Summary
In State v. Weller, 263 Or. 132, 501 P.2d 794 (1972), the Oregon Supreme Court held that where there was proof two or more people were living upon premises where marihuana was found the evidence was insufficient for a possession conviction of one of them.
Summary of this case from State v. ElderOpinion
Argued September 8, 1972
Reversed October 9, 1972
On review from the Court of Appeals.
REVERSED.
Stephen S. Walker, Portland, argued the cause and filed a brief for appellant.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, John W. Osburn, Solicitor General, Salem.
The defendant was convicted of the unlawful possession of marijuana. The Court of Appeals affirmed, State v. Weller, 9 Or. App. 431, 496 P.2d 735 (1972), and we granted the petition for review.
The only issue is whether there was sufficient evidence that the defendant had possession of the marijuana.
There was evidence that the defendant lived in a bedroom on the second story of a residence. The defendant had no other relationship to the residence. Two other bedrooms, which were unoccupied, were on the second floor of the residence. There was also evidence that a man and another woman lived some place in the residence. In one of the unoccupied bedrooms on the second floor pots were found in which recently tended marijuana was growing. The defendant was convicted of the possession of this marijuana.
We said in State v. Oare, 249 Or. 597, 599, 439 P.2d 885 (1968), "Evidence of the control or the right to control is necessary to constructive possession." No such evidence is present in this case.
Reversed.