State v. Gohn

• Decision Date: 04 March 1931
• Docket Number: 22590.
• Citation: 161 Wash. 177,296 P. 826
• Parties: STATE v. GOHN.
• Court: Washington Supreme Court

296 P. 826

161 Wash. 177

STATE v. GOHN.

No. 22590.

Supreme Court of Washington

March 4, 1931

Department 2.

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

Carl Gohn was convicted of unlawful possession of intoxicating liquor, and of having twice before been convicted of a like offense, and he appeals.

Affirmed.

Anderson & Richards and Earl W. Husted, all of Everett, for appellant.

Charles R. Denney, of Everett, for the State.

MILLARD J.

The defendant was charged with the offense of unlawful possession of intoxicating liquor, and of having twice before been convicted of a like offense. Answering in the negative the interrogatory, 'Did the defendant own the liquor?' the jury returned a verdict of guilty as charged. From the judgment and sentence pronounced upon the verdict, the defendant appeals.

Two of the buildings on appellant's farm, which is located in the south end of Snohomish county, are used as residences. One is a new house in which appellant resided. Another is an old house, from which appellant removed to his present home upon its completion. The old house was at the time of appellant's arrest and for a long period prior to that date rented to and occupied by a lone widower.

The testimony offered by the state was that on May 18, 1929, two deputy sheriffs went to appellant's farm to search for intoxicating liquor. Upon arrival at that place appellant was seen by one of the deputies running from the direction of a woodshed towards a gate with two pint bottles of moonshine whisky in his hands. Appellant was arrested, and the two bottles of whisky were surrendered to the officer.

Appellant's defense was that the night before the raid a neighbor visited his tenant in the old house and brought with him some wine and three bottles of moonshine. The cost of that liquor was shared by the tenant and his visitor. Two other persons accepted an invitation to be present and partake of the intoxicants. That same night, upon his return from Olympia appellant learned, having gone to the tenant's house to ascertain the cause of the hilarity therein, that his tenant and his tenant's visitors were drinking. Appellant reprimanded the tenant and the guests for having intoxicating liquor on the premises. The noise subsided, whereupon the appellant went to his home and retired for the night. The tenant went to Seattle early the next morning. Two pint bottles partially filled with moonshine whisky were left on the dining room table in the tenant's house. The same day, while the deputy sheriffs were searching the premises for liquor, the appellant recalled the incident of the night before. He hastened to his tenant's house and took from the table the two bottles of moonshine his purpose being to destroy the liquor. As he was departing from the tenant's house with the two bottles of whisky in his hands, the appellant was met by a deputy sheriff to whom upon the deputy's command, the two bottles were delivered.

It is first insisted that the court erred in overruling the demurrer to the information which was defective, as more than one crime was charged therein. That question is not an open one in this state. It was raised in State v. Wengren, 156 Wash. 153, 286 P. 102, 103, and decided adversely to the contention of appellant. We said:

'We have held that sections 7338 and 7339 were enacted as amendments to the original intoxicating liquor prohibition act; that they are both parts of the same act; that the second conviction provision of section 7338 is special as to offenses therein specified, and that the third provision of section 7339 is applicable to all three convictions of violation of the act. State v. Powell, 153 Wash. 110, 279 P. 573.

'Although that case involved a third conviction, the decision of this court that sections 7338 and 7339 are amendments to the original intoxicating prohibition act decides the contention of appellant that section 7339 had been repealed, adversely.

'We have further held, which sustains the information here, that it is the duty of the prosecuting attorneys to allege prior convictions, even though such prior convictions could not affect the sentence to be imposed under our statute. State v. Brames, 154 Wash. 304, 282 P. 48; State v. Thompson, 154 Wash. 663, 283 P. 182.'

Complaining of one instruction given to the jury and of the refusal of the trial court to give to the jury four requested instructions, counsel for appellant contend that the court should have defined 'possession' as including control of the thing possessed with the right to dispose of it in any manner the possessor saw fit. It is argued that the liquor, with the unlawful possession of which the appellant was charged, was owned by a third party; that appellant did not know of the presence of same upon his premises until the arrival of the officers who searched his place; that appellant picked up the bottles of moonshine whisky for the purpose of destroying same and not for the purpose of exercising ownership or possession thereof; that evidence was adduced reasonably raising a defensive issue, therefore the appellant was entitled to instructions affirmatively presenting such issue.

Appellant relies for reversal upon State v. Bostock, 147 Wash. 402, 266 P. 173, and State v. Jones, 114 Wash. 144, 194 P. 585, 587. In the latter case we said that 'possession,' as used in the statute defining the offense of unlawful possession of intoxicating liquor, '* * * means something more than the mere taking in the hand for the purpose of immediately drinking the thing thus possessed upon the express invitation of the owner so to do * * * and the court should at least have defined possession as including control of the thing possessed with the right to dispose of it in any manner the possessor saw fit.' We did not there hold, nor have we ever held, that, when premises are searched for intoxicating liquors, any person present upon those premises would be absolved of guilt of unlawful possession if he hastened to some point on that property, where he knew or suspected intoxicants were located, and destroyed the contraband to defeat the officers in their search.

In State v. Harris, 135 Wash. 446, 237 P. 1005, 1006, when the house in which the appellant was a visitor was raided, the appellant picked up from a table in the house a bottle of liquor which he claimed he had never seen before. He testified that he did not know when he picked it up what it contained; that he picked it up and started to empty it because he thought that, 'if it should happen to be liquor,' he 'did not want to see the officers get it.' We said:

'Ownership was shown to be in a person not then present, but whether the parties involved were there with the owner's consent or were mere trespassers, the evidence is silent.

'The appellant relies for reversal on the case of State v. Jones, 114 Wash. 144, 194 P. 585. We cannot think the case in point.

There the only act shown by the person found guilty of possession was that he, while visiting at a friend's house, took and drank a glass of intoxicating liquor handed him by his host. It was said that this was not such a possession as the statute contemplates; that it was not the intention of the law 'to make a criminal of every person who might partake of a friend's hospitality.' But we think we need not question the soundness of that case in order to sustain the conviction in this one.'

It was necessary for the state to prove beyond a reasonable doubt that the liquor in question was under the control or in the custody of the defendant. The fact that it was not owned by him is immaterial. That he had knowledge, or at least he suspected, that the intoxicating liquor was...