Opinion
No. 43201.
November 2, 1964.
1. Intoxicating liquors — unlawful possession — husband and wife — rebuttable presumption of ownership.
Where defendant was charged with unlawful possession of intoxicating liquor found in his house and denied ownership thereof, and his wife testified that the liquor was hers and she had put rock candy in it, but the State's evidence was that the candy would have changed the color of the liquor and the color was not changed, ownership question was for the jury.
2. Intoxicating liquors — same — same — same.
There is a rebuttable presumption, sometimes called inference, that a person is the owner of liquor found in his home.
Headnotes as approved by Lee, C.J.
APPEAL from the Circuit Court of Prentiss County; N.S. SWEAT, JR., J.
Clarence Chase, Booneville, for appellant.
I. The trial court committed reversible error in overruling defendant's motion for a directed verdict made at the close of all the testimony in the case. Davenport v. State, 144 Miss. 273, 109 So. 707; Haney v. State (Miss.), 43 So.2d 383; Jackson v. State (Miss.), 185 So. 201; Jarmon v. State, 178 Miss. 103, 172 So. 869; McLeod v. State, 140 Miss. 897, 105 So. 757; Quick v. State, 191 Miss. 179, 2 So.2d 812; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; Weathersby v. State, 165 Miss. 207, 147 So. 481; Westbrook v. State, 202 Miss. 426, 32 So.2d 251; Williams v. State (Miss.), 98 So. 107; Wylie v. State, 151 Miss. 897, 119 So. 825.
II. The verdict of the jury in this case is so overwhelmingly against the law and the greater weight of the evidence as to demonstrate a strong bias and prejudice on the part of the jury and to shock the conscience of the court. Brown v. State, 219 Miss. 748, 70 So.2d 23; Conway v. State, 177 Miss. 461, 171 So. 16; Dickerson v. State (Miss.), 54 So.2d 925; Heflin v. State (Miss.), 178 So. 594; Jefferson v. State (Miss.), 52 So.2d 925; Johnson v. State, 168 Miss. 405, 191 So. 127; Patterson v. State, 144 Miss. 410, 110 So. 208; Pegram v. State, 228 Miss. 860, 89 So.2d 846; Williams v. State (Miss.), 98 So. 338; Williams v. State (Miss.), 98 So. 441.
III. The Court committed further reversible error in denying defendant's motion for a new trial. Jolly v. State (Miss.), 174 So. 244; Thompson v. State, 83 Miss. 287, 35 So. 689; Warren v. State, 166 Miss. 284, 146 So. 449.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The usual presumption that the possession is that of the husband was sufficiently rebutted to show that the whiskey was that of the wife. Bond v. State, 249 Miss. 352, 162 So.2d 510; Cobb v. State, 235 Miss. 57, 108 So.2d 719; Gangloff v. State, 242 Miss. 168, 134 So.2d 481; Ivey v. State, 206 Miss. 734, 40 So.2d 609; Matthews v. State, 243 Miss. 586, 139 So.2d 386; Weathersby v. State, 165 Miss. 207, 147 So. 481.
From a conviction for the unlawful possession of intoxicating liquor, Utha Christian appealed.
The appellant has assigned and argued that the trial court committed reversible errors in the trial of this cause (1) in refusing to give his requested instruction for a directed verdict in his behalf, (2) in refusing to set aside the verdict as against the overwhelming weight of the evidence, and (3) in refusing to grant his motion for a new trial.
(Hn 1) The whiskey, for which Utha was convicted, according to the evidence, was found in his home when both he and his wife, Venia, were present.
The rebuttal by the appellant to the presumption, sometimes called inference, that he was the owner since the liquor was found in his home, consisted in his denial thereof. This was supplemented by the evidence of his wife that she found the liquor the day before the search, on a trail, brought it home, and put rock candy in it so that she could use it for pain which she experienced in menopause.
But the evidence for the State was to the effect that rock candy changes the color of white liquor to yellow; and that the liquor in question was white whiskey.
(Hn 2) This case is governed by the principles announced in Wylie v. State, 151 Miss. 897, 119 So. 825 (1929), and followed in Quick v. State, 191 Miss. 179, 2 So.2d 812 (1941); Williamson v. State, 191 Miss. 643, 4 So.2d 220 (1941). Cf. Shepard's Miss. Cit.
It was for the jury therefore, taking into consideration all of the circumstances, together with the interest of the witnesses, to say whether Utha, from the evidence beyond reasonable doubt, was guilty of the unlawful possession of this whiskey. Consequently the court did not err in overruling the requested peremptory instruction, or in refusing to set aside the verdict of the jury and grant him a new trial.
Affirmed.
McElroy, Rodgers, Jones and Brady, JJ., concur.