Reynolds v. State

• Decision Date: 10 December 1926
• Citation: 111 So. 285,92 Fla. 1038
• Parties: REYNOLDS v. STATE.
• Court: Florida Supreme Court

111 So. 285

92 Fla. 1038

REYNOLDS v. STATE.

Florida Supreme Court, Division A.

December 10, 1926

Rehearing Denied Jan. 12, 1927.

Error to Criminal Court of Record, Polk County; H. K. Olliphant Judge.

Stephen F. Reynolds was convicted of the possession of intoxicating liquor as a second offense against the prohibition laws, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

To constitute 'possession' of intoxicating liquor actual manucaption or presence on person is not necessary but there must be conscious and substantial possession. To constitute 'possession' of intoxicating liquor, there need not necessarily be an actual manucaption of the liquor nor is it necessary that it be otherwise actually upon the person of the accused. There must, however, be a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession.

That accused had possession of liquor found in vehicle under his control may be inferred from circumstances. That the accused was in conscious and substantial possession of liquor found in a vehicle under his domination or control may be lawfully inferred from the surrounding circumstances; especially in the absence of contrary or exculpatory evidence.

On charge of possession of liquor either as first or second offense, specific proof that possession was for sale is not essential; on charge of possession of liquor, it is sufficient for state to prove possession only, and burden is on accused to prove possession was lawful (Rev. Gen. St. 1920, §§ 5468, 5486; Acts 1923, cc. 9266, 9267). Under the provisions of section 5486, Rev. Gen. Stat. 1920, where the accused is charged with the unlawful possession of liquor, either as a first or second offense, specific proof by the state that such possession was 'for sale' is not essential to a conviction. It is sufficient for the state, in either case, to prove possession only, whereupon the presumption arises that such possession was of a character or for a purpose denounced by the statute as unlawful, and the burden is upon the accused to prove his possession to be lawful.

Accused may be convicted as second offender for unlawful possession of liquor, though former conviction was for manufacture (Rev. Gen. St. 1920, § 5458 et seq.). Under the provisions of section 5486, Rev. Gen. Stat. 1920, an accused may be convicted as a second offender upon a charge of unlawfully possessing intoxicating liquor, although his former conviction was upon a charge of manufacturing intoxicating liquor.

Evidence as to former conviction held sufficient on motion for new trial to support conviction of second offense against prohibition laws (Rev. Gen. St. 1920, § 5486). Evidence as to former conviction examined and found sufficient, as against motion for new trial upon the ground that the verdict is contrary to the law and the evidence, to support a conviction of a second offense against the state prohibition laws.

COUNSEL

Rogers & Rogers, of Lakeland, for plaintiff in error.

J. B. Johnson, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

STRUM J.

The writ of error in this case brings here for review a judgment of conviction upon a charge of unlawful possession of intoxicating liquor, the accused having been previously convicted of a violation of the laws against the unlawful manufacture, sale, possession, and transportation of intoxicating liquor.

Judgment was pronounced against plaintiff in error, who will hereafter be called the defendant, as for a second offense, the penalty imposed being within that prescribed by section 5486, Rev. Gen. Stats. 1920.

Defendant contends that the evidence of his possession of the liquor in question was insufficient to support the verdict. There was no evidence on behalf of the defendant. The undisputed evidence of the state shows that four deputy sheriffs were upon a public highway, in the city of Lakeland, on the lookout for an automobile in which, so the officers were informed, intoxicating liquor might be found. An automobile appeared, driven by the defendant, and in which were three other passengers, a man, a woman, and a small child. Suspecting this to be the car they sought, the officers drove up along side it, displayed their badges to the defendant, to whom some of the officers were personally known, and called on the defendant to stop. The defendant, however, declined to stop, but on the contrary accelerated the speed of the car and drove out on the main highway toward and into the country. The officers followed and repeatedly attempted to stop defendant's car, their efforts to do so being plainly observed by the defendant, so the officers testified, but the defendant driver succeeded in frustrating the efforts of the officers to stop his car. After being thus pursued for about 11 or 12 miles along the main road, the defendant turned off into a country lane, along which he drove for some distance. His car was then stopped, and defendant's male companion removed several containers or demijohns and some sacks from the defendant's car and deposited them in some bushes growing inside of a fence along the lane. As the officers approached, the car driven by the defendant proceeded through the yard of a nearby dwelling and on into a swamp. The officers following the car saw the defendant driving it in the manner mentioned, and saw the demijohns and sacks removed therefrom and placed in the bushes. The demijohns were recovered by the officers, and, with the contents of those which were not broken, were introduced in evidence at the trial. Witnesses for the state testified that they contained intoxicating liquor.

