Summary
In Williamson v. State, 191 Miss. 643, 4 So.2d 220 (1941), the facts showed that the husband, a carpenter, had been away from home at work for three weeks and upon his return he was served with a search warrant.
Summary of this case from Wood v. StateOpinion
No. 34668.
October 13, 1941.
1. INTOXICATING LIQUORS.
In prosecution for unlawful possession of liquor, evidence that, under authority of a search warrant, 33 half-pints of whisky and 16 pints of wine were found in defendant's home in a locked trunk, created a "prima facie case" against defendant though defendant had been absent from home for some time, since defendant, as husband and father, in legal contemplation was the head of the house and in control of the premises.
2. INTOXICATING LIQUORS.
Where intoxicating liquor is found on premises of which defendant is in possession and control, a rebuttable presumption of fact arises that liquor was in defendant's possession.
3. INTOXICATING LIQUORS.
In prosecution for unlawful possession of liquor, ownership of liquor was not an issue.
4. INTOXICATING LIQUORS.
Although burden of proof was upon state in prosecution for unlawful possession of liquor, jury were free to consider whether prima facie case made by state's evidence had been overcome by evidence for defendant.
5. INTOXICATING LIQUORS.
Evidence that, under authority of a search warrant, liquor was found in a locked trunk in defendant's home which was occupied by defendant's wife and her children, warranted conviction for unlawful possession of liquor, as against defense that defendant had been away from home for three weeks prior to discovery of liquor and that liquor did not belong to defendant and that he knew nothing about it.
ANDERSON and McGEHEE, JJ., dissenting; and ROBERDS, J., dissenting in part.
APPEAL from the circuit court of Leake county, HON. PERCY M. LEE, Judge.
A.M. Warwick, of Carthage, for appellant.
The Court erred in overruling defendant's motion for a new trial. The verdict of the jury was contrary to the overwhelming weight of the testimony, and, in fact, was not supported by the testimony.
The only evidential fact against him introduced was the whisky. Defendant had not been in his home in three weeks prior to the seizure of the liquor in his home; his wife and her two sons and two daughters occupied the home. He must have been conscious of or had knowledge of his possession of whisky before being guilty under the law.
City of Jackson v. Gordon, 80 So. 785.
While the prima facie presumption of liquor in joint possession of wife and husband is the liquor of the husband, such presumption is rebuttable; it is not conclusive.
Wylie v. State, 119 So. 825.
Evidence uncontradicted shows that the defendant actually had not been at his residence within three weeks next prior to the search that resulted in seizure of the liquor.
We submit that the amount of liquor found evidences the fact that liquor was being sold. Wife of defendant operated a restaurant or cafe. Defendant almost constantly and entirely remained away from the town of Lena and home in his contracting business. Is it not indeed more presumptious that some other member of his household kept the whisky for sale, rather than the defendant who did not even stay at home?
We, therefore, respectfully submit that the presumption of control and possession of the husband was overwhelmingly rebutted; and that the great weight of testimony showed that defendant could not have known that the liquor was in his residence, and did not know that it was there.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
The state relied upon the fact that the intoxicating liquors were found in the home of the appellant; that he was responsible for what was in his home, he being the head of the family, theoretically at least, and was charged with notice with what was in his home.
See City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785.
The case of Wylie v. State, 151 Miss. 897, 119 So. 825, goes pretty far in holding that the husband is responsible for what is in his house or premises and seemingly leaves it to the jury to determine from that fact alone that the husband is in conscious and knowing possession, if it is found at his house when no one but he and his wife live in the house.
The latest pronouncement upon presumption against the husband as being the owner of liquor found on his premises in possession of himself or wife is Quick v. State, 2 So.2d 812.
Appellant was indicted for the unlawful possession of intoxicating liquors. The testimony shows that, under authority of a search warrant, there was found in appellant's home in a locked trunk thirty-three half-pints of whisky and sixteen pints of wine. This evidence created for the State a prima facie case as against appellant, for he is, in legal contemplation, the responsible head of the house and in control of the premises. Wylie v. State, 151 Miss. 897, 119 So. 825; Garland v. State, 165 Miss. 136, 146 So. 637. And where intoxicating liquor is found on the premises of which the defendant is in possession and control a rebuttable presumption of fact arises that it was in his possession. 33 C.J. 744; State v. Arrigoni, 119 Wn. 358, 205 P. 7, 27 A.L.R. 310; State v. Kichinko, 122 Wn. 251, 210 P. 364; State v. Dropolski, 100 Vt. 259, 136 A. 835; Morgan v. State, 62 Ga. App. 493, 8 S.E.2d 694.
Appellant's testimony to rebut the prima facie case to this end was substantially as follows: That he had been absent from his home at Lena about three weeks prior to the discovery of the liquors; that he had not been at his home in the meantime, and that the liquors were not his and that he knew nothing about them. He offered also witnesses who testified to his good character, sobriety, and law observance. Against this testimony the jury had before them the fact that he had left the town of Quitman, where he had been working during the period, and went to the town of Tchula and back, with such inferences as they cared to draw from the accessibility of the town of Lena as an intermediate point along the normal route of travel; that he had been in the town of Lena for at least an hour before he was served with the search warrant; that the house and the trunk which contained the liquors were locked, and that the house was opened to the officers by the key of appellant. It is not clear how access to the locked trunk was procured, although there is no evidence that it was forcibly opened. After granting access to this home, appellant left without seeking to satisfy any curiosity as to the result of the search. His family consisted of his wife and a daughter and three stepchildren, two of whom were boys fifteen and eighteen years old. One of the daughters was shown to be employed in another town. The testimony reveals that his wife operated a café and slept at least a part of the time there. The testimony is silent as to who occupied the house while he was away, or whether it was occupied at all. No member of the family testified, and the rebuttal of the prima facie case rested solely in defendant's denial, the evidence tending to show non-accessibility to the home, and his good character. The ownership of the liquors was not an issue.
The assignments of error include the contention that the verdict of the jury was contrary to the overwhelming weight of the testimony, and that defendant's motion for new trial was overruled. Although the burden of proof was upon the State, the jury were free to consider whether the prima facie case, made by the discovery of the liquors in a home to which access was procured by appellant's key and in a locked trunk therein which was not shown to be under the key of another, had been overturned. Their verdict sustained the inferences which such possession authorized, and we are unwilling to displace their judgment by a contrary view. Other assignments of error are without merit.
Affirmed.
DISSENTING OPINION.
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 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.
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.
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.
McGehee, J., concurs in this dissent.
I concur in that part of the dissenting opinion in this case embodied in the following language:
"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.
"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."