Opinion
No. 34580.
October 13, 1941.
INTOXICATING LIQUORS.
In prosecution for unlawful possession of intoxicating liquor, wherein testimony disclosed that accused had been seen going to and from a place near residence from which by reaching through the fence, he could have reached whisky, 16 pints of which were subsequently found there, and that accused had been observed reaching through the fence and making deliveries of something to occupants of automobiles who visited premises, whether accused was in conscious possession and control of whisky found was for the jury.
APPEAL from the circuit court of Lincoln county, HON. J.F. GUYNES, Judge.
Jas. F. Noble, of Brookhaven, for appellant.
I do seriously contend that the case must be reversed simply because there was not enough evidence upon which to convict the appellant. I am sure except for Wallace v. State, 189 Miss. 763, 199 So. 78, the Court below would not have permitted this case to have gone to the jury. There is a vast difference between the two cases.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
It is clear that the appellant was in charge of possession of the intoxicating liquors found where he was seen delivering the packages to passing vehicles and was certainly sufficient for the jury to believe that the packages delivered were whisky.
Pursuant to the authority of a valid search warrant, the officers made a lawful search of the premises of the appellant's father for intoxicating liquors, and it was shown that the appellant also resided there. They found near the residence sixteen pints of whisky in a large milk can setting on the inside of the field in such proximity to the fence that it could be reached by a person with his hand from the outside. Immediately prior to obtaining the search warrant one of the officers had watched the appellant, from some vantage point on the public highway, going to and from the place where this milk can was later found, reaching his hand through the fence, and then delivering something to the occupants of automobiles who visited the premises while the observations of the officer were taking place. He could not see the milk can itself from where he was, and consequently he did not actually know that the appellant had taken any whisky from the can, except by circumstantial evidence. He did know that he had been reaching his hand through the fence at the place where the can containing the whisky was later found, as aforesaid. We are unable to distinguish the case in principle from that of Wallace v. State, 189 Miss. 763, 199 So. 78, where it was held under similar circumstances that the evidence was sufficient to raise an issue for the jury as to whether the defendant was in the conscious possession and control of the whisky found.
The judgment of conviction and the sentence imposed must therefore be affirmed.
Affirmed.