Cameron v. State

• Citation: 38 Wyo. 140,265 P. 25
• Decision Date: 15 March 1928
• Docket Number: 1442
• Parties: CAMERON v. STATE OF WYOMING [*]
• Court: Wyoming Supreme Court

265 P. 25

38 Wyo. 140

CAMERON v. STATE OF WYOMING ^[*]

No. 1442

Supreme Court of Wyoming

March 15, 1928

ERROR to District Court, Albany County; VOLNEY J. TIDBALL, Judge.

A. D Cameron was convicted of the unlawful possession of intoxicating liquors, and he brings error.

Affirmed.

Sullivan & Garnett, for plaintiff in error.

The evidence was insufficient to support a verdict of guilty against the plaintiff in error; it failed to show that he was guilty of either actual or constructive possession of intoxicating liquor, described in the information, Gatt v. U.S. 9 Fed., (2nd) 388; Siden v. U.S. 9 Fed. (2nd) 241; Lemke v. State, 241 P. 832; Day v. Comm., 286 S.W. 1063; Wampler v. State, 245 P. 69; Cook v. State, 239 P. 682; Youngblood v State, 240 P. 140; Harlivy v. U.S., 13 Fed. (2nd) 114; State v. Kurtz, 286 S.W. 135; also cases at pp. 422 and 744 and 143 of the same reporter, 286 S.W. Defendant had no control over the place where the liquor was found, State v. Chambers, 286 S.W. 744; one having no control over the premises where liquor is found is not in constructive possession, State v. Kurtz, supra; Royals v. Comm., 131 S.E. 204; circumstances must preclude every other hypothesis save that of guilt, Gardner v. State, 27 Wyo. 316. The undelivered deed from Turner should not have been received in evidence, Henry v. Pesoli, 109 Cal. 53. Admission of the escrow deed without the escrow envelope was reversible error; refusal to give defendant's requested instruction No. A, constitutes reversible error, 7532 C. S.; Gardner v. State, 27 Wyo. 316. There was no evidence establishing the guilt of defendant; even if the circumstances were sufficient to create suspicion, they do not exclude the probability, made stronger by Hazen's confession that the liquor found by officers had been buried by Hazen for use in the operation of his resort; any patron of the resort might with equal force be said to be the possessor of the liquor which the officers found.

William O. Wilson, Attorney General, and James A. Greenwood, Deputy Attorney General, for defendant in error.

The deed executed by Dr. Turner to George Hazen and defendant conveying the premises known as the "Moonlight Ranch" of date June 1st, 1926 and a lease of the same date from Dr. Turner to George Hazen were in evidence; these instruments were placed in escrow out of the control of Dr. Turner and could not be produced in Court as evidence without the permission of defendant and Hazen; defendant and Hazen took possession of the property about June 2, 1926 and made substantial improvements thereon for the maintenance of a dance hall or amusement parlor connected with the bar where drinks were served, or at least found in stock. Intoxicating liquor was found buried on the premises a short distance from the house. Specifications of error complained of in motion for new trial in the brief are confined to the insufficiency of evidence to sustain conviction and the admission of the Dr. Turner deed shows that other specifications of error were waived, Bank v. Ludvigsen, 8 Wyo. 251; Phillips v. Brill, 15 Wyo. 526; C. B. & Q. R. Co. v. Lampman, 18 Wyo. 106. Defendant and Hazen were found in possession of the premises and the evidence showed they had been operating the resort for some three months; the finding of liquor buried on the premises is prima facie evidence of unlawful possession, State v. Chambers, 286 S.W. 744. Dr. Turner testified that defendant was in possession by arrangement with him. The judgment is supported by State v. Briggs, 281 S.W. 107; State v. Price, 274 S.W. 500; Long v. State, 15 Wyo. 263; Curran v. State, 12 Wyo. 569; State v. Collett, 75 P. 271; Roark v. People, 244 P. 909; Flannery v. Comm., 282 S.W. 1065; Snedegar v. State, 150 N.E. 366. There was a conflict of evidence as to possession, but the jury found that the defendant was jointly in possession with Hazen and the finding will not be disturbed on appeal. The judgment should be sustained.

Sullivan & Garnett, in reply.

