Crocker v. State
| Decision Date | 14 April 1923 |
| Parties | CROCKER v. STATE. |
| Court | Tennessee Supreme Court |
Appeal from Criminal Court, Davidson County; Jas. D. De Bow, Judge.
Flora Crocker was convicted of unlawfully keeping whisky intended for present sale at retail, and she appeals. Reversed and remanded.
John W Hilldrop and Newman Brandon, Jr., both of Nashville, for appellant.
Wm. H Swiggart, Jr., Asst. Atty. Gen., for the State.
The defendant, a married woman, was indicted for violation of the liquor laws, the indictment containing several counts.
The state elected to go to trial upon the first count, which charged the defendant with unlawfully keeping in stock four pints of white corn whisky, intended for present sale at retail, as a beverage.
The jury returned a general verdict of "Guilty," and assessed a fine of $100, and a jail sentence of 30 days.
The defendant has appealed, and claims (a) that the evidence preponderates against the verdict, and (b) that there is no evidence to sustain the verdict.
(a) Only two witnesses were introduced, a police officer and the defendant.
The policeman testified that he visited defendant's "home or place of business" on March 12, 1921; that he went there on complaint; that he went across the street to an iron yard there, and watched the house a few minutes, and saw a man go across the street and up the steps; that it was after dark; that he followed the man to the head of the steps; that the man asked her if she had anything, and she said she did; that she opened the door and went to a rat hole in the hall, and took a half pint of whisky out; that he threw his flashlight on her, and went to this rat hole and got four half pints out; that defendant is married, and lives there with her husband; that when he flashed his light on her she threw the bottle out of the window.
The defendant denied that she had any whisky concealed about her person; denied that she had any whisky concealed on the premises for sale; denied that she had in her possession, or that there was in the house, any whisky at all; denied that she picked up any bottle from the rat hole. She says that she was then married and living on the premises with her husband who rents the house; that she had started to get a drink of water when the policeman grabbed her; that she has been arrested on two previous occasions for selling whisky.
It is evident that the statements of these two witnesses are in direct conflict. Neither is corroborated. We cannot say under these circumstances, that the evidence preponderates in favor of defendant's contention that there was no whisky on the premises.
(b) Under the second assignment, it is argued that there is no evidence to sustain the verdict, because there is no evidence that defendant herself owned the whisky which the officer found, or that she was keeping it in stock for present sale.
It is argued that, the defendant being married and living with her husband, the presumption is that the whisky belonged to him, and that the small quantity found shows it was not being kept for commercial purposes by any one.
The first count of the indictment, as already pointed out, charged that defendant "did have and keep in stock in a certain place, to wit, 300 Second Avenue South, in the city of Nashville, Davidson county, Tenn., certain intoxicating liquors, to wit, 4 half pints of white corn whisky, said intoxicating liquors being intended for present sale at retail as a beverage," etc.
Could the state's evidence, assuming it all to be true, sustain a conviction under this count?
This count of the indictment is based on chapter 3 of the Acts of 1917, the first section of which provides:
"That it shall be unlawful for any person, firm or corporation to have or keep in stock, in any warehouse or place of business or other place within the state of Tennessee, any intoxicating liquors, including wine, ale or beer, intended for present or future sale as a beverage, either at wholesale or retail and whether intended to be sold for delivery at the place of sale or to be shipped or otherwise transported for delivery at another place."
The gravamen of the offense is not that some person on the premises may make a sale of intoxicating liquors for beverage purposes. That offense is covered by other statutes. The offense denounced is keeping liquor stored on the premises for the purpose of present or future sale.
There is nothing in the state's evidence which shows that the defendant, rather than her husband, owned or stored the whisky, or that she, and not the husband, was keeping it at their residence for the purpose of present sale.
The leased premises were under the dominion and control of the husband, not the wife. The husband's domicile was, of course, that of the wife; and this would be true although she were actually living in another state. Hascall v. Hafford, 108 Tenn. 355, 357, 65 S.W. 423, 89 Am. St. Rep. 952.
But the husband is in law the head of the...
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Lea v. State
... ... Lea, ... was his wife and was on the premises in that capacity. We ... find no evidence that she was personally in possession of the ... liquor, or exercising any control over it. The judgment will ... be reversed as to her on the authority of Crocker" v ... State, 148 Tenn. 106, 251 S.W. 914, and cases therein ... cited. [1] ... A ... companion case, wherein the same parties appeal from a ... judgment revoking a parol, heard with the instant case, is ... likewise affirmed as to Fred Lea and reversed as to the wife ... \xC2" ... ...
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Waller v. State
...fixed the possession in him, as the head of the house, relying on Crocker v. State, 148 Tenn. 106, 251 S.W. 914. We distinguished the Crocker case, which was a prosecution Chapter 2, Acts of 1917, for keeping liquor for sale, in Johnson v. State, 152 Tenn. 184, 274 S.W. 12, and held that, "......
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Johnson v. State
...insisted that the presumption applied that the liquor belonged to the husband as the head of the house. The case of Flora Crocker v. State, 148 Tenn. 106, 251 S.W. 914, is relied The indictment contained four counts charging (1) receiving; (2) possessing; (3) transporting interstate; and (4......
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Evans v. State
...or reject the testimony of the son. In other words, the credibility of the son's testimony was a matter for the jury. In Crocker v. State, 148 Tenn. 106, 251 S.W. 914, was held that ownership of land on which whisky was found raised a presumption that the owner of the land was the owner of ......