State v. Jones

• Decision Date: 14 January 1921
• Docket Number: 16031.
• Citation: 194 P. 585,114 Wash. 144
• Court: Washington Supreme Court
• Parties: STATE v. JONES.

194 P. 585

114 Wash. 144

STATE v. JONES.

No. 16031.

Supreme Court of Washington

January 14, 1921

Department 2.

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

Benny Jones was convicted of having possession of intoxicating liquor other than alcohol, and he appeals. Reversed.

E. C Dailey and A. E. Dailey, both of Everett, for appellant.

Thos A. Stiger and Q. A. Kaune, both of Everett, for the State.

TOLMAN J.

Appellant was convicted of the crime of having in his possession intoxicating liquor other than alcohol, and sentenced to imprisonment in the county jail for a period of 30 days. Bringing the case here on appeal, he seeks a reversal because of certain instructions given to the jury by the trial court.

The case was submitted to the jury shortly after 2 o'clock p m. of the day of trial, and, not having reached a verdict at 9:50 a. m. of the following day, by direction of the trial judge the jury was brought into open court, and the record shows the following proceedings:

'The Court: Ladies and gentlemen of the jury, have you been able to agree upon a verdict?

'The Foreman: We have not.

'The Court: Do you think there is any probability of agreeing?

'Responses: I do not. It don't look that way to me. No, sir.

'The Court: Is there any question in your mind about the law in the case?

'The Foreman: I don't know whether there is a question. There are two in the minority. I don't know what is in their minds. A reasonable doubt, I suppose, and the correctness of the other ten.

'Mr. Kaune: If the court please, I move at this time that the jury be further, and a little more elaborately, instructed upon the question of what constitutes a sufficient possession to find the defendant guilty in this case; that is to say, what possession would be sufficient for them to find a defendant guilty upon a charge of this character.

'The Foreman: I think that would be a good thing.

'The Court: Ladies and gentlemen of the jury, there is just one question in this case for you to decide. You have nothing to do with the penalty that may be imposed. The Legislature of the state makes the law, and it is up to the rest of us to determine whether or not that law shall be enforced. Now, you are instructed, as a matter of law, if you believe beyond a reasonable doubt that anybody brought to the home of this defendant a bottle of whisky, and that the defendant, in company with the remainder of those prosent, sat down and drank that whisky--took a glass of whisky and drank it--he was guilty of a violation of this law, and it is your duty to find him guilty. If you do not believe that he took a glass of whisky in his hand and drank it, then I say that you should find him not guilty. The word 'possession' has a well-defined meaning, and it is this: I have in my possession a spectacle case; if I pick up a glass containing whisky I have in my possession whisky. That is all there is to this case. The jury may retire.

'Mr. Dailey: Just a minute, your honor. The defendant asks that the court instruct the jury that possession constitutes the control of as well as ownership as contemplated in the law.

'The Court: I will instruct you that, if the defendant had in his possession a glass of whisky with power to drink it and he did drink it, that he had absolute possession of it and is guilty of a violation of this law.

'Mr. Dailey: Give me an exception.

'The Court: Yes, sir; I will grant you an exception.

'(The jury retires.)

'Mr. Dailey: We take an exception to the instruction of the court and to his instructing the jury orally at the request of the prosecuting attorney without any request from the jury for further instruction.'

Within a few minutes after receiving this additional instruction the jury returned a verdict of 'guilty as charged.'

Passing the statement by the court to the effect that the Legislature makes the law, and that it is the duty of the rest of us to determine whether or not that law shall be enforced, because the court's attention was not called to its impropriety by a proper objection, still we cannot agree with the...