Tolman, J.
Roy Gr. Hurlbert and Alice Hurlbert, husband and wife, were jointly informed against by the prosecuting attorney of Okanogan county for the crime of bootlegging. They were convicted by the verdict of a jury, adjudged guilty by the court, and severally sentenced to a term of imprisonment. Both appeal.
The information charged the husband with a former conviction of a violation of the prohibition statutes. Based on this fact, the appellant wife, when the cause was called for the purpose of fixing the time of trial, moved for a separate trial. The motion was denied, and the action of the court in that respect constitutes the first of the errors assigned on the appeal. But whether or not the defendants may have separate trials is rested by the statute in the discretion of the trial judge. Bern. Comp. Stat., § 2161. Possibly, like many other discretionary orders, the ruling of the trial judge on the question is subject to review for manifest abuse, but this court has heretofore indicated that some very substantial reason must exist for so doing before the right will be exercised.
State v. Ditmar,
132 Wash. 501, 232 Pac. 321;
State v. Andrich,
135 Wash. 609, 238 Pac. 638. In this instance, we find nothing in the record which warrants the conclusion that there was here an abuse of discretion. The trial judge, when the evidence of the former conviction of the husband was introduced, distinctly stated to the jury that it was not evidence of the guilt of either of the defendants of the crime for which they were on trial, and in the final instruction to the jury charged them to the same effect. Unless, therefore, we are to hold that there must be separate trials in every instance where two or more persons are charged with a violation of the liquor laws of the state, and one of them only is charged with having been convicted of a prior violation of the same laws, we cannot so hold in this instance. This we decline to do, especially so since the statute itself makes it the imperative duty of the prosecuting attorney, where he has knowledge of prior convictions of the person accused of violations of the act, to allege such prior conviction in the information.
It is next urged that the state failed in its
proofs of vénue. It is true that uo witness testified directly that the offense was committed in the county in which the venue was laid, but there was abundant evidence otherwise before the jury'to show the situs of the crime. It is not essential, in order to prove venue; that some witness testify directly that the offense was committed in a designated county. It is enough if it appears at the trial indirectly that the venue is properly laid. Here the evidence leaves no doubt as to the fact, and the proofs were sufficient under our repeated holdings.
State v. Fetterly,
33 Wash. 599, 74 Pac. 810;
State v. Gilluly,
50 Wash. 1, 96 Pac. 512;
State v. Kincaid,
69 Wash. 273, 124 Pac. 684;
State v. Chin Sam,
76 Wash. 612, 136 Pac. 1146;
State v. Libby,
89 Wash. 27, 153 Pac. 1058, 155 Pac. 746;
State v. Wynn,
125 Wash. 398, 216 Pac. 872;
State v. Neadeau,
137 Wash. 297, 242 Pac. 36;
State v. Heppell,
148 Wash. 664, 269 Pac. 1046.
The appellants question the sufficiency of the evidence to sustain the verdict — the specific objection being that there was no evidence from which the jury could find that the appellants carried intoxicating liquor about with them for the° purpose of unlawful sale. As to the principal facts of the case, there is no substantial dispute. The appellants lived on a farm some few miles distant from the town of Tonasket, in Okanogan county. On the morning of February 12, 1928, they started to go to the town named, traveling in an automobile. On the road to the town, they picked up, from its place of concealment, a two-gallon jug, containing moonshine whiskey. The jug was in a gunny sack, and was held by the wife on her lap, while she sat in the front seat by the side of her husband, who drove the automobile. The sheriff of the county of Okanogan, with a deputy, left the town of Tonasket on the same morning, going in search of - a missing
automobile. As he reached a fork in the road some short distance from the town, he stopped his car for the purpose of ascertaining, if he could, which one of the forks the automobile for which he was searching had been driven. Soon after he stopped, he saw the appellants approaching, and waited for them, intending to inquire of them whether they had met or had seen the automobile for which he was searching. He did not then know who the appellants were, and had no thought that they were other than travelers on the highway upon a lawful errand. As the appellants reached him, he signaled for them to stop. The driver of the automobile heeded the signal. The wife thereupon took a hammer and struck the jug two or more blows, breaking it, and causing the greater part of the liquid it contained to spill through the floor of the automobile to the ground. Her actions aroused the suspicion of the sheriff, and he left his own automobile and went over to the appellants, where he discovered the odor of intoxicating liquor. He then put the appellants under arrest, took them to Tonasket where they were charged with the offense of which they were afterwards convicted.
