State v. Scovill
| Decision Date | 11 February 1929 |
| Docket Number | No. 16470.,16470. |
| Parties | STATE v. SCOVILL. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Caldwell County; Ira D. Beals, Judge.
"Not to be officially published."
Henry Scovill was convicted of possessing whisky, and he appeals. Reversed and remanded.
O. J. Adams, of Kingston, for appellant. Thos. L. Leigh, of Kingston, for the State.
Appellant was charged by information with the unlawful possession of one pint of intoxicating liquor, "to wit; one pint of whisky." The state's evidence was to the effect that two deputy sheriffs found the defendant asleep on a pile of old straw in a shed about one-half mile east of the city of Hamilton. About three or four feet from the defendant, partly covered by straw, the officers found a jug containing a liquid. When the officers came into the shed the defendant woke up, and the officers took possession of the jug and arrested the defendant. The defendant was intoxicated. The pile of straw was covered with dust and dirt, and, from this, together with the appearance of the straw, the officers testified that they could tell the straw had been there for a long time. The dust and dirt had been disturbed where the jug was found partly buried in the straw. This shed was about 100 yards back from the public road, and was appurtenant to an uninhabited farmhouse. The farm belonged to the "Clark estate." One witness testified that he believed some man had rented the pasture on the farm, and had grazed some horses on the pasture. The jug and its contents were produced at the trial. The deputy sheriffs who made the arrest testified that the contents looked and smelled like corn whisky. The sheriff testified that he had tasted it, and that it was corn whisky.
Immediately after the noon recess the state offered two witnesses for the purpose of proving the nature of the contents of the jug. The names of these two witnesses had not been indorsed upon the information, and the defendant objected to the admission of any evidence given by these two witnesses, upon the ground that their names had not been indorsed upon the information. During the discussion of the objection the defendant's attorney stated that, "if there were to be any witnesses, defendant had a right to know who they were beforehand." The prosecuting attorney stated that he first learned that these men were to be witnesses on the day of the trial, and that they had been subpœnaed as witnesses since noon. The court overruled the objection of the defendant, and exceptions were duly saved. Defendant's counsel then stated that, if the witnesses were to testify, he desired to have time in which to prepare to meet their testimony, and asked the court to give him time to make a formal application for continuance. This application was overruled by the court, and exceptions were saved. Both of these witnesses testified that they were familiar with whisky. One of them testified that he had worked in a distillery in Kentucky before the manufacture of whisky had become unlawful. They testified that they had tested the contents of the jug by smelling, tasting, and by setting fire to the liquid. However, these witnesses were not so unequivocal in their testimony as the officers had been. One testified that he believed the liquid in the jug was whisky mixed with some other substance. The other testified he "would say it was whisky of some kind, alcohol, at least." The liquid was then presented to the jury for examination. Either because of the uncertainty of the testimony of one of the witnesses for the state, or because of something about the appearance of the liquid apparent to the trial court and the prosecuting attorney, which could be observed by the jury when it examined the liquid, the court instructed the jury as follows:
The court also gave the following instruction:
Defendant was convicted and has appealed.
Appellant contends that there was not sufficient evidence in this case to support a conviction, for the reason that there was no substantial evidence that defendant possessed the intoxicating liquor in question. It is the law in this state that, when intoxicating liquor is found within a building which is occupied and controlled by the defendant, then he is presumed to be in possession of everything within the building, including the liquor. There are cases which hold that there is a presumption that defendant is in possession of liquor when it is found upon his land in such immediate vicinity to his residence as to justify the inference that the liquor would not have been at the place where it was found without his knowledge and consent. However, there is no presumption that liquor found on any and every part of a farm is in the possession of the one who is in possession of the farm. The possession of outlying lands is technical and theoretical in its nature. It does not give the owner or the lessee that immediate and exclusive control which he has over his residence and the outbuildings adjacent and appurtenant thereto. The evidence in this case shows that defendant was found in an intoxicated condition, sleeping by the side of a jug of whisky, in an unused shed, appurtenant to a vacant farmhouse. Obviously, there could be no presumption that the liquor was in the possession of the owner of the shed, nor could it be presumed that it was in the possession of the lessee of the pasture. The liquor was found out in the country at a place where no one was present but the defendant. It was in his sight and within his reach. He had had access to whisky very recently; because he was intoxicated. He was not near to any other place where whisky was likely to be obtained. We think the jury could properly infer that the defendant had exercised dominion over the whisky.
In the case of State v. Kiely (Mo. App.) 255 S. W. 343, the evidence showed that police officers heard a crash as though someone had broken a bottle. They walked to an automobile from which the sound came and saw the defendant run from the vicinity of the car across the street and into a restaurant. No one other than the defendant was in the street. The two officers found a broken fruit jar on the sidewalk and the remaining contents were determined to be liquor. The court held that, because the defendant was the only person present at the time the jar fell, and that he ran upon the discovery of the presence of the officers, the jury could infer that the liquor was in defendant's possession prior to its fall.
In the case of State v. Martin (Mo. App.) 285 S. W. 777, the evidence of an officer was objected to upon the ground that he had obtained evidence by an arrest without a warrant. The question presented was whether or not the crime had been committed in the presence of the officer. It was shown that when the officer appeared the defendant was sitting at a table in an intoxicated condition, and a bottle of whisky was sitting on the table. It was held that this was sufficient to warrant the officer in making the arrest.
In the case of State v. Roten (Mo. App.) 266 S. W. 994, officers told the occupant of an automobile that they intended to search his car, whereupon he started his autombile and drove away. As the car rolled away they saw an object thrown out of defendant's car on the right side of the road, but owing to darkness they could not see what it was. Later, after an unsuccessful pursuit, the officers came back and found a jug of wine at the place where they had seen the object thrown from the car. The court held that this made a prima facie case of possession and transportation.
In the case of State v. Heimbaugh (Mo. App.) 249 S. W. 445, it was held that the state produced sufficient evidence to take the case to the jury under a charge that defendant possessed a still, where it was shown that defendant was near a still at the time of the raid; that he vanished in the brush from where shots were then fired; and that his wife entreated him not to shoot, and a voice, recognized as his, replied; and empty shells were found in the vicinity the next day. In this case the defendant was not the owner of the land upon which the still was located, but the inference of his possession rested upon his close proximity to the still, together with his suspicious acts.
We have carefully examined the authorities cited by the appellant, and we find that they do not militate against the views herein expressed.
In the case of State v. Clark, 220 Mo. App. 1308, 289 S. W. 963, it was held that...
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