State v. Kempesti

• Decision Date: 01 October 1929
• Parties: STATE v. VALENTI KEMPESTI
• Court: Vermont Supreme Court

147 A. 273

102 Vt. 152

STATE v. VALENTI KEMPESTI

Supreme Court of Vermont

October 1, 1929

May Term, 1929.

Intoxicating Liquors---Jury Question---Presumption as to Possession and Ownership---Admissibility of Evidence of Previous Purchases at Respondent's House---Acts and Conduct of Accused and Family When Premises Searched and Liquor Found---Sufficiency of Evidence To Make Jury Question as to Illegality of Possession---Liberal Construction Acts 1921, No 204---Sufficiency of Evidence To Justify Inference That Acts of Respondent's Wife Were as his Agent---Insufficiency of Exception Because Too Broad.

1. In prosecution for possession of intoxicating liquor in violation of General Laws, Ch. 279, as amended by Acts 1921 No. 204, held that evidence made jury question as to whether at time officers went to search respondent's house liquid found in toilet bowl therein containing cedar oil and alcohol was intoxicating liquor fit for beverage purposes before oil of cedar was put into it, if it was done as State's evidence indicated by respondent's daughter while officers were being delayed by respondent's wife and daughter in making search of premises.

2. Finding of liquor in house over which respondent, in prosecution for illegal possession of liquor, had control creates a rebuttable presumption that possession of liquor was his.

3. Where husband and wife reside together, there is a rebuttable presumption that intoxicating liquor in house belongs to husband, and where the joint possession is that of husband and wife, presumption of ownership is in favor of husband.

4. In prosecution for possession of intoxicating liquor in violation of General Laws, Ch. 279, as amended by Acts 1921, No. 204, testimony of witness as to previous purchases of alcohol made by him at respondent's house, either from respondent or his wife, or from respondent at his shoe shop standing next to house, at which times respondent would go out of shop toward house and return with liquor, held to show respondent's relation to house, and to possession and sale of liquor therein.

5. In such prosecution, evidence of what took place at respondent's house when visited by officers a year and a half before trial of case at bar, as to being refused admission for a time, actions of respondent, his wife, and daughter on that occasion, and detection of odor of alcohol in the bathroom to which either wife or daughter had gone when officers got into house, held admissible to show respondent's relation to house, and to possession and sale of liquor therein.

6. In such prosecution, action of respondent, wife, and daughter, when respondent's house was visited by officers on a previous occasion, and evidence as to sales of liquor therein and in shop adjoining, either by respondent or his wife, held to tend to characterize place as one where business of keeping and selling intoxicating liquor for beverage purposes was carried on by respondent.

7. In such prosecution, evidence held to make question for jury whether respondent had illegal possession of intoxicating liquor.

8. The liberal construction required by Acts 1921, No. 204, 4, to be given to all provisions of the act prohibiting manufacture, sale, transportation, possession and beverage use of intoxicating liquor, to the end named, is in derogation of strict rules of common law generally exacted from public authorities in enforcement of criminal law, for less precise rules usually applied in civil matters.

9. In prosecution for possession of intoxicating liquor in violation of General Laws, Ch. 279, as amended by Acts 1921, No. 204, presumptions and evidence being that intoxicating liquor found during search of respondent's premises, was owned by, and in possession of, respondent in his house, occupied by himself and wife together as their common residence over which he had control, acts and conduct of wife when handling such liquor or in connection therewith, whether in his presence or absence, held such that jury might fairly and reasonably infer that her acts and conduct in relation thereto were as his agent, for which he was criminally responsible.

10. In such prosecution, exception to instruction relating to effect of respondent being found to have had possession of intoxicating liquor, with no evidence in case to show such possession to be lawful, to the effect that under evidence he had no right to possess it under any consideration, on ground that instruction left out of consideration by jury fact that liquor so found might not be fit for beverage purposes, but might be such thing as "alco-rub," or a dozen other things that contain alcohol and do not constitute violation of law, held that basis of exception was too broad, there having been no evidence introduced as to "alco-rub," or other things respondent's attorney had in mind, and none of them being within proper knowledge of jurors.

INFORMATION for unlawful possession of intoxicating liquor, contrary to provisions of General Laws, Ch. 279, as amended by Acts 1921, No. 204. Plea, not guilty. Trial by jury at the September Term, 1928, Rutland County, Thompson, J., presiding. Verdict and judgment of guilty, and sentence thereon. The respondent excepted. The opinion states the case. No error.

Judgment that there was no error in the proceedings and respondent takes nothing by his exceptions. Let execution be done.

Novak, Bloomer & Spero for the respondent.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

WATSON

Located adjacent to respondent's said dwelling house, was a shoe shop in which he worked. In the daytime of the 5th of September, 1928, Almo B. Franzoni, a deputy sheriff in and for Rutland County, armed with a search warrant for such purpose, and accompanied by one Willis, also a deputy sheriff of said county, and by one Mack, a United States prohibition agent, searched said house for intoxicating liquor. At the time of the search, respondent was not present in the house. He was working in the shoe shop, and there was no direct evidence in the case that he then knew the search was being made. After the search was completed, the officers went to the shop and arrested the respondent.

The testimony on the part of the State, given by the three officers, tended to show that by authority of a search warrant (properly issued) they went to the side door of respondent's house and, finding the screen door locked and the wooden door part way open, they told Mrs. Kempesti (the wife of the respondent) who with their daughter, Felicia Kempesti, eleven years old, was in the house just through the side door, that they were officers and had a search warrant for the house; that when this was thus made known to Mrs. Kempesti, she said something to the girl, which the officer could not understand, and the girl started to run through the dining room toward the bathroom, and Mrs Kempesti shut and locked the inside door and followed the girl, disappearing from sight of the officers; that after being gone "just for a minute," Mrs. Kempesti came back and unlocked the door; that the officers then went into the house and directly to the bathroom; that on getting to the bathroom they found the door thereto locked, but heard something inside the bathroom like running water, and like the pouring of something from one basin into another; that "after a minute" the same girl unlocked the door, she being inside of bathroom, and the three officers went in; that each of the three officers detected the smell of alcohol in the bathroom and they looked about to see if they could find it. In that room they found a porcelain kettle, a funnel, one-half pint bottle, and a cedar oil can; that in the toilet bowl there was liquid which had odor of cedar oil and alcohol, and the contents of the toilet bowl were mopped up and placed in a bottle; in which bottle said contents were then by Officer Franzoni turned over to the State's attorney, and by the latter expressed to the State Laboratory of Hygiene for analysis, and as such it was introduced in evidence as an...