There was no other evidence on the part of the state tending to show the purpose for which the appellants were carrying about the liquor. The appellants themselves offered an explanation, but this it is unnecessary to detail. It is enough to say that, had the jury believed it, it was sufficient to acquit them of the major offense charged in the information.
The vital question here is whether the evidence on the part of the state, which we have detailed, was sufficient to take to the jury the question of the guilt of the appellants upon the major charge of the information.
In deciding a similar question the court, sitting
En Banc,
after reviewing the facts and the law said:
“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.
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Tolman, J.
Roy Gr. Hurlbert and Alice Hurlbert, husband and wife, were jointly informed against by the prosecuting attorney of Okanogan county for the crime of bootlegging. They were convicted by the verdict of a jury, adjudged guilty by the court, and severally sentenced to a term of imprisonment. Both appeal.
The information charged the husband with a former conviction of a violation of the prohibition statutes. Based on this fact, the appellant wife, when the cause was called for the purpose of fixing the time of trial, moved for a separate trial. The motion was denied, and the action of the court in that respect constitutes the first of the errors assigned on the appeal. But whether or not the defendants may have separate trials is rested by the statute in the discretion of the trial judge. Bern. Comp. Stat., § 2161. Possibly, like many other discretionary orders, the ruling of the trial judge on the question is subject to review for manifest abuse, but this court has heretofore indicated that some very substantial reason must exist for so doing before the right will be exercised.
State v. Ditmar,
132 Wash. 501, 232 Pac. 321;
State v. Andrich,
135 Wash. 609, 238 Pac. 638. In this instance, we find nothing in the record which warrants the conclusion that there was here an abuse of discretion. The trial judge, when the evidence of the former conviction of the husband was introduced, distinctly stated to the jury that it was not evidence of the guilt of either of the defendants of the crime for which they were on trial, and in the final instruction to the jury charged them to the same effect. Unless, therefore, we are to hold that there must be separate trials in every instance where two or more persons are charged with a violation of the liquor laws of the state, and one of them only is charged with having been convicted of a prior violation of the same laws, we cannot so hold in this instance. This we decline to do, especially so since the statute itself makes it the imperative duty of the prosecuting attorney, where he has knowledge of prior convictions of the person accused of violations of the act, to allege such prior conviction in the information.
It is next urged that the state failed in its
proofs of vénue. It is true that uo witness testified directly that the offense was committed in the county in which the venue was laid, but there was abundant evidence otherwise before the jury'to show the situs of the crime. It is not essential, in order to prove venue; that some witness testify directly that the offense was committed in a designated county. It is enough if it appears at the trial indirectly that the venue is properly laid. Here the evidence leaves no doubt as to the fact, and the proofs were sufficient under our repeated holdings.
