Opinion
No. 40337.
January 14, 1957.
1. Intoxicating liquors — presumption that whiskey belongs to owner of premises on which it is found.
Presumption is that whiskey belongs to owner of premises on which it is found.
2. Intoxicating liquors — same — evidence — sufficient to overcome presumption.
In prosecution for unlawful possession of intoxicating liquor, evidence was sufficient to overcome presumption that the whiskey belonged to owner of premises on which automobile, which contained the whiskey, and which belonged to defendant's wife, was parked.
3. Intoxicating liquors — unlawful possession — evidence — sustained conviction.
Evidence was sufficient to sustain the conviction for unlawful possession of intoxicating liquor.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Lowndes County; JOHN D. GREENE, JR., Judge.
Sims Sims, Columbus; Johnny N. Tackett, Aberdeen, for appellant.
I. A conviction should not be upheld on the uncorroborated testimony of a witness who is incriminated by the facts in a case.
II. The Court abused this discretion in allowing the following question over objection of the defendant: "What did he tell you that if you got caught with that whiskey would happen." There is no evidence in the record to link the defendant with any whiskey, certainly not THAT whiskey as referred to by the District Attorney; and such question was an apparently successful attempt by the District Attorney to prejudice the jury. The disputed fact concerning whiskey is assumed by the questioner and is suggestive of an answer. Summerville v. State, 207 Miss. 54, 41 So.2d 377.
III. There is no testimony in the record showing that the defendant had knowledge of any whiskey being in the automobile. Without conscious possession of the liquor the defendant is guilty of no crime. City of Jackson v. Gordon, 119 Miss. 327, 80 So. 785.
IV. Where the whiskey is not found upon the premises in the exclusive possession and control of the accused there must be additional incriminating facts connecting him with such possession, other than the mere finding of the whiskey, aided or unaided by a trail to sustain a verdict of guilty. McMillian v. State, 218 Miss. 264, 67 So.2d 290.
V. Here there was no trail, the whiskey, if indeed it be admitted as whiskey, was found in a car belonging to another, on the premises of another, left there some months by another, one Charlie Robertson.
VI. This Court has many times before refused to sustain a conviction on evidence much stronger than that of the instant case. Baylis v. State, 209 Miss. 335, 46 So.2d 796; Faust v. State, 204 Miss. 297, 37 So.2d 315; Hansbrough v. State, 209 Miss. 625, 48 So.2d 120; Manning v. State, 189 Miss. 807, 199 So. 73; Walker v. State, 199 Miss. 289, 24 So.2d 120.
VII. When liquor is found on the premises of a person, there is a rebuttable presumption that the liquor belongs to the owner of these premises. Crum v. State, 216 Miss. 780, 63 So.2d 780; Williamson v. State, 191 Miss. 643, 4 So.2d 220.
VIII. Here, William Slater was the owner of the premises and had exclusive control thereof. A presumption arose that the liquor in question, if indeed it be liquor, belonged to the said William Slater, and Slater evidently aware of this presumption, plead guilty to the charge of possession of the liquor.
IX. No evidence was offered by the State to overcome the presumption that the liquor in question, if indeed it be liquor, belonged to the witness, William Slater, who was the defendant in another case.
X. The Court erred in granting the following instruction on behalf of the State: "The Court charges the jury for the State that if you believe from all the evidence in this case beyond a reasonable doubt that E.J. Bolin, the defendant, did wilfully and unlawfully have in his possession intoxicating liquors, to-wit: whiskey, on or about the 4th day of November 1955, then it will be your sworn duty to find the defendant guilty as charged". The instruction did not require the jury to believe that the defendant had in his possession whiskey in the district as charged by the affidavit nor did it require that they believe the defendant had in his possession whiskey in the County of Lowndes, nor for that matter, the State of Mississippi.
XI. The question of jurisdiction can be raised on appeal before this Court. Crum v. State, supra; Waldrup v. State, 150 Miss. 302, 116 So. 432.
