¶1 Dissenting Opinion.
¶2 delivered a dissenting opinion.
¶3 We have here a wife and her two sons by another husband, fifteen and eighteen years of age, and two daughters, occupying the home in the little village of Lena. The wife is engaged in conducting a restaurant in the village. They occupy the home. The husband is a carpenter and house-building contractor, which takes him away from the home a good deal of the time. On the morning of the search and discovery of the liquor and wine, he had returned from a three weeks’ absence in another community, where he was engaged in building a house. During that three weeks he had not been in the home until the search was made. The State relied alone for conviction on whatever presumption went with the *648 fact that the liquor was found in appellant’s home. He denied any knowledge of its being there in a most reasonable statement. He was a total abstainer from the use of intoxicating liquor, and in addition had the reputation of being a law-abiding citizen. My opinion is that in such a case the .finding of the liquor in the home did not carry with it a prima facie presumption of possession on the part of the husband. If there was any inference of guilt to be indulged in, it was the wife’s guilt — not the husband’s.
¶4 Furthermore, if the facts do carry any inference of guilt on the part of the husband, such inference was completely, and without conflict in the evidence, overcome.
¶5 In my opinion, it follows that if it had been asked the appellant was entitled to a directed verdict of not guilty. Not having requested such an instruction, he was entitled to a new trial for the same reason.