State v. Rondeau , 148 Wash. 402 ( 1928 )

Appellant, convicted of the crime of bootlegging, has appealed. He urges that the evidence was insufficient to sustain a conviction. The facts follow: About midnight on April 2, 1927, the sheriff of Okanogan county was investigating conditions at a dance being held at Malott in that county. He overheard the appellant say to another, "Are you the man that wanted the bottle?" The other asked appellant if he had the bottle with him, whereupon appellant replied, "No, but I can get it right away." The sheriff immediately placed appellant under arrest and asked him where his car was. Appellant professed not to know where the car was parked, but after the sheriff notified him that they would wait until all the other cars had gone, appellant decided to take him to the car which was parked away from the other cars and down by the river. During the walk to the car, appellant remonstrated with the sheriff for "picking on him," since there "were lots of others" there that were violating the law.

As they neared the car, appellant began talking in a loud voice, using the sheriff's name ostensibly so that another might be warned. There was a commotion at the car, the door opened and by the time they reached it a half-brother of appellant, crippled and unable to move fast, was found near the front of the car. In the car were found empty bottles, a fruit jar which smelled of moonshine whiskey and a gunny sack. Moonshine whiskey was spilled over the bottom of the car and on the running board. About one step from the front of the car, where the half-brother was standing, the sheriff located two bottles of moonshine whiskey in the sage brush. Appellant also had a number of corks in his pockets, together with about thirty-five dollars in money, which included twenty-six or twenty-seven silver dollars. Much of this evidence was disputed and some explained, but the facts just detailed were the ones which the jury had a right to find from the evidence, and they were amply sufficient to warrant the verdict which was returned by the jury.

[1] Appellant urges that the evidence did not show any "carrying about" sufficient to establish the crime of bootlegging. This question has been often before the court and we have repeatedly held that to "carry about," within the meaning of the statute directed against bootlegging, does not mean an actual physical possession. State v. Gumm, 141 Wash. 355,251 P. 273; State v. Peck, 146 Wash. 101, 261 P. 779.

The jury were entitled to believe from the evidence in this case that the appellant had constructive possession of the liquor and that he was engaged in selling when and as opportunity offered. State v. Meyers, 121 Wash. 579,210 P. 4; State v. Gleen, 135 Wash. 153, 237 P. 292.

[2] Some complaint is made that the presumption of intent to sell provided for in the statute does not apply in a bootlegging case. While here there was evidence of intent to sell, we have already held that the presumption applies in cases of this character. State v. Peck, supra; State v. Gleen, supra. [3] It is also assigned as error that the court erred in failing to instruct the jury that they might find appellant guilty of simple possession of liquor. The court did instruct that they might find appellant guilty of the crime of bootlegging or the included offense of possession with intent to sell. Assuming that such an instruction would have been proper, the failure to so instruct was not reversible error, for appellant requested no such instruction. State v. Parsons, 44 Wash. 299,87 P. 349; State v. Curtis, 127 Wash. 273, 220 P. 769.

Judgment affirmed.

FULLERTON, C.J., MAIN, BEALS, and HOLCOMB, JJ., concur.