delivered the opinion of the court.
Proceedings were instituted in the district court of Silver Bow county under the provisions of Chapter 143, Laws of 1917, by the filing of an affidavit alleging that one John Doe Nielsen, the occupant of room 421, Hotel Leggat, in the city of Butte, “did at, and does now, on and in said premises sell, exchange, give away, barter, furnish and otherwise dispose of intoxicating liquors in violation of the laws of the state of Montana and did then and there andi does now therein and thereon, keep, possess and deposit intoxicating liquors with intent to sell, exchange, give away, barter, furnish and otherwise dispose of said liquors in violation of the laws of this state,” etc. Upon this affidavit a search-warrant was issued by one of the judges of said court to which return was made reciting that certain intoxicating liquors were found in said premises, consisting of twenty-four packages, each said to contain twenty-four pint bottles of whisky, in the possession of one George Nielsen. Thereafter Edith Nielsen, wife of said George Nielsen, made claim for said liquors, alleging that she was the sole owner thereof and that the same had been acquired by purchase prior to the thirty-first day of December, 1918, and that none thereof was used or intended to be used contrary to the provisions of oúr statute with relation to intoxicating liquors. After trial, judgment was entered ordering the liquors destroyed. From the' judgment and order denying a new trial, appeal was taken.
Upon- the trial, in behalf of the state, the search-warrant and the-return thereto were admitted in evidence, and Ed Morrissey, a detective for the city of Butte, testified that he searched the premises in question, finding the whisky therein, and that on the night of the seizure Mr. Nielsen illegally sold liquors other than those seized. Testimony was offered in behalf of
The liquor when seized was in a closet in the room occupied by the Nielsens, in the Leggat Hotel, was sewed in gunny-sacks, each sack containing twenty-four pint bottles, and defendants testified that no one had the key to such closet except the Nielsens, and both husband and wife denied that any sale of this whisky had been made. It further appears that on the night of the seizure George Nielsen was apprehended making an illegal sale of twenty-four pints of whisky, though the whisky sold was of a different brand than that seized under the search-warrant. Nielsen testified that one Wise delivered to him in a gunny-sack similar to those in the closet the whisky which he sold; that after its delivery to him by Wise he took it to his room in the Leggat Hotel and there placed it in a suitcase, afterward taking it from the room and making delivery to one Heimie, the purchaser thereof, in the alley back of the hotel; that he had never sold any other whisky, and that in handling the sale in question he was merely acting for the accommodation of Wise. In rebuttal, the state, in addition to proving the sale to Heimie, offered testimony to the effect that when the officers arrived at the hotel and asked Nielsen the number of his room, Nielsen told them that the room was numbered two hundred and something instead of giving the correct number. There is, however, some conflict on this question, one of the officers testifying that Nielsen did give the correct number - also that, with Mrs. Nielsen present, Nielsen said: “You are not going to take my whisky.” At the time of seizure the sack, in which had been contained the whisky sold to Heimie, was
Appellant contends that by the introduction of evidence in her behalf as above stated she overcame the prima facie case and established conclusively her lawful ownership of the whisky, and her lack of knowledge of or participation in sales made by her husband.
The statute in question provides for proceedings m rem, in
Prima facie evidence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. (See. 7854, Rev. Codes.)
Counsel assumes that because Mrs. Nielsen testified positively
As said in Lewis v. Lewis, 76 Conn. 586, 593, 57 Atl. 735: “This involves the mistaken assumption that the direct evidence of a witness or witnesses, if not distinctly contradicted, consti
Testimony constituting a mere contradiction of the facts established presumptively by the prima facie case does not necessarily suffice to overthrow the same. It will be noted that section 7854 is in the conjunctive and provides that the prima facie case must not only be contradicted but overcome as well. When such ease is made, contradictory testimony merely amounts to a conflict in the evidence, with the ultimate facts to be determined by the court or jury, as the case may be. (See Rev. Codes 1907, 8028 (2), 7861; State v. Johnson, 157 Iowa, 248, 138 N. W. 458; Johnson v. Chicago etc. Ry. Co., 52 Mont. 73, 155 Pac. 971; Freeman v. Chicago etc. Ry. Co., 52 Mont. 1, 154 Pac. 912; Emerson v. Butte E. Ry. Co., 46 Mont. 454, 129 Pac. 319.)
The court, applying established rules of evidence, was not bound to believe the testimony of the claimant or her witnesses, but was at liberty to disregard it altogether if it did not consider it as credible, and in addition may have given force to the circumstances surrounding the transaction.
Certainly the purchase of liquor costing $980 by one shown
The appeal from the order denying the motion for new trial is dismissed. (State v. Kelly, supra.)
The judgment appealed from is affirmed.
Affirmed.