XII. The Court erred in granting all the instructions requested by the State as all the instructions omit the necessary qualification that in order for the defendant's guilt to appear beyond a reasonable doubt, the evidence must exclude every other reasonable hypothesis consistent with his innocence. Chinn v. State, 218 Miss. 724, 67 So.2d 384; Miller v. State, 99 Miss. 226, 54 So. 838.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The evidence supports the verdict of the jury. Baylis v. State, 209 Miss. 335, 104 So. 145; Borders v. State, 138 Miss. 788, 104 So. 145; City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785; Leggett v. State, 191 Miss. 649, 4 So.2d 234; McInnis v. State, 213 Miss. 491, 57 So.2d 137; Summerville v. State, 207 Miss. 54, 41 So.2d 377; Sykes v. State, 157 Miss. 600, 128 So. 753; Wallace v. State, 189 Miss. 763, 199 So. 78.
II. The Court did not err in giving State's instruction found on page 27 of the record and venue was proven. Chinn v. State, 218 Miss. 724, 67 So.2d 384; Crum v. State, 216 Miss. 780, 63 So.2d 242; Tillman v. State 213 Miss. 136, 56 So.2d 91.
The appellant E.J. Bolin was tried and convicted in a justice of the peace court for the unlawful possession of intoxicating liquor, to-wit whiskey, and was sentenced to pay a fine of $250.00 and serve a sentence of 30 days imprisonment. He appealed to the Circuit Court of Lowndes County, where he was again convicted and sentenced to pay a fine of $400.00 and costs and to serve 90 days of imprisonment.
The proof in the circuit court disclosed that a Plymouth automobile containing about 30 pints of whiskey was found parked on the premises and near the house of one William Slater. The automobile belonged to Mrs. E.J. Bolin, but William Slater testified that the appellant was seen by him placing boxes in the car and that he also saw him remove one or more boxes from the car while it was parked near Slater's house; and that on one occasion the witness asked the appellant, in substance, to do something with the car and that the appellant replied that if the witness got caught that the whiskey would be that of the appellant.
The proof further discloses that the appellant had been injured and had been in the hospital and that this car had remained parked near the house of William Slater from August until November, during a part, if not most, of which period of time the appellant had been in the hospital, but an officer testified that after they found the whiskey in the car the appellant was seen to circle the driveway near where the old Plymouth car was parked, and it seems to be the theory of the State that he failed to stop upon seeing the officer or other persons on the premises. It appears that there was a nightclub nearby which was operated only at night during the period that the appellant was in the hospital.
(Hn 1) The presumption that whiskey belongs to the owner of the premises on which it is found was, (Hn 2) in our opinion, overcome by the testimony of William Slater that he could not estimate the number of times that he had seen the appellant go to and from the parked automobile, and by the further testimony of Slater that when he asked the appellant to do something about the car being there on the premises of the witness, the accused replied that if the witness got caught that then the whiskey "would be his'n", meaning that it would be the appellant's whiskey. The latter did not testify or offer any other witnesses on his behalf to dispute the testimony of Slater to the effect that the whiskey admittedly belonged to the appellant.
The State's proof further disclosed that the officers in making a lawful search of the witness Slater's premises found some "wildcat" whiskey in his house, and that they then found the whiskey in question in the Plymouth automobile. Slater pled guilty as to the whiskey found in his house and paid a fine therefor, but his testimony on the trial of the appellant was sufficient to disclaim any interest in the whiskey that was being kept in the Plymouth automobile.
(Hn 3) We think that the testimony was ample to sustain the conviction of the appellant, that the case did not rest entirely on circumstantial evidence, that the venue was sufficiently proved, that the instructions were not erroneous, and that no reversible error was committed upon the trial.
Affirmed.
Lee, Arrington, Ethridge, and Gillespie, JJ., concur.