State v. Compton

• Decision Date: 06 July 1927
• Docket Number: No. 4192.,4192.
• Citation: 297 S.W. 413
• Parties: STATE v. COMPTON et al.
• Court: Missouri Court of Appeals

297 S.W. 413

STATE v. COMPTON et al.

No. 4192.

Springfield Court of Appeals, Missouri.

July 6, 1927.

Appeal from Circuit Court, Christian County; Fred Stewart, Judge.

Willie Compton and W. L. Blansit were convicted of unlawful possession of whisky, and they appeal. Affirmed as to defendant Compton, and reversed and remanded as to defendant Blansit.

BRADLEY, J.

Defendants, together with one Leo Thurman, were charged by information filed in Taney county with the unlawful possession of two gallons of whisky. Thurman fled the country and was not apprehended. The venue was changed to Christian county where defendants were convicted and the punishment fixed by the jury was a fine of $200 each. Motion for a new trial was filed and overruled and defendants appealed.

In the motion for a new trial error is assigned (1) on the sufficiency of the evidence, (2) on the admission of evidence, and on the refusal of the court to instruct on circumstantial evidence.

The date of the alleged offense as charged in the information was August 21, 1925. There was a grape carnival at Hollister, in Taney county, on Friday, August 21, 1925. The state's evidence was in substance as follows: Riley Thomason testified that he was deputy sheriff and city marshal; that about 9 o'clock p. m. August 21st defendants and Thurman arrived in Hollister, at or near the Carnival grounds, in a touring car; that Thurman and defendant Compton were in the front seat and that Thurman was driving; that defendant Blansit was in the rear seat; that he (witness) had a tip and was watching for them; that he got on the running board and got hold of Thurman and that defendant Compton "raised up with a two gallon jug"; that he had "two of them and pushed them in the bottom of the car"; that the car started on and that he (witness) rode 10 or 15 feet and jumped off; that defendant Compton broke a jug in the car and that the contents smelled like whisky.

W. H. Simmons, sheriff, testified that next day while defendant Blansit was in his custody and while arranging for a bond Blansit told him that the whisky was not his; that it belonged to Compton.

Defendant Compton was a witness and testified that the deputy sheriff did not get on the car; that he was about 10 feet distant; that he (defendant) had no whisky in the car. Defendants offered other evidence which we may say established that the car belonged to Thurman. Also defendants offered the evidence of a witness who repaired the exhaust pipe on this car about 3 hours after the alleged commission of the offense charged, and this witness testified that he did not smell any whisky about the car.

This evidence is not sufficient to establish possession in Blansit. The statement of Blansit that "the whisky was not his; that it belonged to Mr. Compton," together with the other facts and circumstances in evidence, was evidence that there was whisky in the car; but the evidence does not show that Blansit had the possession. He was in the rear seat. Compton was in the front seat, and, according to witness Thomason, Compton had possession of the jug and broke it. Possession is defined in 33 C. J. 585, as follows:

"To possess means to have the actual control, care, and management of the liquor, and not a passing control, fleeting and shadowy in its nature. Neither ownership nor actual physical possession is essential. And possession through a coprincipal or through an innocent agent would come...