Opinion
No. 21281. En Banc.
September 18, 1929.
INTOXICATING LIQUORS (29) — BOOTLEGGING AND TRANSPORTATION — EVIDENCE — PRESUMPTION. In a prosecution for bootlegging, the statutory presumption, from possession of intoxicating liquor, that it was for the purpose of unlawful sale or disposition, is not sufficient to supply the additional element, in bootlegging, of carrying it about with "intent to sell" (HOLCOMB and FULLERTON, JJ., dissenting).
Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered July 8, 1927, upon a trial and conviction of bootlegging. Affirmed.
Joseph H. Smith, for appellant.
C.T. Roscoe and Charles R. Denney, for respondent.
ON REHEARING.
Upon a rehearing En Banc a majority of the court adheres to the result reached in the former decision in State v. Bowen, 150 Wn. 136, 272 P. 48.
[1] The majority however conclude that that portion of the opinion reading:
"The law is well established in this state that, after the state has proven the carrying about of intoxicating liquor and the possession of the same, the presumption, supplied by the statute, that the possession is for the purpose of unlawful sale supplies the additional element of intent to sell [citing authorities],"
was not necessary to the result reached in the decision and is not in accord with the views of the majority. The authorities there, and later in the opinion cited, justify the result reached. The language above quoted is hereby eliminated from the decision.
As so modified, the opinion is, in other respects, sustained.
Although there is no particular objection to the withdrawal of the part of the opinion specified by the majority in the foregoing memorandum, as unnecessary to the result reached, it is obvious that the object is to harmonize the decision with the recent decision in State v. Hurlbert, 153 Wn. 60, 279 P. 123.
From that purpose, I must again dissent, for the reason stated by me and the further reasons given by Judge Fullerton in his dissent in the same case.
In the main, the opinion in this case in 150 Wn. 136, 272 P. 48, conforms to our statutes (Rem. Comp. Stat. §§ 7328 and 7329) and to our decisions as cited and others. The part withdrawn would not be a complete statement of the law as a charge to a jury, since it does not contain both elements of intent under the statutes involved in such prosecutions — possession with intent to unlawfully sell, or possession with intent to otherwise unlawfully dispose of such liquor; but no court would be deceived thereby, and would always instruct in conformity with the statutes.
The presumption statute (§ 7329, supra) is plain, definite and comprehensive. It needs no implementing, or interpretation. It seems that it is being unduly restricted in application; the application of the decisions in State v. Jewett, 120 Wn. 36, 207 P. 3, and similar cases in bootlegging prosecutions by constant derogation, is being gradually obliterated; and the effect of the language in State v. Hodges, 121 Wn. 362, 209 P. 843, improperly extended. The result is that our decisions are hopelessly irreconcilable.
How trial courts are to instruct juries in trials of bootlegging and included charges, so as to meet the approval of this court, is most perplexing.
FULLERTON, J., concurs with HOLCOMB, J.