In offenses of this character, 'possession' is usually defined as having personal charge of or exercising the right of ownership, management, or control over the liquor in question. Terry v. State, 101 Tex. Cr. R. 267, 275 S.W. 837; Newton v. State, 94 Tex. Cr. R. 288, 250 S.W. 1037; Barnes v. State, 102 Tex. Cr. R. 155, 277 S.W. 647; Sizemore v. Comm., 202 Ky. 273, 259 S.W. 337. To constitute possession, there need not necessarily be an actual manucaption of the liquor, nor is it necessary that it be otherwise actually upon the person of the accused. State v. Aplin, 128 Wash. 36, 221 P. 989. There must, however, be a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession. Baender v. Barnett, Sheriff, 255 U.S. 224, 41 S.Ct. 271, 65 L.Ed. 597; Skidmore v. Comm., 204 Ky. 451, 264 S.W. 1053; Anderson v. State, 132 Miss. 147, 96 So. 163; Brazeale v. State, 133 Miss. 171, 97 So. 525; State v. Munson, 111 Kan. 318, 206 P. 749. That the accused was in conscious and substantial possession of liquor found upon premises or in a vehicle under his domination or control may be lawfully inferred from the surrounding circumstances, especially in the absence of contrary or exculpatory evidence. Simmons v. Comm., 210 Ky. 33, 275 S.W. 369; State v. Schuck, 51 N.D. 875, 201 N.W. 342. We regard the evidence for the state in this case as sufficient to establish, prima facie, possession by the defendant of the liquor in question, and, there being no evidence of contradictory or vindicating circumstances, it follows that the state's evidence, undisputed, is sufficient to support that portion of the verdict relating to possession. See Cotton v. Comm., 200 Ky. 349, 254 S.W. 1061; State v. Meyers, 190 N.C. 239, 129 S.E. 600; McMahon v. State, 70 Neb. 722, 97 N.W. 1035; Autrey v. State, 18 Ga.App. 13, 88 S.E. 715; Simmons v. Comm., 210 Ky. 33, 275 S.W. 369; Terry v. State, 101 Tex. Cr. R. 267, 275 S.W. 837; State v. Parent, 123 Wash. 624, 212 P. 1061; State v. Arrigoni, 119 Wash. 358, 205 [92 Fla. 1042] P. 7, 27 A. L. R. 310; Broens v. United States (C. C. A.) 290 F. 809; 33 C.J. 744, 745.

There being sufficient evidence that intoxicating liquor was in possession of the defendant, the presumption is that such liquor was unlawfully acquired and possessed by the accused, and the burden of showing the contrary is upon the defendant. Chapter 9267, Acts of 1923; section 5468, Rev. Gen. Stat. 1920; Carroll v. Merritt (Fla.) 109 So. 630.

Chapter 9266, Acts of 1923, being inoperative (Porter v. State [Fla.] 108 So. 814), section 5486, Rev. Gen. Stat. 1920, relating to first and subsequent offenses under the state prohibition laws, remains in force. Carroll v. Merritt (Fla.) 109 So. 630. Under the provisions of the section last named, where the accused is charged with the unlawful possession of liquor, either as a first or second offense, specific proof by the state that such possession was 'for sale' is not essential to a conviction. It is sufficient for the state, in either case, to prove possession only, whereupon the presumption arises that such possession was of a character or for a purpose denounced by the statute as unlawful, and the burden is upon the accused to prove his possession to be lawful. Chapter 9267, Acts of 1923; section 5468, Rev. Gen. Stat. 1920. That the possession or transportation of liquor shall have been 'for sale' was a requirement created only by the now inoperative chapter 9266, supra, in connection with certain second offenses therein defined. State ex rel. Lockmiller v. Mayo, 88 Fla. 96, 101 So. 228.

Defendant further contends that because his former conviction was for manufacturing liquor, and the present charge is for possession, he is...