The lease was never in the bank; it was produced by Hazen at the trial; Dr. Turner testified that he owned the real estate, explaining that he had given a deed to it, which was in escrow; he also volunteered the information that he had given a lease to Hazen; the only actual possession of the premises was in Hazen, according to the evidence; the deed had never been delivered; there had been no transfer of title; the deed was put in escrow so that defendant could buy it any time within one year--it was in the nature of an option to purchase. The deed was not even a circumstance tending to show possession in Cameron; the only purpose it served was to mislead the jury into the belief that Cameron's name, being in the papers, he must be equally guilty with Hazen. The burden was upon the State to show Cameron's connection with the place. Cameron had loaned money to Hazen and was protecting himself, which accounts for his frequent visits to the place; the circumstances are not inconsistent with a rational conclusion of innocence, Gardner v. State, 27 Wyo. 136. Hazen was convicted because he was in possession of the premises; the facts do not justify the conviction of Cameron.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

Plaintiff in error Cameron, and one Hazen, were charged in the District Court of Albany County, Wyoming, with the unlawful possession of intoxicating liquors, consisting of twelve quarts of Gordon gin, in violation of the statute--Chapter 117, Session Laws of Wyoming, 1921. Trial was had, and--a verdict of guilty having been rendered against the defendants mentioned--judgment was entered thereon by the court. The defendant Hazen has acquiesced in the judgment of conviction--the defendant Cameron bringing the cause here for review by proceeding in error.

It is contended first by the plaintiff in error that the record does not present sufficient evidence against him to support a verdict of guilty. It appears that under date of June 1, 1926, one E. M. Turner, the owner of certain real estate in Albany County, Wyoming, executed a deed to the property, in which instrument the defendants Hazen and Cameron aforesaid were named as the grantees. The deed contained the usual covenants, coupled with a statement that the lands transferred by it were not at that time occupied as a homestead or otherwise by Turner--he and his family then residing in the city of Laramie. The covenant of warranty therein ran against all "lawful claims and demands whatsoever, save and except as to the taxes for the year 1926, which taxes the grantees herein assume and agree to pay." At the same time and of even date therewith, there was issued by the owner of the property a lease of the real estate described in the deed above mentioned, which lease named the defendant Hazen alone as lessee. The lease recited that it was for the term of one year, extending from June 1, 1926, with the privilege of renewal yearly for not to exceed five years from its date. The deed above mentioned was placed in escrow in a local bank. The terms of the escrow agreement do not specifically appear in the record.

Upon the trial, the owner of the premises, Turner, testified, without objection, in substance, that at the time that the deed was executed, the defendants Cameron and Hazen entered upon possession of the land; that under this deed and lease these parties entered upon the possession of the land described in the deed and known as the "Moonlight Ranch property;" that they still had possession; that he had never taken possession. On cross examination, he stated that the deed and lease were issued at the same time and "then they took possession." When asked by defendant's counsel, "Any possession that was taken was taken under the lease that you have mentioned--is that true?" --the witness answered: "Probably." Some $ 3,000 worth of improvements were put on the place during the period from June 2, 1926 to September 17th following. Part of the improvements consisted of a dance hall, to which were attached a barroom--where soft drinks were served, a kitchen and a porch. The owner of the premises in the course of his testimony stated, without objection, that he understood the improvements were put there by the parties holding these papers, although they had never told him. Plaintiff in error testified that he loaned Hazen $ 2,000 and had the deed placed in escrow, with the understanding that if Hazen did not pay him the money, he would take over the improvements and the property.

Hazen, when on the witness stand, after answering affirmatively the query whether he claimed the place under a lease from Turner, responded to the question, "And also hold by a deed in escrow in the bank with the right of possession?" thus: "Mr. Cameron and I was in on that. Mr. Cameron thought we had better take that in regards to protecting him." Cameron testified also that he was out at the place "quite often"--Hazen stating that Cameron came out two or three times a week--and there was testimony besides that Cameron had declared to another witness that he "went out every night to get the first crack at the money, and that he had been there practically every night while the business was running."

On or about September 17, 1926, officers with a search warrant, appeared on the premises and entered the front door of the dance hall. They saw the defendant Cameron with another man, engaged in sweeping the dance hall floor. Their testimony was to the effect that thereupon Cameron immediately dropped his broom and rushed into the adjacent room known as the barroom, being closely followed by the officers; that this room was dark at first, but when the light was turned on, Cameron was observed standing behind...