State v. Beach

• Decision Date: 10 October 1931
• Docket Number: 5715
• Parties: STATE, Respondent, v. J. E. BEACH, Appellant
• Court: Idaho Supreme Court

3 P.2d 539

51 Idaho 183

STATE, Respondent, v. J. E. BEACH, Appellant

No. 5715

Supreme Court of Idaho

October 10, 1931

CRIMINAL LAW-INTOXICATING LIQUOR-POSSESSION-SEARCHES AND SEIZURES.

1. Search made without warrant, with defendant's consent held not unreasonable.

2. Finding of intoxicating liquor on premises of which defendant has possession and control creates rebuttable presumption that liquor was in his possession.

3. That evidence regarding defendant's ownership and knowledge whisky was in house was conflicting did not require court to disturb conviction for possessing intoxicating liquor.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Conviction of unlawful possession of intoxicating liquor. Judgment affirmed.

Affirmed.

W. L Dunn, for Appellant.

The defendant was prejudiced by reason of the court denying his motion to suppress all evidence on the ground that the same was obtained by an illegal search and seizure. (State v. Arregui, 44 Idaho 43, 52 A. L. R. 463, 254 P. 788; United States v. Mounday, 208 F. 186; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Farris v. United States, (Ida.) 24 F.2d 639; United States v. Lydecker, 275 F. 976; State v. Bonolo, 39 Wyo. 299, 270 P. 1065.)

Fred J. Babcock, Attorney General, Sidman I. Barber and Z. Reed Millar, Assistant Attorneys General, and O. W. Witham, Prosecuting Attorney, for Respondent.

Appellant's ownership and control of the premises, and his position as head of the household, created a rebuttable presumption that the liquor was in his possession, and presented an issue of fact to the jury. (33 C. J. 743, 744; State v. Arrigoni, 119 Wash. 358, 27 A. L. R. 310, 205 P. 7; George v. State, 37 Ga.App. 513, 140 S.E. 903; State v. Kichinko, 122 Wash. 251, 210 P. 365.)

VARIAN, J. Lee, C. J., and Budge, Givens and McNaughton, JJ., concur.

OPINION

VARIAN, J.

Appellant was convicted of the crime of unlawful possession of intoxicating liquor in the probate court. On appeal, after trial de novo, he was again convicted and prosecutes the present appeal from such conviction.

Prior to each trial in the courts below he unsuccessfully moved to suppress certain evidence on the ground that it had been obtained under an unlawful search.

On November 21, 1930, the sheriff of Twin Falls county, with two deputies, proceeded by automobile to appellant's home north of Buhl, where he lived in a large two-story house with his family. Leaving a deputy with the car in front of the house, the sheriff proceeded with Deputy Wilson to the cow barn, within 100 yards, where appellant was milking a cow, and placed him under arrest upon a charge of selling intoxicating liquor to minors.

After being placed under arrest appellant was told by the sheriff that he would "have to search the place for liquor," or "was going to search for whisky," to which appellant replied, "Go ahead, that he wouldn't find any." Appellant remained milking at the barn and in charge of Deputy Wilson. The sheriff then went to the house in company with Deputy Parker, called Mrs. Beach to the door, and stated that he had placed appellant under arrest, and wanted to search the premises. She replied, "All right."

Before she answered Mrs. Beach started to step out on the porch but went back and drew the door close to her. She was heard to whisper to someone inside but what she said could not be distinguished by the officers. This was followed by sounds of footsteps going upstairs. Mrs. Beach then opened the door and the officers entered the house.

The sheriff went upstairs (which consists of four rooms; three with beds in them and a large room containing no bed, the two bedrooms opening off the large room, which contained a piano and some chairs, and one bedroom having a large opening into it from the large room) and found a married daughter of appellant pouring whisky from a gallon jug into a slop-jar. She said it was her whisky and that "they did not know it was there." The sheriff secured the jug, partly full, and a pint bottle, which was beside the slop-jar, containing some whisky.

A subsequent search revealed two five-gallon kegs in a ditch back of the house, a still in the granary near the house, a hose, smelling of alcohol, hanging on a nail in a feed bin in the cow barn, also a small funnel in the same place, and a five-gallon keg, smelling "very strong of liquor" in the hay-mow of the cow barn. Appellant told Deputy Parker, who found this keg, that he "should have got it two or three days sooner; that it was full then," or "it's a good thing you didn't find that a couple of days ago; it was full then."

The foregoing is a statement of the principal facts bearing on the questions presented by this appeal.

At the close of the state's case, appellant moved an advisory verdict which was denied, and declined to put in any evidence.

Two points are presented by this appeal which we will consider in order. It is first contended that the court erred in not granting the motion to suppress the evidence because the search of appellant's house was made without a search-warrant and was not justified upon the theory that it was incident to the arrest that took place at the cow barn, or that appellant could be bound by his wife's consent to the search of the house, not given in his presence.

It will not be necessary to determine whether under the facts of this case, appellant was bound by his wife's consent to a search of the house, or whether it may properly be justified as identical to the arrest upon another charge...