the carrying about, and that proof having been made, the statute furnishes prima facie evidence of the third element, to wit, the intent to sell. This statutory prima facie case may, of course, be overcome by affirmative proof. It seems to me that the court’s opinion falls into a fundamental error in giving the so-called presumption statute the same, or substantially the same, meaning it had under initiative measure number three. Under that statute (Laws of 1915, ch. 2, p. 2), it was a misdemeanor to “sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor,- . . .,” or to have any in possession in excess of a designated amount; possession within that amount be-, ing lawful. Under that act, proof of possession of. more than the lawful amount was made prima facie evidence of intent to unlawfully sell or dispose of it. Laws of 1915, ch. 2, § 23, p. 15. The 1917 act added the three important crimes of having possession of any amount of liquor, bootlegging and operating a joint, and amended the former presumption statute by eliminating from it the idea that it was lawful to have in possession any amount of liquor. Without doubt, the old statute applied to sales, barters, exchanges, giving' away, or other disposition. Such a construction would give it the force which the legislature intended it should
As the law now stands, it is unlawful to have in possession any amount of intoxicating liquor, or to barter, exchange or give away any such liquor, and such offenses are misdemeanors, all punishable alike. To say, as the court’s opinion does, that the present presumption statute can apply only to these acts is to accuse the legislature of deliberately enacting an apparently important section of the statute, which, from a practical standpoint, is useless and without effect. To say that proof of possession of intoxicating liquor, which in itself is a misdemeanor, is prima facie evidence of intent to give away, barter, exchange or otherwise dispose of such liquor, which in themselves are, under the statute, misdemeanors, would be to give a presumption where none is needed. I think the court’s opinion does not expressly say that the statute applies only to these misdemeanors, but that is the effect. It says that, in a case of this character, the state must affirmatively prove the intent to sell. If so, then the proof more than covers the statutory presumption and makes it a dead letter. In my opinion, it was because the legislature knew how difficult it would be for the state to affirmatively prove the intent to sell that it enacted that proof of possession should be “prima facie evidence that said liquor was so held and kept for the purpose of unlawful sale.or disposition.” By this provision it intended to place on the defendant the burden of proving what he intended doing with the liquor
But it is said that since the proof of possession under the present statute is prima, facie evidence that the liquor is kept for “unlawful sale or disposition,” if there is no affirmative proof, the jury is left to guess and speculate whether the liquor is held and kept for “sale” or “disposition.” This argument is probably sound if the words “sale” and “disposition” have different meanings — if they do not mean the same thing — 1 if “disposition” means to barter, give away and the like, because without affirmative proof there would be notMng before the jury by which it could determine whether the intent was to sell or otherwise dispose of the liquor. To hold that these words, as used in the statute, have different meanings would be to require the state to show affirmatively that the intent of the person possessing and carrying about was either to sell or make other disposition of the liquor; but if the state must make this proof, then it is deprived of any beneficial use of the presumption statute. In order to give vitality to this section, it is necessary to hold that the words “sale” and “disposition” mean the same tMng — to wit, sale. To apply it to the misdemeanors only, would be to strangle it; to apply it to the crime of bootlegging would be to give it force.
I think the judgment should be affirmed.
Concurrence Opinion
(concurring) — I concur in the opinion expressed by Judge Bridges.
Fullerton and Main, JJ., concur with Bridges, J.