Summary
In Garland v. State (Miss. 1933) 146 So. 637 (Garland), the Supreme Court of Mississippi reversed a woman's conviction for possession of an intoxicating liquor based on her smashing her husband's jug of whiskey as police raided their home.
Summary of this case from People v. PostonOpinion
No. 30300.
March 13, 1933.
1. INTOXICATING LIQUOR.
Wife throwing out and breaking jug of whisky brought by another for her husband held entitled to presumption possession was that of husband.
2. INTOXICATING LIQUOR.
Presumption obtains that liquor in joint possession of husband and wife is under husband's control.
3. INTOXICATING LIQUOR.
Wife's taking of jug of whisky brought in by another for her husband, and throwing it out and breaking jug held not unlawful "possession" within statute (Code 1930, section 1974).
APPEAL from circuit court of Hinds county. HON.W.H. POTTER, J.
C.O. Jaap, of Jackson, for appellant.
The court erred in overruling the motion of the appellant to exclude the testimony of the state and direct a verdict of not guilty.
Prima-facie presumption is that liquor in the joint possession of husband and wife was under control of the husband, though such presumption is rebuttable, husband in legal contemplation being responsible party in control of his premises.
Wylie v. State, 119 So. 825; Wampler et al. v. Corporation of Norton, 134 Va. 606.
If possession was merely for the purpose of breaking, it was transitory possession and no more substantial than that of those persons who had a glass of liquor in their hands for the purpose of taking a drink.
Anderson v. State, 132 Miss. 147; Brazeale v. State, 133 Miss. 171; Harness v. State, 130 Miss. 673.
Instructions should have regard to the case made by the evidence and explain the law clearly with reference to it; it will be error therefore, if the court in charging the law, in reference to a case supposed in an instruction exclude from the consideration of the jury a material question presented by the evidence.
Oliver v. State, 39 Miss. 526; W.B. Littlejohn v. State, 59 Miss. 273.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
As to the fact of the whisky being in the house and the method of its disposal, or rather destruction, there is no conflict. The witnesses for the state and for the defendant are agreed upon that. Such being the case, it is the contention of the state that it is not subject to the rule laid down in Wylie v. State, for as I see it, the presumption, above referred to, does not have to be indulged in so far as this case is concerned. The facts show possession, control and the right of disposal of the whisky.
In the case at bar, even if it should have been admitted that the liquor in fact was her husband's liquor, it would still make no difference so far as her possession was concerned for when appellant undertook to take the liquor out of the house and destroy it on the back steps her possession of it became more than mere fleeting or transitory possession and under these facts should be controlled by the case of Goodman v. State, 130 So. 825.
Anderson v. State, 132 Miss. 147, 96 So. 163; Holly v. State, 144 Miss. 726, 111 So. 139; Adair v. State, 148 Miss. 240, 114 So. 345; Jones v. State, 152 Miss. 216, 119 So. 174.
The instruction complained of gave to the jury the right to say whether or not appellant's possession of the whisky was merely transitory. It was proper to refuse this instruction for the reason that there was no evidence to warrant it and it is a familiar rule that instructions must be warranted by and conformed to the evidence in the case.
Adams v. State, 124 So. 440; Weeks v. State, 140 So. 696; Smith v. State, 137 So. 96.
Appellant was convicted of the crime of unlawfully possessing intoxicating liquor and fined in the sum of one hundred dollars. From that judgment she prosecutes this appeal.
Two deputy sheriffs of Hinds county and a police officer of the city of Jackson, with a proper search warrant, entered the home occupied by appellant and her husband. They testified that on their arrival they found appellant breaking a jug containing whisky.
Appellant as a witness in her own behalf admitted the truth of the testimony of the officers. Her defense was that she did not unlawfully possess the whisky; that it belonged to her husband; that he possessed it. She testified that she and her husband, Odell Garland, were man and wife and the owners of the home searched; that she objected to her husband having whisky in the home, but he kept it notwithstanding her protests; that a few minutes before the search was made by the officers a negro boy brought a jug of whisky to her home and stated that it was for her husband; that she insisted that the boy take the whisky away, but instead of doing so he set the jug down on the floor and ran off; and that when the officers came to make the search she seized the jug, ran to the back door, and threw it out on the steps and broke it.
Dorsey, a witness for appellant, corroborated her testimony. He testified that he was present when the search was made; that he was in the Garland home to see appellant's husband in reference to doing some work on the home; that while he was awaiting the return of appellant's husband from work, a negro boy entered with a package; that appellant met him at the door and asked him what he had, to which he replied, "Some whisky for Odell Garland:" that appellant then demanded that he take the whisky away, which the boy declined to do; that later the officers arrived to make the search, and appellant seized the jug of liquor and went to the back room; and that he could not see what disposition she made of it.
The court refused appellant's request for a directed verdict. That action of the court is assigned and argued as error. We are of opinion that the request should have been granted.
To start with, appellant was entitled to the prima-facie presumption that the possession of the liquor was that of her husband. It was held in Wylie v. State, 151 Miss. 897, 119 So. 825, that the prima-facie presumption is that liquor in the joint possession of husband and wife is under the control of the husband; that in legal contemplation he is in control of the premises. It is true the evidence showed that appellant in trying to destroy the jug of whisky had the manual possession of it, but under the law it does not conclusively follow that such possession is unlawful.
In Harness v. State, 130 Miss. 673, 95 So. 64, the court held that a person not the owner, nor the original possessor of a bottle of whisky, but who merely attempted to hand the bottle from one person to another, was not guilty of unlawfully possessing the liquor. To the same effect is Brazeale v. State, 133 Miss. 171, 97 So. 525.
The possession contemplated by the statute as a crime is a guilty possession (Code 1930, section 1974). According to the uncontradicted evidence appellant had no such possession. Her possession was transitory; it was not based on either ownership or right to control. Her possession was for the sole purpose of putting an end to the unlawful possession of the liquor by her husband.
Reversed and judgment here.