State v. Bowen , 154 Wash. 23 ( 1929 )

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 Wash. 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 Wash. 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 The part withdrawn would not be a complete statement of the law as a charge to a jury, since it does not contain both elements of intent under the statutes involved in such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 Wash. 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 Wash. 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.