Summary
In Shelton v. State, 190 Tenn. 518, 230 S.W.2d 986, a conviction for possession of intoxicating liquor was based on a presumption.
Summary of this case from Perry v. StateOpinion
Opinion filed June 9, 1950.
1. INTOXICATING LIQUORS.
Presumption that husband and head of family is possessor and owner of any whisky found on premises of marital dwelling is presumption of law merely and is effective as proof only so long as there is entire lack of evidence.
2. INTOXICATING LIQUORS.
In prosecution for unlawful possession of intoxicating liquor, testimony of officers that wife was in possession of and exercised dominion over whisky by attempting to destroy it rebutted in its entirety presumption of law that husband and head of family was possessor and owner of any whisky found on premises of marital dwelling.
3. CRIMINAL LAW.
In face of positive evidence, presumption of law has no probative force to support conviction.
4. INTOXICATING LIQUORS.
Evidence was insufficient to sustain conviction of unlawful possession of intoxicating liquor.
FROM GREENE.KILGO ARMSTRONG, of Greeneville, for plaintiff in error.
J. MALCOLM SHULL, Assistant Attorney General, for the State.
Donald Lee Shelton was convicted of unlawful possession of intoxicating liquor in the Circuit Court, of Greene County, SHELBURNE FERGUSON, J., and he appealed. The Supreme Court, GAILOR, J., held that the testimony of the officers that the wife of defendant was in possession and exercised dominion over the whiskey by attempting to destroy it rebutted in its entirety the presumption of law that defendant, as husband and head of the family, was the possessor and owner of any whiskey found on the premises of the marital dwelling, and that therefore there was no evidence to support the conviction.
Reversed and remanded for order of dismissal.
Defendant appeals from conviction of unlawful possession of intoxicating liquor, a fine of $250 and jail sentence of 90 days for the offense. The only assignment of error made to support the appeal is that the evidence was insufficient to support the conviction.
The pertinent facts are these: Armed with a search warrant, officers of Greene County went to the house where defendant lives with his wife. There is no evidence of the legal ownership of the house, whether it was rented or owned by the defendant and his wife, or either of them. The only evidence is that of the State through three law officers who testified that as they approached the house to serve the warrant, they heard the sound of glass being broken and thereafter, when the wife had opened the door they found in the bathroom broken glass of whiskey bottles, and while the officers were on the premises, Mrs. Shelton, wife of the defendant, ran to the front door and threw out two bottles, one of which broke and the other of which was recovered and found to contain whiskey. At the time of this search the defendant was not at home, and there is no evidence whatever, to connect him with possession or ownership of the whiskey.
The case is ruled in all particulars by Jim Black v. State, Greene Criminal, unpublished opinion of December 11, 1948.
The presumption that the defendant, as husband and head of the family, is the possessor and owner of any whiskey found on the premises of the marital dwelling, Crocker v. State, 148 Tenn. 106, 251 S.W. 914, is a presumption of law merely, and is effective as proof only so long as there is an entire lack of evidence. In the present case, the testimony of the officers that the wife was in possession and exercised dominion over the whiskey by attempting to destroy it, rebuts in its entirety, the presumption of law. Kelley v. State, 184 Tenn. 143, 147, 197 S.W.2d 545. In the face of the positive evidence of the officers, the presumption of law has no probative force to support the conviction. Frank v. Wright, 140 Tenn. 535, 548, 205 S.W. 434; Kelley v. State, supra; Illinois Central R.R. Co. v. H. Rouw Co., 25 Tenn. App. 475, 480, 159 S.W.2d 839; North Memphis Sav. Bank v. Union Bridge Const. Co., 138 Tenn. 161, 196 S.W. 492; Whipple v. McKew, 166 Tenn. 31, 60 S.W.2d 1006; Jim Black v. State, supra.
There being no evidence to support the conviction, it results that the judgment is reversed and the case remanded for order of dismissal.
All concur.