Schwartz v. State
| Decision Date | 09 March 1927 |
| Parties | SCHWARTZ v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.
Charles Schwartz was convicted of unlawfully having in his possession intoxicating liquor, and he brings error. Reversed, with directions.--[By Editorial Staff.]
Plaintiff in error, hereafter called the defendant, was convicted in the circuit court of unlawfully having in his possession intoxicating liquor. He was sentenced to imprisonment in the county jail for a term of five months. From such sentence and judgment the defendant seeks review. He assigns as errors that the evidence was insufficient to sustain the conviction of guilt; that the evidence failed to establish illegal possession of prohibited liquor; and errors of the court in the conduct of the trial and in instructions to the jury.Reilly & O'Brien, of Fond du Lac, for plaintiff in error.
John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and James Murray, Former Dist. Atty., and L. E. Gooding, Dist. Atty., both of Fond du Lac, for the State.
The defendant, Charles Schwartz, was a man with a family, 52 years of age, and had resided in Fond du Lac for 41 years. He had formerly been a laboring man, and less than a year prior to the offense charged had opened and conducted a soft drink parlor, under license, in said city. Aside from the offense charged, there is nothing in the record to indicate that he had not kept an orderly place, or that his reputation was in any wise impeached. The information charged that the defendant “did have in his possession, and on premises whereon he was authorized to sell nonintoxicating liquor, on the 29th day of October, 1925, at the city of Fond du Lac, Fond du Lac county, Wis., intoxicating liquor, and did have in his possession unlawfully privately distilled intoxicating liquors, and did sell, deal, and traffic in intoxicating liquor.”
There was no attempt on the trial to prove that defendant “did sell, deal, and traffic in intoxicating liquor.” The sole claim of the state was that he had intoxicating liquor in his possession in his place of business. The statute provides that “no such person shall have in his possession on or about said premises any intoxicating liquor.” Subdivision 30, § 165.01, Stats.
[1] There is no dispute in the evidence. The defendant employed his brother, Adolph, to clean out his place every day. Adolph was not employed as a bartender. On the day in question Adolph had been in the place during the forenoon, and, at about noon, the defendant, being desirous of going to the bank, left his brother, Adolph, temporarily in charge of the place to look after it while he was gone. Adolph testified that he had a bottle of liquor in his pocket, but the defendant did not know this. While defendant was away, Adolph took the bottle of liquor from his pocket, and started to prepare a hot drink for himself. While the water was heating, he set the bottle on a workbench under the bar, and placed some sugar in a glass, ready to make the drink when the water was hot. At this time three enforcement officers of the state and a local policeman entered the place and searched it. One of the enforcement officers found the bottle where Adolph had left it, and took it away with him. No one else was in the place at the time, except a person who was using the telephone, and who does not otherwise appear in the picture. Adolph testified that the bottle and liquor belonged to him, and that it was prescription liquor rightfully in his possession. He testified that his brother did not know that he had the liquor, and had no knowledge that it was in the place. The defendant testified that he had no knowledge whatever with reference to the liquor. He did not know his brother had it. He had never seen the bottle, and had never had it in his possession. The state rested its case solely on the theory that the bottle of liquor, being found on...
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United States v. Miller
...(1927) (finding contraband on premises not enough to warrant conviction without showing “conscious possession”); Schwartz v. State, 192 Wis. 414, 212 N.W. 664, 665 (1927) (“Possession signifies some right of dominion or control over the thing possessed.”), so that distinguishes this case fr......
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State v. Labato
...v. Mills, 178 N.Y. 274, 70 N.E. 786, 67 L.R.A. 131 (1904); Gossett v. Commonwealth, 262 Ky. 540, 90 N.W.2d 730 (1936); Schwartz v. State, 192 Wis. 414, 212 N.W. 664 (1927); Reynolds v. State, 92 Fla. 1038, 111 So. 285 (1927); People v. Wolosky, 296 N.Y. 236, 72 N.E.2d 172 (1947); People v. ......
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State v. Black
...comparison, we have held that "possession" requires "some right of dominion or control over the thing possessed." Schwartz v. State, 192 Wis. 414, 417, 212 N.W. 664 (1927). Thus, it was error for the court to rely on the mere allegation of "handling" in the complaint in establishing a factu......
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State v. Brantner
...venue lies.¶12 This is not the first time we have had cause to explore the meaning of "possess" in our statutes. In Schwartz v. State, 192 Wis. 414, 212 N.W. 664 (1927), the State claimed the defendant unlawfully possessed intoxicating liquor by virtue of its mere presence in his business p......