State v. Hood
| Decision Date | 11 April 1931 |
| Docket Number | 6781. |
| Parties | STATE v. HOOD. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Sam Hood was convicted of unlawful possession of cocaine hydrochloride, and he appeals.
Reversed with direction.
James H. Baldwin and R. Lewis Brown, both of Butte, for appellant.
L. A Foot, Atty. Gen., and S. R. Foot, Asst. Atty. Gen., for the State.
Defendant has appealed from a judgment of conviction of the crime of unlawful possession of cocaine hydrochloride and from an order denying his motion for a new trial.
Numerous assignments of error are specified, but, in the view that we take of the case, only one--the sufficiency of the evidence to justify the conviction, raised by defendant on motion for a directed verdict-- need be considered.
The evidence shows that two federal narcotic agents, Williams and Welliver, in company with McNabb and Wood, and James Brennan who was jointly charged with defendant, entered a one-story frame house at 35 West Porphyry street in Butte, on March 15, 1930. The front door of the house was locked when they arrived there. Brennan unlocked the door with a key which he had in his possession. The room into which they entered contained a bed, table, radio, bookcase, and writing stand. This room we shall hereafter refer to as the front room. Under the top of the table there was a bookrack containing a number of books. There were two rooms to the north of the front room, which were used as a kitchen and back bedroom. Between the front room and the kitchen was a door situated in the northeast corner of the front room. When the officers entered the front room, defendant was standing in the northeast corner of the room near the door leading into the kitchen and about ten feet from the table. On the table was a stocking and a cambric tobacco pouch, which, upon examination, were found to contain packages of cocaine hydrochloride. There was also some found under the base of a plaster of Paris lamp which stood on the radio situated on the west side of the room. A dictionary, which was lying on the bookrack under the top of the table, also had packages of cocaine hydrochloride concealed in the binding. On the flyleaf of the book were printed in pencil the words "Property of Samuel C. Hood." It was not shown by whom the words were printed.
There is evidence that, when the officers entered the room, defendant rushed to the kitchen stove and made motions tending to indicate that he threw something in the fire box. When asked by one of the officers what he threw in the stove, he replied, "A peach stone." The officer, though admitting that he did not make a careful examination to see whether there was a peach stone in the fire, said there was none there that he could see.
Elizabeth M. Gill testified that she owned the house situated on 35 West Porphyry street on March 15, 1930, and that it had not been rented to defendant, and that he was not a tenant of hers or in possession of the premises with her knowledge. There is no direct evidence that defendant ever had possession of any of the packages of cocaine hydrochloride found in the room.
The question before us is whether the foregoing evidence is sufficient to justify defendant's conviction. To justify a conviction of unlawful possession of a prohibited article, there must be proof of actual control and management of the thing prohibited. 33 C.J. 585.
Counsel for the state, in reliance upon the case of State v Jacobson, 77 Mont. 57, 249 P. 571, and the cases therein cited, contend that, since defendant was in possession of the room, the presumption obtains that he also had possession of the cocaine. But that case cannot govern this, for here there is no evidence that defendant was in the possession or control of the building or room in which the cocaine was found. The evidence shows that he was not a tenant and not the owner of the building. That Brennan was a tenant may be inferred from the fact that he had a...
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