State v. Johnson

Decision Date24 March 1924
Docket Number18320.
Citation224 P. 602,129 Wash. 62
PartiesSTATE v. JOHNSON.
CourtWashington Supreme Court

Department 2.

Appeal from Superior Court, Benton County; Truax, Judge.

Glenn Johnson was convicted of having intoxicating liquor in his possession, and he appeals. Affirmed.

M. M Moulton, of Kennewick, and Andrew Brown, of Prosser, for appellant.

Geo. O Beardsley and Campbell W. Bushnell, both of Prosser, for the State.

PEMBERTON J.

The appellant was found guilty by a jury of the crime of having intoxicating liquor in his possession. From the judgment and sentence rendered against him this appeal is taken. Twenty-one assignments of error are claimed.

The facts relied upon by the state to support the verdict are as follows: The appellant, together with two companions, Ehrke and Thornhill, at about 1:30 o'clock in the morning of June 3, 1923, was seen by a deputy sheriff leaving the Commercial Café in Kennewick, Wash., carrying something to his automobile inclosed in a paper sack. Soon thereafter the automobile was driven and stopped near the O W. depot. The deputy sheriff was the town marshal following the automobile arrived at this time and examined the paper sack, which was found to be empty. The appellant with his companions drove from the depot, and the officers went back to the city, but soon returned to the depot and at about 2 o'clock discovered a gallon jar and quart jar of liquor located between the right of way fence and the track near the depot. These officers remained in hiding for some time to see if some one would not come for the liquor. No one appearing it was arranged for the night marshal to appear again on the public street while the deputy sheriff was to remain in hiding. They moved the liquor from its location about 100 feet along the right of way near a freight shed, and near this shed the deputy sheriff was hidden. The appellant and his companions continued to drive around through the town watching to see when the officers would leave the vicinity of the depot. Soon after the night marshal appeared on the street the car of appellant proceeded to the depot. Alighting from the car, appellant crossed the railroad tracks going directly to the exact spot where the liquor had originally been found. Not finding it he proceeded along the right of way until he reached the liquor. He stooped over and placed his hands on the jugs in the act of picking them up when the deputy sheriff ordered him to put up his hands. The appellant immediately undertook to destroy the jugs by kicking them. This occurred at about 3 o'clock in the morning. It is claimed by the appellant that after leaving the café while driving near the depot they saw a man carrying a container under his arm proceeding toward the O. W. depot. They drove to the south side of the depot while the man carrying the container passed around to the east. They believed that this container held liquor, and it was their intention to find and drink portions of it. They did not desire to make the investigation while the officers were present, and as soon as they believed that the officers had left the vicinity of the depot they returned to secure the liquor.

Many of the assignments of error are upon the introduction of the testimony, others upon the refusal to grant a directed verdict and a new trial, and others upon the refusal to give or the giving of instructions to the jury.

The appellant complains that the court erred in giving instructions 4, 5, and 6 and in refusing to give the following instruction:

'You are instructed that before you can find the defendant guilty in this case you must find that the defendant had in his possession, as charged in the complaint, intoxicating liquor, other than alcohol, and that the same was held and kept by the defendant for the purpose of unlawful sale or disposition, and in this connection you are instructed that possession of such intoxicating liquor and proof of the possession thereof would be prima facie evidence that said liquor was so held and kept by the defendant for purposes of unlawful sale or disposition. Such prima facie evidence, however, is subject to explanation or rebuttal by the defendant, and if you believe from the evidence in this case that the defendant did not have intoxicating liquor, other than alcohol, in his possession as alleged in the complaint, and as defined in these instructions, for the purpose of unlawful sale or disposition thereof, then your verdict must be for the defendant.'

It is the contention of appellant that the mere possession of intoxicating liquor does not constitute a crime. Section 11, c. 19, Laws of 1917, provides:

'It shall be unlawful for any person other than a regularly ordained clergyman, priest
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3 cases
  • State v. Walcott, 38975
    • United States
    • Washington Supreme Court
    • December 28, 1967
    ...possessed. See State v. Spillman, 110 Wash. 662, 188 P. 915 (1920); State v. Parent, 123 Wash. 624, 212 P. 1061 (1923); State v. Johnson,129 Wash. 62, 224 P. 602 (1924). The defendant contends the court erred in failing to give his proposed instructions to the effect that the state must pro......
  • State v. Hornaday, 5944-III-8
    • United States
    • Washington Court of Appeals
    • August 2, 1984
    ...by drinking or otherwise." The language, "possession of intoxicating liquor" is "clear, plain and unambiguous," State v. Johnson, 129 Wash. 62, 66, 224 P. 602 (1924), and includes constructive as well as actual possession. Constructive possession of liquor denotes control of the substance. ......
  • State v. Hornaday
    • United States
    • Washington Supreme Court
    • January 16, 1986
    ...the term "possession". However, the language "possession of intoxicating liquor" is "clear, plain and unambiguous," State v. Johnson, 129 Wash. 62, 66, 224 P. 602 (1924). A defendant "possesses" a controlled substance when the defendant knows of the substance's presence, the substance is im......

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