"If such a building is established for this purpose [keeping and selling intoxicating liquors] and the purpose is not carried into effect, that is no violation of Section 1564 [Section 1930, Code, 1927], upon which the indictment is framed." To the same effect is the holding in State v. Tierney, 74 Iowa 237. See, also, State v. Worden, 27 R.I. 484 ( 63 A. 486); Proctor v. State, 15 Okla. Cr. 338 ( 176 P. 771); Reed v. State, 17 Okla. Cr. 714 ( 189 P. 1102); 1 Wharton's Criminal Law (11th Ed.) 197. At this point it is material to inquire what course of procedure the defendant followed in the instant case.

We do not accede to that proposition. It seems clear to us that when the statute says he "shall be deemed to have died a resident" it is declaring a conclusive presumption, because: (1) If it had intended a mere prima facie one it would have said so; (2) if "deemed" means "presumed prima facie," it would be an idle proposition because it would merely put the burden of proof of nonresidence of the deceased upon the heirs, which is expressly provided later in the same section; and (3) both derivation and weight of authority are with defendant in error on this point. Com. v. Pratt, 132 Mass. 246, 247; Powell v. Spackman, 7 Idaho, 692, 698, 65 Pac. 503; Re Rogers and McFarland, 19 Ont. L. 622, 639, citing many cases; Lawrence v. Willcocks, 1 Q. B. (1892) 696, 699; Regina v. Manning, 3 C. K. 887; Leonard v. Grant, 5 Fed. 11; Thompson v. Cragg, 24 Tex. 582, 599; State v. Worden, 27 R.I. 484, 63 Atl. 486; Ex Parte Smith, 33 Nev. 466, 111 Pac. 930; Cory v. Spencer, 67 Kan. 648, 653, 73 Pac. 920; Checotah v. Eufaula, 31 Okla. 85, 94, 119 Pac. 1014; Blaufus v. People, 69 N. Y. 107, 111, 25 Am. Rep. 148; Nelson v. Jones, 245 Mo. 579, 598, 151 S.W. 80; Cardinel v. Smith, 5 Fed. Cas. Page 45, No. 2395; Dilworth v. Schuylkill, 219 Pa. St. 527, 529, 69 Atl. 47. There are a few cases which hold that "deemed" means "presumed prima facie," e. g. Rex v. Fraser, 45 N. S. 218, 219, but the conditions there were peculiar. The New York Surrogate Court, In re Frick's Estate, 116 Misc. Rep. 488, 190 N. Y. Supp. 262-264 and In re Barbour, supra, are cited, but as shown above, do not control us. It follows that the district court was right when it adjudged that Mr. Waldron died a resident of Colorado, but even if this were not so the property in question is subject to the tax.