State v. Denied

• Decision Date: 01 May 1928
• Docket Number: (No. 6069)
• Citation: 105 W. Va. 495
• Court: West Virginia Supreme Court
• Parties: State v. L. T. Danser Rehearing Denied

105 W.Va. 495

State

v. L. T. DanserRehearing Denied

(No. 6069)

Supreme Court of Appeals of West Virginia.

September 11, 1928.

Submitted April 24, 1928.

Decided May 1, 1928.

Submitted April 24, 1928. Decided May 1, 1928.

1. Moonshine Liquor Evidence In Prosecution for Unlawful Possession of Moonshine Liquor Evidence Sufficient if it Shows Defendant Owned or Had Dominion or Control Over it.

In the prosecution for unlawful possession of moonshine liquor evidence is sufficient if it shows that defendant owned or had dominion or control over it. (p. 497.)

2. Same Case in Which Evidence is Sufficient to Warrant Submission to Jury and to Warrant Conviction.

A case in which the evidence is sufficient to warrant submission to a jury and to warrant conviction, (p. 499.)

Error to Circuit Court, Monongalia County. L. T. Danser was indicted for unlawful possession of moonshine liquor and he brings error.

Affirmed.

Eugene H. Long, for plaintiff in error. Howard B. Lee, Attorney General, and B. A. Blessing, Assistant Attorney General, for the State.

Woods, Judge:

L. T. Danser wras indicted jointly with Charles Helfrick, Robert Moore and Russell Tennant, at the April 1927 term of the circuit court of Monongalia county, on the charge of unlawfully having moonshine liquor in their possession. Danser w7as tried separately at the same term of court and found guilty by the verdict of a jury of the offense charged. From the judgment and sentence rendered against him on the verdict, he brings error to this Court.

On the evening of February 23, 1927, deputy sheriffs, Carl Beebe and George Schenick, having information that a Chevrolet touring car containing a quantity of moonshine liquor had that evening been driven into a garage at Richwood Avenue, Morgantown, armed with a search warrant, went to the garage. Both state that the five five-gallon and the six one-gallon cans of liquor found were piled on the floor of the car between the front and back seats and on the back seat, and that the same were but partially concealed from view by the side curtains which had been placed over them. The officers, after gaining admittance, stationed themselves in the garage for the purpose of apprehending the parties to whom the liquor belonged. About five o'clock the following morning, Danser, Helfrick, Moore and Tennant came to the garage. All four had been at the Danser home a few minutes before. They rode down in Tennant's car, passed the garage, turned, came back and parked across the street from it. After this the four finally succeeded in getting into the garage through a side door, the defendant and Tennant being the first to enter. The side curtains were removed from the liquor and put up on the sides of the car. Defendant assisted the other three by use of his flashlight, Tennant and Moore got into the car, while Helfrick opened the door, and the defendant, by the use of his flashlight, directed the way out. The arrest was made just after the men began to move the car from the garage. Defendant and each of his companions deny knowledge of the presence of any liquor in the car.

Defendant's counsel argues that there is nothing in the evidence to show that the defendant had control of the liquor or that he had knowledge of its presence in the car conditions, he argues, which are made necessary to the crime of unlawful possession. Ownership is not a necessary element in the guilt of one charged with its unlawful possession. State v. Edgell, 94 W. Va. 198. Possession means simply the owning or having a thing in one's own power. Bryson v. McShane, 48 W. Va. 129, 49 L. R. A. 527; Brown v. Yoldening, 64 N. Y. 80. It implies a present right to deal with the property at pleasure and exclude other persons from meddling with it. "By the possession of a thing, we always con, ceive the condition in which not only one's own dealing with the thing is physically possible, but every other person's dealing with it is capable of being excluded." Bouvier's Law Dictionary. This wTas quoted in Lumber Comipany v. Lumber & Mining Company, 51 W. Va. 554, 66 L. R. A. 33. Possession by two persons jointly as well as one person alone is within the statute. 33 C. J. 580, and note 14 (d), citing cases. The four men were together. Tennant, who is a brother-in-law of Danser, and Moore had stayed that night at Danser's home. Danser and Helfrick, who had been to Uniontown, met them at the former's home shortly before 4:40 that morning. The four left the house at that time and went to the garage together. Tennant...