Peeples v. State, 38660

• Decision Date: 09 March 1953
• Docket Number: No. 38660,38660
• Citation: 63 So.2d 236,216 Miss. 790
• Parties: PEEPLES v. STATE.
• Court: Mississippi Supreme Court

Page 236

63 So.2d 236

216 Miss. 790

PEEPLES v. STATE.

No. 38660.

Supreme Court of Mississippi.

March 9, 1953.

E. L. Lamar, Calhoun City, for appellant.

J. P. Coleman, Atty. Gen. By Geo. H. Ethridge, Asst. Atty. Gen., for appellee.

LOTTERHOS, Justice.

Appellant was convicted in a justice of the peace court of unlawful possession of intoxicating liquor. On appeal to the circuit court, he was again found guilty and sentenced. The facts disclosed by the record are as follows: On search of appellant's residence, a four-room house, under authority of a search warrant, officers found two and a half pints of whiskey in an open cabinet in the back room or kitchen. Appellant was not at home at the time. The warrant was served on 'the lady there in the house'. Just before the officers left, appellant came up, and asked what kind of bond they wanted him to make. In defense, appellant testified that he knew nothing about the whiskey, that he was not at home the day of the search, that it was not his whiskey, that he did not put it there, and that he had never seen the bottles until the day of the trial. He stated on cross-examination that he was the head of the family, that the kitchen and the cabinet belonged to him, and that his two children, apparently daughters of 12 and 23 years of age, lived with him. He testified that at the time there were two men taking their meals in his house and one of them stayed there at night. He would not say that the whiskey belonged to them. No one other than these two men and his daughters had access to the kitchen. He would not say that the whiskey did or did not belong to any of these people.

It is first argued by appellant that the verdict was contrary to the great weight of the evidence, that the lower court should have sustained his motion for a new trial, and that the evidence was insufficient to make an issue for the jury. These points will be considered together. The proposition has been stated in City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785, 786, that 'when unlawful liquor is found on the premises or in the physical possession of a person, and such person claims that the liquor is in his possession without his knowledge, a question of fact arises, to be decided by a jury, as to whether or not he knowingly or consciously possessed or controlled the liquor, as it may be reasonably presumed and inferred as a fact that he knows of its presence.'

In Williamson v. State, 191 Miss. 643, 4 So.2d 220, upon search of the defendant's home, a quantity of whiskey was found in a locked trunk. The court stated that 'This evidence created for the State a prima facie case as against appellant, for he is, in legal contemplation, the responsible head of the house and in control of the premises. * * * And where intoxicating liquor is found on the premises of which the defendant is in possession and control a rebuttable presumption of fact arises that it was in his possession'. Williamson testified in rebuttal of this evidence that he had been absent from his home for about three weeks, that the liquor was not his, and that he knew nothing about it. His family consisted of his wife and a daughter and three stepchildren, two of whom were boys 15 and 18 years of age. His wife operated a cafe. In holding that the conviction of unlawful possession of intoxicating liquor should be affirmed, the court stated: 'Although the burden of proof was upon the State, the jury were free to consider whether the prima facie case, made by the discovery of the liquors in a home to which access was procured by appellant's key and in a locked trunk therein which was not shown to be under the key of another, had been overturned. Their verdict sustained the inferences which such possession authorized, and we are unwilling to displace their judgment by a contrary view.' Under the doctrine of the Williamson case, we have concluded that the evidence in the case at bar is such that it was for the jury to determine the factual issue presented. It is true that the Williamson case was affirmed by an evenly divided court. However, in Quick v. State, 192 Miss. 789, 7 So.2d 887, 888, the court followed the Williamson case and stated that there the court had laid down the rule 'that the finding of liquor in the home made out a prima facie case against the husband and father, who in law is the head of the family and in charge of the home', and stated further that the Williamson case 'is binding on us unless * * * it is overruled, and we think the rules laid down therein justify the verdict of the jury in this case in finding that these two half pints of whiskey were in the possession or under the control of appellant'.

In Goss v. State, 187 Miss. 188, 192 So. 494, intoxicating liquor was found in the home of the defendant, apparently in a space under a trap door which was under the cooking stove. Goss testified that the liquor found in his home was not his liquor, that he did not know it was there, and that at the time of the search he and three other adult persons were present. He introduced other evidence tending to show that the liquor had been brought into the house by another person the day before the search without his knowledge. On these facts, the court affirmed the conviction, stating that the jury was not compelled to accept the evidence of the witnesses for the defendant.

We have examined the authorities relied on by appellant and conclude that they are not in conflict with the views above stated. Hansbrough v. State, 209 Miss. 625, 48 So.2d 120, where a conviction was reversed, was an instance where the whiskey was found in a room adjoining the place of business of appellant, which room was rented to another person, who occupied it as his living quarters. This person testified in the case and took full responsibility for the ownership and possession of the whiskey. In City of Jackson v. Gordon, supra, it was held that an accused must 'knowingly' have possession or control of liquor before he is guilty of the crime of possession. It was an instance where the jury had acquitted the accused on evidence submitted that the liquor in question had been left in his pressing shop by a customer and that the accused did not own the liquor nor have knowledge of the fact that it was in the shop. Sellers v. City of Picayune, 202 Miss. 741, 32 So.2d 450, was a case in which whiskey was found in a cabinet in the cafe of the accused. It was shown that the cabinet was at a point where numerous employees in the cafe had access to it, that the cafe was open day and night, and that the employees frequently went to the cabinet to get their personal belongings. The accused testified that he did not own the liquor and did not know that it was in the cabinet. In Revette v. State, 209 Miss. 860, 48 So.2d 511, whiskey was found about 250 yards from the home of the accused and on land belonging to another. There was a path from a point on the lands of the accused to the pasture where the whiskey was found, but it did not terminate at that point, and it was shown that numerous...