Harness v. State

• Decision Date: 05 February 1923
• Docket Number: 22975
• Citation: 95 So. 64,130 Miss. 673
• Court: Mississippi Supreme Court
• Parties: HARNESS v. STATE

95 So. 64

130 Miss. 673

HARNESS v. STATE

No. 22975

Supreme Court of Mississippi

February 5, 1923

INTOXICATING LIQUORS. One not owner nor original possessor, passing bottle of whisky from one person to another, held not guilty of unlawful "possession."

A person who is not the owner nor the original possessor of a bottle of whisky but who merely attempts to hand the bottle from one person to another when all three of them are standing together, is not guilty' of a violation of the law of possessing intoxicating liquors as provided by the statute.

HON. C P. LONG, Judge.

APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.

Joe Harness was convicted of having in his possession intoxicating liquors, and he appeals. Reversed, and defendant discharged.

Reversed, and appellant discharged.

W. J Lamb, for appellant.

In no law book or any decision can there be found anything that will sustain the contention of the state in this case, that the appellant violated the law by having whiskey in his possession under the facts as shown in this case.

Webster gives the following definition of the word possession: 1. A possessing, or holding as one's own. 2. The having holding, or detention of property in one's legal power or command; ownership. 3. Thing possessed. 28 Am. & Eng. Ency. of Law, p. 238, defines the word, possession, as follows: "Possession is often defined to be the detention or enjoyment of a thing which a man holds or exercises by himself or by another who keeps or exercises it in his own name. It has been said to mean simply the owning or having a thing in one's power, and to imply a present right to deal with a thing at pleasure and to exclude other persons from meddling with it, being something more than a mere right or title to a present or future estate."

31 Cyc. p. 924, gives the following definition of the word possession: "The term has been defined as follows: 'Simply the owning or having a thing in one's power; the present right and power to control a thing: the detention and control of the manual or ideal custody of anything which may be the subject of property, for one's use or enjoyment either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name; the detention or enjoyment of a thing which a man holds or exercises by himself or by another who keeps or exercises it in his name; the act of possessing, a having and holding or retaining of property in one's power or command; the sole control of the property or of some physical attachment to it; that condition of fact under which one can exercise his power over a corporeal thing at his pleasure, to the exclusion of all other persons.'"

In the case of Browning v. Volkening, 64 N.Y. 76, the court said: "Possession means simply the owning or having a thing in one's power; it may be actual or it may be constructive. Actual possession exists when the thing is in the immediate possession of the party; constructive possession is that which exists without actual personal occupation."

In the case of Rice v. Frayser, 24 F. 463, the court said: "Possession is that condition of fact under which one can exercise his power over a corporeal thing at his pleasure, to the exclusion of all others." Burr, Law Dict., Tit., Possession.

The text books and decisions in defining what is meant by "possession" used different words and phraseology, but the same idea prevails in all of them as to what is meant by "possession," and that is the word "possession" means the owning, holding or detention of property in one's legal power or command.

In the case at bar, there is no proof to show that the appellant in this case owned or had any control of the whiskey, whatever, but was simply passing it from one party to another, nor did he know, so far as the proof shows, it was whiskey until after the officer had picked up the bottle and said it had whiskey in it. If this is possession so as to violate the law, then after a man has taken a drink and got it into his stomach he is then violating the law because he has got a drink in his stomach.

We respectfully submit the case should be reversed.

H. Tolbert Odom, assistant attorney-general, for the state.

The first and third assignments of error will be discussed at the same time. It is contended that the evidence for the state failed to make out a case. In support of this contention, counsel cite the case of City of Jackson v. Gordon, reported in 119 Miss. 325, 80 So. 785. After reading and carefully considering the opinion of the court in the Gordon case, supra, it seems clear to my mind that this case is not in favor of the appellant's contention, but manifestly against it. I shall briefly discuss the points decided by Judge HOLDEN in this foregoing opinion, and endeavor to show that the action of the trial court in the case at bar in no wise conflicts with this opinion.

The first point is concisely stated by Judge HOLDEN as follows: "There must be actual or constructive intent to do the thing which constitutes the crime; otherwise there is no criminal act."

Intent was conclusively shown in the case at bar, both actual and constructive. The appellant was with his companion and saw him drinking the liquor. He then voluntarily took it into his possession. He actually had it in his hand. Then upon being apprehended by the officer, attempted several times to destroy the evidence by knocking the liquor out of the officer's hand. What further intent could be required?

The second point decided in the Gordon case, supra, was that, it is not a violation of the law to have liquor in one's possession without knowledge thereof. This is unquestionably sound law. But I respectfully submit that the facts show conclusively that the appellant had knowledge of the possession of the liquor in question.

In passing on the third question, Judge HOLDEN simply held that where the appellant's defence was that he had no knowledge of having the liquor in his possession, that where the liquor was found in his possession, then...