Garland v. State
| Decision Date | 13 March 1933 |
| Docket Number | 30300 |
| Citation | 165 Miss. 136,146 So. 637 |
| Court | Mississippi Supreme Court |
| Parties | GARLAND v. STATE |
1. INTOXICATING LIQUOR.
Wife throwing out and breaking jug of whisky brought by another for her husband held entitled to presumption possession was that of husband.
2. INTOXICATING LIQUOR.
Presumption obtains that liquor in joint possession of husband and wife is under husband's control.
3. INTOXICATING LIQUOR.
Wife's taking of jug of whisky brought in by another for her husband, and throwing it out and breaking jug Held not unlawful "possession" within statute (Code 1930 section 1974).
APPEAL from circuit court of Hinds county HON. W. H. POTTER, Judge.
Mary Garland was convicted for the unlawful possession of intoxicating liquor, and she appeals. Reversed and remanded.
Reversed and judgment here.
C. O. Jaap, of Jackson, for appellant.
The court erred in overruling the motion of the appellant to exclude the testimony of the state and direct a verdict of not guilty.
Prima-facie presumption is that liquor in the joint possession of husband and wife was under control of the husband, though such presumption is rebuttable, husband in legal contemplation being responsible party in control of his premises.
Wylie v. State, 119 So. 825; Wampler et al. v. Corporation of Norton, 134 Va. 606.
If possession was merely for the purpose of breaking, it was transitory possession and no more substantial than that of those persons who had a glass of liquor in their hands for the purpose of taking a drink.
Anderson v. State, 132 Miss. 147; Brazeale v. State, 133 Miss. 171; Harness v. State, 130 Miss. 673.
Instructions should have regard to the case made by the evidence and explain the law clearly with reference to it; it will be error therefore, if the court in charging the law, in reference to a case supposed in an instruction exclude from the consideration of the jury a material question presented by the evidence.
Oliver v. State, 39 Miss. 526; W. B. Littlejohn v. State, 59 Miss. 273.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
As to the fact of the whisky being in the house and the method of its disposal, or rather destruction, there is no conflict. The witnesses for the state and for the defendant are agreed upon that. Such being the case, it is the contention of the state that it is not subject to the rule laid down in Wylie v. State, for as I see it, the presumption, above referred to, does not have to be indulged in so far as this case is concerned. The facts show possession, control find the right of disposal of the whisky.
In the case at bar, even if it should have been admitted that the liquor in fact was her husband's liquor, it would still make no difference so far as her possession was concerned for when appellant undertook to take the liquor out of the house and destroy it on the back steps her possession of it became more than mere fleeting or transitory possession and under these facts should be controlled by the case of Goodman v. State, 130 So. 825.
Anderson v. State, 132 Miss. 147, 96 So. 163; Holly v. State, 144 Miss. 726, 111 So. 139; Adair v. State, 148 Miss. 240, 114 So. 345; Jones v. State, 152 Miss. 216, 119 So. 174.
The instruction complained of gave to the jury the right to say whether or not appellant's possession of the whisky was merely transitory. It was proper to refuse this instruction for the reason that there was no evidence to warrant it and it is a familiar rule that instructions must be warranted by and conformed to the evidence in the case.
Adams v. State. 124 So. 440; Weeks v. State, 140 So. 696; Smith v. State, 137 So. 96.
Appellant was convicted of the crime of unlawfully possessing intoxicating liquor and fined in the sum of one hundred dollars. From that judgment she prosecutes this appeal.
Two deputy sheriffs of Hinds county and a police officer of the city of Jackson, with a proper search warrant, entered the home occupied by appellant and her husband. They testified that on their arrival they found appellant breaking a jug containing whisky.
Appellant as a witness in her own behalf admitted the truth of the testimony of the officers. Her defense was that she did not unlawfully possess the whisky; that it belonged to her husband; that he possessed it. She testified that she and her husband, Odell Garland, were man and wife and the owners of the home searched; that she objected to her husband having whisky in the home, but be kept it notwithstanding her protests; that a few minutes before the search was made by the officers a negro boy brought a jug of whisky to her...
To continue reading
Request your trial
-
Millette v. State
... ... In a home occupied ... by husband and wife, the law presumes possession of the ... property is in the husband, and this presumption does not ... disappear until the contrary somewhere affirmatively appears ... Wylie ... v. State, 151 Miss. 897, 119 So. 825; Garland v ... State, 146 So. 637 ... So far ... as the narcotics were concerned, Mrs. Millette, testifying ... for the defendant, admitted everything that was testified ... about by the officers with reference to the sack of ... narcotics. In other words, her testimony is substantially the ... ...
-
People v. Martin
...422, 99 Cal. Rptr. 139, 491 P.2d 1115.) 6. We also found support for defendant Mijares's position in a Prohibition era case, Garland v. State (1933) 165 Miss. 136 , in which the Mississippi Supreme Court declared that a wife who had been arrested for throwing out a jug of illegal alcohol ha......
-
People v. Mijares
...of defendant does not constitute possession can be found by analogy to certain of the prohibition cases. Thus, in Garland v. State (1933) 165 Miss. 136, 146 So. 637, the defendant was convicted of illegally possessing intoxicating liquor. Police officers broke into the defendant's home, whe......
-
People v. Cole
...a jug of illegal alcohol had possessed it for the sole purpose of putting an end to the unlawful possession of the liquor by her husband. (Ibid.) The Mijares court held, in paraphrasing Garland, that "in throwing the heroin out of the car, defendant Mijares maintained momentary possession f......