State v. Fetterly,
33 Wash. 599, 74 Pac. 810;
State v. Gilluly,
50 Wash. 1, 96 Pac. 512;
State v. Kincaid,
69 Wash. 273, 124 Pac. 684;
State v. Chin Sam,
76 Wash. 612, 136 Pac. 1146;
State v. Libby,
89 Wash. 27, 153 Pac. 1058, 155 Pac. 746;
State v. Wynn,
125 Wash. 398, 216 Pac. 872;
State v. Neadeau,
137 Wash. 297, 242 Pac. 36;
State v. Heppell,
148 Wash. 664, 269 Pac. 1046.
The appellants question the sufficiency of the evidence to sustain the verdict — the specific objection being that there was no evidence from which the jury could find that the appellants carried intoxicating liquor about with them for the° purpose of unlawful sale. As to the principal facts of the case, there is no substantial dispute. The appellants lived on a farm some few miles distant from the town of Tonasket, in Okanogan county. On the morning of February 12, 1928, they started to go to the town named, traveling in an automobile. On the road to the town, they picked up, from its place of concealment, a two-gallon jug, containing moonshine whiskey. The jug was in a gunny sack, and was held by the wife on her lap, while she sat in the front seat by the side of her husband, who drove the automobile. The sheriff of the county of Okanogan, with a deputy, left the town of Tonasket on the same morning, going in search of - a missing
automobile. As he reached a fork in the road some short distance from the town, he stopped his car for the purpose of ascertaining, if he could, which one of the forks the automobile for which he was searching had been driven. Soon after he stopped, he saw the appellants approaching, and waited for them, intending to inquire of them whether they had met or had seen the automobile for which he was searching. He did not then know who the appellants were, and had no thought that they were other than travelers on the highway upon a lawful errand. As the appellants reached him, he signaled for them to stop. The driver of the automobile heeded the signal. The wife thereupon took a hammer and struck the jug two or more blows, breaking it, and causing the greater part of the liquid it contained to spill through the floor of the automobile to the ground. Her actions aroused the suspicion of the sheriff, and he left his own automobile and went over to the appellants, where he discovered the odor of intoxicating liquor. He then put the appellants under arrest, took them to Tonasket where they were charged with the offense of which they were afterwards convicted.
There was no other evidence on the part of the state tending to show the purpose for which the appellants were carrying about the liquor. The appellants themselves offered an explanation, but this it is unnecessary to detail. It is enough to say that, had the jury believed it, it was sufficient to acquit them of the major offense charged in the information.
The vital question here is whether the evidence on the part of the state, which we have detailed, was sufficient to take to the jury the question of the guilt of the appellants upon the major charge of the information.
In deciding a similar question the court, sitting
En Banc,
after reviewing the facts and the law said:
“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.”
State v. Hodges,
121 Wash. 362, 209 Pac. 843.
A pronouncement which needs no interpretation and from which we have never consciously departed.
The state, however, seems to urge that the
Hodges
case has been overruled by our subsequent decisions, and, to sustain this contention, it cites
State v. Gleen,
135 Wash. 153, 237 Pac. 292;
State v. Presta,
142 Wash. 539, 253 Pac. 811;
State v. Peck,
146 Wash. 101, 261 Pac. 779, and
State v. Rondeau,
148 Wash. 402, 269 Pac. 3.
In the
Gleen
case,
supra,
the accused was found in the possession of more than one hundred pints of Canadian beer. Clearly, the quantity alone was suf
ficient to support an inference that there was an intent to sell.
In the
Presta
case,
supra,
the accused was not only in possession of a gallon of moonshine, which he was then dispensing to others, but more moonshine was immediately found in his automobile, and there was ample evidence from which the jury might have found that he was, or had been, conducting a still from which he derived large quantities of moonshine whiskey for the purpose of sale.
In the
Peck
case,
supra,
the accused was found in possession of fifty-seven sacks of beer, each containing two dozen bottles, and fifty-two sacks, each containing one dozen bottles of assorted liquors. These facts, with other circumstances, raised a question for the jury.
In the
Rondeau
case,
supra,
there was not only evidence from which the possession of large quantities of liquor could be inferred, but there was evidence also of actual soliciting of sales.
When the facts are considered, it is quite evident that in each case there was evidence to carry the issue of intent to sell to the jury, and that the statutory presumption was not warped from its plain terms and “wholly appropriated” to selling as distinguished from other unlawful disposition.
Other cases referred to are
State v. Christensen,
122 Wash. 236, 210 Pac. 376, where the
Hodges
case was cited and followed, and
State v. Duncan,
124 Wash. 372, 214 Pac. 838, where it was properly held that the evidence was sufficient to go to the jury on the question of intent to sell. If there are any other cases subsequent in time to the
Hodges
case which have not been called to our attention, we venture the assertion that they will be found likewise readily reconcilable.
As we see no evidence here on the part of the state, other than the possession of some moonshine whiskey in a two gallon jug, no attempt being made to fix the amount, we conclude that the major charge should not have been submitted to the jury and that its verdict should have been, on appellant’s motion, set aside.
Reversed.
Maxh, Beals, French, and Parker, JJ., concur.