Ex parte State ex rel. Atty. Gen.
| Decision Date | 31 May 1923 |
| Citation | 210 Ala. 55,97 So. 426 |
| Parties | EX PARTE STATE EX REL. ATTY. GEN. v. STATE. HARBIN |
| Court | Alabama Supreme Court |
Rehearing Denied. June 28, 1923.
Certiorari to Court of Appeals.
Petition of the State of Alabama, on the relation of its Attorney General, for certiorari to the Court of Appeals, to review and revise the judgment and decision of said court in the case of G. L. Harbin v. State, 99 So. 740. Writ granted.
Harwell G. Davis, Atty. Gen., for appellant.
A. A Griffith, of Cullman, for appellee.
The defendant was convicted on a charge that he "did have in his possession spirituous liquors *** contrary to law"-the prosecution being under subdivision 2 of section 2, of Act January 25, 1919, Gen. Acts 1919. p. 6.
The state's evidence was to the effect that the defendant when arrested, had a jug of liquor in his arms, and was in the act of drawing the cork, and had on his person some bottles such as are used for holding liquor.
"The defendant, however," as the opinion of the Court of Appeals recites, "offered evidence tending to show that he had no interest in the liquor, that it was not on his premises, that he had merely gone with the other person, one Stubbs, and on the invitation of Stubbs to take a drink, and that he did not have the jug in his arms but had a dipper in his hand waiting for the jug to be opened, and before the jug was opened the sheriff and his deputies apprehended appellant and Stubbs and seized the liquor."
On this evidence the defendant asked the following charge:
"The court charges the jury that it is not an offense under the law for a person merely to go with another person to another place for the purpose of taking a drink of whisky and if, after consideration of the evidence in this case the jury are satisfied beyond a reasonable doubt that the defendant merely went with Stubbs to get a drink of whisky and that the whisky belonged to Stubbs and was in possession of Stubbs, your verdict must be for the defendant."
In holding that the trial judge's refusal to give this charge was reversible error, the Court of Appeals said:
"We hold that to constitute 'possession' or to 'possess' prohibited liquors, the person charged must either have a property interest in the prohibited liquors and have some dominion over it; or, in the absence of property interest, must have complete manucaption and dominion over the prohibited liquors; that it is not sufficient to show a mere temporary custody in the presence of the owner."
We think that this view of the statute is erroneous, and we hold that the possession prohibited includes any possession by manucaption or physical dominion, of however brief duration and in whatever capacity the possession may be held, if it be for the use, benefit, or enjoyment of himself or any other person, and not merely for the purpose of inspection or destruction. It is none the less an unlawful possession because it is by the permission of the owner of the liquor and in his immediate presence. It may be conceded that in such a case the owner - so called - would remain in the constructive possession of the liquor, and nevertheless his permissive custodian...
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Town of Normal v. Bowsky, 4-85-0557
...21 S.W.2d 190. The better view, and one more consonant with Illinois law, is stated by decisions such as State ex rel Harbin v. State (1923), 210 Ala. 55, 97 So. 426. In Harbin the defendant was arrested with a jug of liquor in his arms. However, he claimed as a defense that he did not own ......
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... ... damages of Wilson as a state deputy law enforcement officer ... and of the National ... Ex parte ... State (Re Harbin v. State), 97 So. 426. And an ... ...
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...for the sole purpose of putting an end to the unlawful possession of Rodrigeuz. (See also State ex rel. Atty. Gen. (Harbin v. State) (1923) 210 Ala. 55, 97 So. 426.) Courts of this state have spoken on the issue of momentary possession on three occasions, and each time there was the clear i......
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...films were obscene.2 That the word 'possession' has variant connotations is well illustrated by such cases as Ex parte State ex rel. Harbin v. State, 210 Ala. 55, 97 So. 426; People v. Fox, 24 Ill.2d 581, 182 N.E.2d 692; State v. Scott, 333 S.W.2d 41 (Mo.), and State v. Puryear, 94 N.J.Supe......