Opinion
No. 21545. Department Two.
March 18, 1929.
INTOXICATING LIQUORS (31, 49) — JOINTISTS — EVIDENCE — ADMISSIBILITY. In a prosecution of a jointist running an apartment house, a pitcher of moonshine whiskey, found immediately after accused had left the room, just entered by an evident customer (who pleaded guilty to unlawful possession), is admissible, in connection with evidence of other sales by the accused in the same room within a few days.
SAME (31, 51) — INSTRUCTIONS. In a prosecution of a jointist running an apartment house, the jury are properly instructed that accused is conclusively presumed to have control over all the apartments until rented to separate individuals, and where all the apartments on one floor were used for unlawful sale, an instruction that each apartment is to be considered a separate entity is properly refused.
Appeal from a judgment of the superior court for King county, Beals, J., entered October 18, 1927, upon a trial and conviction of a jointist. Affirmed.
Schwellenbach, Merrick Macfarlane and Herbert L. Onstad, for appellant.
Ewing D. Colvin and R.L. Bartling, for respondent.
The appellant was convicted on a jointist charge. The facts, as we are able to glean them from the record, are about as follows: Appellant operated and maintained the Bon Air Apartments, located at 1808, Eighth avenue, in the city of Seattle. This apartment house consists of twenty-four apartments on four floors, the majority of which were furnished and occupied. It was the theory of the state that the various apartments on the second floor, where it is charged the joint was being maintained and operated, were all used promiscuously by the appellant for the purpose of selling and serving intoxicating liquor. There was no testimony of any kind introduced relative to there being any liquor in any part of the apartment house, other than on the second floor. At the time of appellant's arrest, deputy sheriffs, armed with search warrants for all the various apartments on the second floor, searched the premises, and found liquor in certain of the apartments and evidences of liquor in others. In one of the apartments, they found a man and woman whom they had observed entering the apartment house, and from which apartment they had seen the appellant depart just before the entrance of the officers. They found, on a table in that apartment, a pitcher containing moonshine whiskey. There is contained, in the record, evidence from other witnesses that, at other times and on various occasions, liquor had been purchased on the second floor of the Bon Air Apartments, and all of these purchases had been made from the appellant, and were delivered from time to time in various apartments, or consumed by the purchasers immediately upon the premises, sometimes being served or delivered in one apartment, and sometimes in another.
[1] There are but two assignments of error; the first covering the admission in evidence of the moonshine whiskey found in the pitcher. It seems that the man found in the apartment house was, at the time of the raid, arrested for possession of intoxicating liquor, and pleaded guilty. But there is evidence in the record indicating that, theretofore, sales had been made in this particular apartment. The man, who was arrested and in whose immediate possession the moonshine whiskey was found, had been seen to enter the apartment house within ten or fifteen minutes of the time the officers made the raid. Appellant had been seen to leave this particular apartment immediately prior to the time when the moonshine whiskey was found. There was no claim that this apartment had been rented to the man found there. The circumstances were such as to not only show that appellant had full knowledge of the fact that liquor was being used, but, taken in connection with other testimony that a like quality of liquor had, within a few days, been sold by appellant in this same apartment, indicated that the premises were, with appellant's consent, being unlawfully used for the purpose charged in the information. This was clearly sufficient to admit the same in evidence.
Some of our observations in the case of State v. Donati, 149 Wn. 53, 270 P. 100, are applicable to the situation which we here find.
[2] The second assignment of error which appellant raises is the failure of the court to instruct that, as a matter of law, each apartment in an apartment house is as much a different entity as are different houses along the same street, and that no presumption arises that the manager of an apartment house has the custody and control of the apartments that are in the building; also the failure to instruct that a tenant in possession of a particular apartment is presumed to have control of that apartment until the contrary is shown.
We do not think that appellant's requested instructions correctly state the law. We think that the manager of an apartment house is conclusively presumed to have the custody and control over all the apartments in the building until such time as it appears that those apartments are rented to separate individuals. In this particular case, the court, by its instructions, fully advised the jury as to the law. The court charged that, in order to convict the defendant, the state must prove beyond a reasonable doubt,
"First, that the premises known as the second floor of the Bon Air Apartments at 1808 Eighth avenue in the city of Seattle, King county, Washington, were, at or about the time charged in the information, a place conducted and maintained for the unlawful sale of intoxicating liquor." And later in the instructions, the court charged the jury that it was necessary to prove beyond a reasonable doubt that the premises known as the second floor of the Bon Air Apartments were being conducted and maintained for the unlawful sale of intoxicating liquor, and
". . . if you do not find that the place was maintained for the sale of intoxicating liquor, then you can not find the defendant guilty, even though you should find that she sold liquor."
Under these instructions, it was necessary for the state to prove beyond a reasonable doubt the theory of the state's case, that is, that these various apartments on the second floor were being promiscuously used, from time to time, by the appellant, for the purpose of peddling liquor. It would undoubtedly be a good defense, if appellant could show, as a matter of fact, that these various apartments on the second floor had been, in good faith, rented to various persons who were actually occupying them and exercising dominion over them. But no such state of facts is shown by this record. There is abundant testimony, on the part of the state, indicating that each and every one of the apartments on the second floor was used by the appellant for the purpose of selling intoxicating liquor therein.
We can find no error in the record.
Judgment affirmed.
MITCHELL, C.J., MILLARD, MAIN, and PARKER, JJ., concur.