
    [No. 20093.
    Department Two.
    December 21, 1926.]
    The State of Washington, Respondent, v. Mike Scamnzi et al., Appellants. 
      
    
    
       Intoxicating Liquors (28, 50)—Manufacture—Evidence—Suf-ficiency. In a prosecution for the unlawful manufacture of intoxicating liquor, it is prejudicial error for the court to comment upon the evidence of the defendants that they did not own the premises or the still found thereon, by stating that the ownership was not involved in the case and is “wholly immaterial.”
    Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered February 2, 1926, upon a trial and conviction of the unlawful manufacture of intoxicating liquor.
    Reversed.
    
      John F. Dore and O. T. Webb, for appellants.
    
      C. T. Roscoe, John C. Richards and Charles R. Denney, for respondent.
    
      
       Reported in 251 Pac. 567.
    
   Mackintosh, J.

Chapter 30 of the Laws of 1923, p. 73 [Rem. Comp. Stat., §7347-1], makes it a crime for one to have in his possession a still used for the manufacture of intoxicating liquors, and the two appellants were charged with, and convicted of, this crime, and have appealed.

The evidence shows that neither of the appellants owned the premises upon which the still was located, and there was no evidence upon the question of the ownership of the still, except that of the appellants themselves, who testified that they did not own it. Their possession of the still was attempted to be shown by the fact that the arresting officers found the still in operation and the appellants standing by it. Added to this, was the testimony of the officers that the appellant Cusimano had admitted to them that he had been engaged to run the still.

The court instructed the jury “that ownership of a still is not involved' in this case and it is wholly immaterial whether or not the defendants, or either of them, owned the still, if there was one.” This instruction is objected to for the reason that it constituted a comment upon the evidence introduced by the appellants and instructed the' jury that that evidence was wholly immaterial. While under the statute possession alone is sufficient to constitute the crime, yet, in a case such as this, where the evidence of possession is largely a matter of inference, the evidence of lack of ownership is an element which the jury had the right to take into consideration in determining whether the appellants had possession, for evidence of lack of ownership was admissible as tending to establish lack of possession; a jury being warranted in giving weight to the suggestion that possession is usually the result of ownership, thus substantiating, the appellants’ explanation of their presence at the place and time. The court should have gone no further than to state that, in order to convict one under this statute, it is not necessary for the state to prove ownership; but. it was improper to comment upon the proof of non-ownership and tell the jury that this evidence was wholly immaterial. On account of this error the judgment must be reversed.

The appellant Scamnzi argues .that there was no evidence upon which he could be convicted, but no appropriate motions having been made to relieve him of the verdict in the lower court, it is unnecessary here to indulge in any examination of the sufficiency of the evidence against him.

Both of the appellants are entitled to have the judgment set aside and a new trial granted to them. Reversed.

Tolman, C. J., Parker, Askren, and Bridges, JJ., concur.  