City of Seattle v. Green

• Decision Date: 13 March 1958
• Docket Number: No. 34184,34184
• Citation: 51 Wn.2d 871,322 P.2d 842
• Parties: CITY OF SEATTLE, Respondent, v. Leon GREEN, Appellant.
• Court: Washington Supreme Court

Page 871

51 Wn.2d 871

322 P.2d 842

CITY OF SEATTLE, Respondent, v. Leon GREEN, Appellant.

No. 34184.

Supreme Court of Washington, Department 2.

March 13, 1958.

E. K. Marohn, Seattle, for appellant.

A. C. Van Soelen, Frank W. Draper, Thomas J. Owens, Seattle, for respondent.

ROSELLINI, Justice.

The defendant was charged in the police court, Seattle, King County, Washington, with illegal possession of alcoholic liquor and was found guilty. He appealed to the superior court, where the jury returned a verdict of guilty. Appealing to this court, he raises a number of objections to the proceedings in the trial court, one of which is determinative of the case.

The complaint, filed by an officer of the Washington State Liquor Control Board, charged that,

'On or about the 29th day of April, 1956, at the City of Seattle, in King County, Washington, the said Defendant did commit a misdemeanor as follows, to-wit: Then and there being the said defendant did wilfully and unlawfully have possession of certain intoxicating liquor, to-wit: Whiskey, at 418 Maynard Avenue, with intent to sell the same, all of which is contrary to Ordinance No. 69284, Sections 2 of the City of Seattle, entitled 'An Ordinance relating to the manufacture, importation, transportation, possession, distribution and sale of certain alcoholic liquors, and amending Sec. 2, of Ordinance No. 64599,' approved June 22, 1939, and against the public welfare and good order of the City of Seattle.'

Section 2 of Ordinance No. 69284 provides:

'It shall be unlawful to manufacture, import, transport, possess, distribute or sell liquor, as defined herein or in the Washington State Liquor Act (Chap. 62, Laws of 1933, Ex.Ses., as amended) except as authorized or permitted by the provisions of said Act.'

At the time this ordinance was passed, the definition of unlawful possession was contained in the Laws of 1937, Chapter 144, § 1, p. 518, which provided:

'Any person who shall keep or possess liquor on premises conducted or maintained by him as principal or agent, with the intent to sell the same contrary to provisions of this act, shall be guilty of a gross misdemeanor. The possession of liquor by such principal or agent on premises conducted or maintained, under Federal authority, as a retail dealer in liquors, shall be prima facie evidence of the intent to sell liquor.' Cf. RCW 66.44.170.

This act was amended in 1955, and the first sentence now reads:

'Any person who keeps or possesses liquor upon his person or in any place, or on premises conducted or maintained by him as principal or agent with the intent to sell it contrary to the provisions of this title, shall be guilty of a violation of this title.' RCW (Sup.1955) 66.44.170.

The ordinance has not been amended to include this new definition.

The defendant maintains that the complaint and the proof were insufficient to support a conviction under the ordinance, since no attempt was made to show that he conducted or maintained the premises at 418 Maynard Avenue. The overt act of conducting or maintaining premises at which the defendant possesses liquor with the intent to sell it unlawfully was held to be a necessary element of the misdemeanor as this court interpreted the statute in State v. Stump, 16 Wash.2d 140, 132 P.2d 727, wherein it was contended that the statute was unconstitutional, in that it made intent, in and of itself, a crime.

The city's proof showed that the defendant had sold a bottle of whisky in a hotel doorway next door to a cabstand at 418 Maynard, and that he had a key to a locker in the cabstand where additional bottles, the ownership of which he admitted, were found. But the evidence is devoid of any showing that the defendant had any connection with the premises other than the permissive use of the locker; and...