State v. Michael Dropolski

• Decision Date: 08 April 1927
• Citation: 136 A. 835,100 Vt. 259
• Parties: STATE v. MICHAEL DROPOLSKI
• Court: Vermont Supreme Court

136 A. 835

100 Vt. 259

STATE v. MICHAEL DROPOLSKI

Supreme Court of Vermont

April 8, 1927

January Term, 1927.

INFORMATION for unlawful possession of intoxicating liquor. Plea, not guilty. Trial by jury in Rutland city court, C. H Kinney, City Judge, presiding. Verdict of guilty and judgment thereon. The respondent excepted. The opinion states the case.

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

Lawrence Stafford & Bloomer for the respondent.

Lawrence C. Jones, State's attorney, for the State.

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

OPINION

WATSON

The complaint in one count charges the respondent with the unlawful possession of intoxicating liquor at West Rutland, on the 21st day of November, 1925. Respondent pleaded not guilty. A trial was had by jury in the Rutland city court on January 2, 1926, resulting in a verdict of guilty.

It appears that before and on the day in question the respondent was the owner of record of a certain building situated on the east side of Main Street in West Rutland; that the rear portion of the first floor of the building he used for a pool room, and in front of that room was a room in which he sold cigars and soft drinks; while the second floor (upstairs), he occupied as his residence, access thereto being by way of an outside stairway on the south side of the building, there being no connection from the pool room or cigar room to the rooms of his residence; that at the top of those stairs is a small piazza or porch, some five or six feet wide, from which one entering the house first goes into the dining room, and from that room one turns to the right to go into the kitchen; that in the night time of the day above mentioned, P. H. Patten, Almo Franzoni, David A. Barker, and Edward Bartlett, all deputy sheriffs in and for the county of Rutland, armed with a warrant for search and seizure,--the sufficiency of which is not challenged,--went to respondent's said premises for the purpose of searching the same for intoxicating liquor, and seizing such liquors if any they should find in making the search.

It appeared that on the back side of the building and connected with it there was a sloping roof, covered with tar paper, to which roof there was a ladder leading from the ground in the rear of the building, and respondent could go from his pool room through a back door to this roof by using the ladder; that that roof was perhaps ten feet square, and had a foot and half drop, and two windows from the kitchen opened out onto it.

The State's evidence tended to show that in making the search officer Bartlett found under a burlap bag on the porch at the top of the stairs a gallon can containing alcohol. Bartlett having testified to the finding of said can with such contents at the place named, further testified that he then went into the kitchen; that the respondent at that time was in the kitchen, also his wife, and the three other officers; that Mrs. Dropolski was over near the sink, standing opposite one of the windows, and respondent was there; that when the witness came in he told the officers to look out for the roof, thinking there was something on it; that the respondent's wife, going to this window, started to scream, whereupon the witness went over to the other window to open it, and getting it part down, the respondent came over on a rush, hit the witness with his shoulder shoving him one side, went out on the roof, the witness following him out; that when the witness got on the roof, the respondent went over to the other window, picked up a couple of bottles and threw them off; that he then started to go down the ladder from the roof to the ground, and when down three or four steps, was ordered to come back by officer Franzoni who was also on the roof; that respondent came back and was placed under arrest and taken by officer Patten down to an automobile nearby; that in the vicinity of the window which respondent's wife opened, there were some bottles tipped over and a stream running down from them off the roof; that the stream was discernible on the roof by dampness there; that there was no rain that night, and the rest of the roof was dry; that the witness put his hands in the stream running off the roof, and he was positive they smelled of alcohol; that there were some other pint and half-pint bottles there, but witness did not count them; that no filled bottles were then there, but in the immediate vicinity of where the stream of dampness went down from near the window, there were two bottles so tipped down on the roof that the neck of them pointed down with the slope of the roof; that the stream on the roof led the witness to the mouth of those bottles but he did not take them.

Bartlett was alone when he found the can on the porch. In respect to the contents of the can, and as to what took place in the kitchen and on the roof out of the kitchen windows, including the actions of the respondent and his wife, the testimony of Bartlett, as related above, was corroborated in its essential particulars by the testimony of the other officers.

It appeared from the State's evidence that within two weeks after the search and seizure in question, the State's attorney of the county caused a sample of the contents of the can found on the porch and seized as already stated to be analyzed at the Vermont State Laboratory of Hygiene, which analysis showed forty-four and a half per cent. ethel (grain) alcohol by volume at sixty degrees, the rest being water. The sample so analyzed and the can were properly put in evidence at the trial and made exhibits in the case.

The respondent, being a witness in his own behalf, testified in chief that at the time of the search he had cans like the one found by the officer on the porch, which he used for turpentine or gasoline in connection with his painting business; but that he did not at any time have anything to do with the can so found by the officers, and did not have any intoxicating liquor at his house that night."Q. Did you ever see this can up there on the porch, this can with alcohol in it, or any intoxicating liquor in it, up there on your porch? A. No. I see can over there, I didn't look in, what was in it. Q. You know whether this can? A. No, I can't tell, was gallon can. Q. When did you see that? A. Day or two before, it was plain.....Q. Did you put this can or know of anybody putting this can out there under bran sack or burlap? A. No."

[1, 2] "Finding liquor in house over which respondent had control creates a rebuttable presumption that the possession was his." State v. Kichinko, 122 Wash. 251, 210 P. 364; Autrey v. State, 18 Ga.App. 13, 88 S.E. 715; People v. McLean, 210 Mich. 650, 178 N.W. 85; State v. Counts, 90 W.Va. 338, 110 S.E. 812. And, where husband and wife reside together, there is a like presumption that the intoxicating liquor in the house belongs to the husband. Isom v. State, 32 Ga.App. 75, 122 S.E. 722; People v. Lange, 224 Mich. 5, 194 N.W. 496; Thorpe, Prohibition, § 402. In State v. Kamuda, 98 Vt. 466, 129 A. 306, we stated as a general proposition "that possession alone of personal property is presumptive evidence of ownership, and with nothing to oppose it is sufficient; * * * and where the joint possession is that of husband and wife, the presumption of ownership is in favor of the husband."

Respondent says there was no evidence that he had the alcohol in the can found in the porch, or knew of its presence there, exercised any dominion over it, or in any way was the owner or possessor; that there was no act or word on his part whereby ownership or possession could be predicated. But we think from the evidence to which attention has been called, including his acts and doings, also including the legal presumptions noticed above, that the jury might fairly and reasonably infer that the can and the alcohol in it were his property and in his possession. State v. Mercier, 98 Vt. 368, 127 A. 715. See State v. Brewster, 7 Vt. 118. The same inference might well be drawn from the evidence concerning the alcohol which the State's evidence tended to show was emptied from the bottles on the roof, and the evidence was sufficient to submit to the jury on that branch of the case.

Respondent argues that his motion to set aside the verdict and in arrest of judgment should have been granted. The argument is presented as to the latter aspect only. The...