Renfro v. State

• Decision Date: 23 November 1940
• Parties: RENFRO v. STATE.
• Court: Tennessee Supreme Court

144 S.W.2d 793

RENFRO v. STATE.

Supreme Court of Tennessee.

November 23, 1940.

Error to Circuit Court, Washington County; Ben Allen, Judge.

Clay Renfro was convicted of unlawful possession of intoxicating liquor, and he brings error.

Affirmed.

D. A. Vines and Thos. E. Mitchell, both of Johnson City, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

DeHAVEN, Justice.

Plaintiff in error, Clay Renfro, hereinafter referred to as defendant, was indicted for the unlawful possession of intoxicating liquor. Upon his trial he was found guilty and his punishment fixed at a fine of $125, and a sentence of six months' imprisonment in the county jail. He has appealed to this court and assigned errors.

It is complained that there is no evidence to support the verdict of the jury and that the evidence preponderates in favor of the innocence of defendant.

E. W. Sells, sheriff of Washington County, being the prosecutor in the case, testified in substance that he had been acquainted with defendant for several years and had occasion to be in his place of business in the month of August, 1939, in company of T. C. Ozment, Alcoholic Investigator of the State of Tennessee; that upon a search they found 13½ cases of stamped whisky. He admits that they acted without a search warrant.

T. C. Ozment, witness for the State, testified that he purchased a pint of whisky from defendant on the same date that he took the sheriff to defendant's place. He was asked:

"Q. Who had the whisky there? A. Renfro came out to the car, I asked him for one brand, and he said he didn't have it, and named over two or three different brands, and told him, well give me that. He walked on back in the place and I walked behind him and I stayed in at the counter, and he brought it out in a sack and I gave him $1.25."

On the objection of the defendant the court excluded the testimony with reference to the 13½ cases of whisky on the ground that the officers had no search warrant. The case went to the jury under the instructions of the trial judge upon the pint of whisky which had been purchased by the witness, Ozment, to which defendant saved exception upon the ground that the one pint of whisky was not included in the indictment.

The indictment charges that on the 12th day of August, 1939, defendant "then and there, unlawfully did possess thirteen and one-half cases of * * * intoxicating liquors, * * *, in Washington County, Tennessee, a county wherein the sale and possession of intoxicating liquors is prohibited * * *."

We think the one pint of whisky was included in the indictment. He was possessed of this whisky on that same day and on the same premises as he was possessed of the thirteen and one-half cases of whisky. It was all one possession. The defendant could not have been prosecuted for the possession of the pint of whisky and separately prosecuted for the possession of the thirteen...