State v. Sawyer

• Decision Date: 30 September 1924
• Docket Number: 5503.
• Citation: 229 P. 734,71 Mont. 269
• Parties: STATE v. SAWYER.
• Court: Montana Supreme Court

229 P. 734

71 Mont. 269

STATE v. SAWYER.

No. 5503.

Supreme Court of Montana

September 30, 1924

Appeal from District Court, Gallatin County; B. B. Law, Judge.

Jerry Sawyer was convicted of unlawful possession of liquor, and from the judgment of conviction and order denying motion for new trial he appeals. Affirmed.

Warren W. Goodman and J. L. Staats, both of Bozeman, for appellant.

Wellington D. Rankin, Atty. Gen., and A. H. Angstman, Asst. Atty. Gen for the State.

CALLAWAY C.J.

Jerry Sawyer, twice having been convicted of unlawfully possessing intoxicating liquor, was again accused of that offense. The prior convictions were alleged, and these he admitted at his trial. He denied committing the instant offense, but the jury found him guilty as alleged in the information. His motion for a new trial was denied. From the judgment and order denying the motion for a new trial, he has appealed.

The facts are that on February 5, 1924, a deputy sheriff and two policemen acting under a search warrant made search of the premises occupied by defendant in the city of Bozeman. They did not find any liquor in his residence, but in an outhouse "a combination woodshed and toilet," they found six jugs, or containers, in three gunny sacks, two containers in each sack. Moonshine whisky was in the containers. There was a well-beaten path in the snow leading from the kitchen door of the residence to the outhouse, which had but one door without a lock upon it. There was no other toilet on the premises. During the morning of the day in question defendant had been working upon some logs which he intended to build into a garage. These were "right back of the toilet." He quit work about 11, went "up town," and remained there until 4 in the afternoon. Just before going to town he went into the outbuilding.

Defendant testified that to the best of his knowledge, there were not any containers or jugs in there at that time. He did not put any there, and did not authorize any one to put any there. After his return home from town, and before his arrest, he had not been to the outhouse. He denied all claim to or knowledge of the liquor, His counsel contends that if defendant was not the owner of the liquor, or if he did not put it in the building or authorize its being put there, he cannot be found guilty of unlawfully possessing the same. There was no testimony to indicate that any one else but defendant had entered the outhouse.

While the search was going on defendant engaged in conversation with one of the policemen. According to that officer's testimony defendant then said he did not own the outhouse. On the trial defendant denied that he had made any such statement.

The fact remains that moonshine whisky was found in a building of which defendant had possession and control, and which was a necessary adjunct to the house in which he lives. The legal presumption is that he had possession and control over the whisky found therein. State v. Arrigoni, 119 Wash 358, 205 P. 7, 27 A. L. R. 310; State v. Parent, 123 Wash. 624, 212 P. 1061. The presumption was rebuttable, but defendant, in the judgment of the jury, did not overcome it. The jury had the advantage of hearing the witnesses and of observing their appearance and demeanor upon the stand. The demeanor of defendant, his manner of testifying, the tone of his voice, the working of his face, the expression of his eyes, all were observed by the jury; these manifestations may have contributed largely to the...