State v. Weekley

• Decision Date: 05 March 1929
• Docket Number: 1555
• Citation: 40 Wyo. 162,275 P. 122
• Parties: STATE v. WEEKLEY, ET AL. [*]
• Court: Wyoming Supreme Court

275 P. 122

40 Wyo. 162

STATE v. WEEKLEY, ET AL. ^[*]

No. 1555

Supreme Court of Wyoming

March 5, 1929

APPEAL from District Court, Natrona County; BRYANT S. CROMER, Judge.

Gordon Weekley and another were convicted of the unlawful possession of intoxicating liquor, and they appeal.

Affirmed.

Clarence G. Cypraensen, for appellant.

The court erred in denying defendants motion to quash; also, in denying defendants' joint and several motion for a severance and separate trial. It was not proven that the liquid introduced in evidence was fit for use for beverage purposes. Schraeder v. Sears, 185 N.W. 110; Hamilton v. State, (Ind.) 133 N.E. 491; Seay v State, (Okla.) 233 P. 766. The alcoholic content is immaterial unless it is shown that the liquid could be used as a beverage. Feinberg v. U. S. 2nd F.2d 955.

William O. Wilson, Attorney General; James A. Greenwood, Deputy Attorney General, and Philip S. Garbutt, Assistant Attorney General, for respondent.

But three points are argued in the brief of appellants: first that the liquid introduced in evidence was not fit for beverage purposes; second, attempt of prosecution to prove conspiracy instead of possession; third, that defendants were mere employees and the possession, if any, constituted possession by the employer. The question of guilt was for the jury. Jenkins v. State, 22 Wyo. 69; Lampitt v State, 34 Wyo. 247; Cornish v. Territory, 3 Wyo. 96; Horn v. State, 12 Wyo. 120. The attempt to prove conspiracy was necessary to lead up to and prove the joinder of defendants in the illegal possession. Separate trials are restricted to felony cases. 7534 C. S. It was proper to deny separate trial in the present case wherein a misdemeanor was charged. Johnson v. State, 211 P. 484. The case of Feinberg v. U.S. 2 Fed. (2nd) 955, cited by appellant is not in point on the facts in the present case.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

Appellants Gordon Weekley and Jake Scott, hereinafter referred to as defendants, were convicted in the District Court in Natrona County of unlawful possession of intoxicating liquor, to-wit whiskey containing one-half of one per cent or more of alcohol by volume and fit for use for beverage purposes. From the judgments entered against them, they bring the record here for review by direct appeal.

The material facts of the cause put in evidence are substantially these: Sometime after one o'clock in the morning of September 6, 1927, several law enforcement officers, including the undersheriff of Natrona County and the chief of police of the City of Casper, went in an auto to a building called the Night and Day Cafe on West A Street in said city, which conducted its business at all hours, as indicated by its name. As they approached the cafe, Denny, one of the officers, got out of the car, spoke to two boys who were standing across the street from the cafe, and inquired of them where he could buy a drink. They agreed to take him over to the cafe, and as the three entered the door, the defendant Weekley stationed there made a search of Denny's person, discovered that the latter carried a gun and immediately forbade his entrance. Thereupon the two boys fled. The officer, being already inside the door, disregarded Weekley's command and proceeded on to the inner room, being followed shortly thereafter by the rest of his party. Denny testified that as he got about half way from the door to the bar in the inside room, Weekley pressed a button in the door casing and he heard a buzzer ring behind the bar. Another of the officers testified on cross-examination that he also heard the buzzer ring. A third officer stated on the witness stand, without objection: "I am told a buzzer was there; I have heard it; never could locate it." Denny also testified that as he entered the inner room, a young man was taking a drink from a whisky glass; that the other defendant, Jake Scott, was behind the bar serving a drink from a white graniteware pitcher, and thereupon witness jumped over the bar and in doing so spilled some water from a slop bucket standing back of the bar upon the floor; that as he did this, defendant Scott poured out upon the floor a fluid which was yellowish brown in color and which smelled like whisky; on cross-examination the witness stated that a few drops of whisky were left in the pitcher. The other officers were by this time present and one handed a cloth to Denny, who mopped up the liquid on the floor, wrung out the cloth and so preserved the spilled liquid in a bottle. The testimony seems to be undisputed that the slop bucket contained lye water. When the liquid in the bottle was analyzed by an expert chemist, he found it to contain four and eight-tenths percentum pure alcohol; he also testified of his finding in the liquid some caustic in solution, that lye was a caustic, alkaline in character, and that some alkali had come in contact with the fluid; that with such alkali present, the fluid was ruined as a beverage. The defendants each took the witness stand and denied that there was any intoxicating liquor on the premises; they denied also that there was any buzzer system, and the defendant Scott stated that he had ice water in the pitcher which he spilled on the floor when officer Denny jumped over the counter. Scott also said that some of the water was left in the pitcher. Several of the officers testified that the few drops of the liquid left in the pitcher were brown in color.

It is argued to secure a reversal of the judgments that "the evidence is insufficient to show that the liquor or compound in question was capable of being used as a beverage." This contention quite overlooks the testimony in the case taken in its entirety, from which, as we think, the jury were justified in finding that the liquid poured out on the floor by the defendant Scott was whiskey, and so intoxicating liquor fit for beverage purposes.

In People v. Berglin, 309 Ill. 488, 141 N.E. 295, which was a prosecution for the possession and sale of intoxicating liquor, it appeared that officers, after knocking for admittance and before entering to search defendant's house, heard someone inside say they were pouring the stuff out. Upon gaining admittance, defendant and his wife were found there and in the bathroom were discovered two jugs and a funnel, there was the smell of whisky in the room and the jugs also smelled of whisky. The officers dipped the contents of the toilet into some bottles and subsequent analysis showed that the fluid contained nine percentum or more of alcohol. Defendant denied possessing any intoxicating liquor. In the course of an opinion which affirmed a conviction, this language was used:

"The principal error complained of in the admission of the testimony was the admission of the testimony of the chemist as to the alcohol contained in the two bottles, the contents of which were dipped from the toilet stool. It is argued that the prohibition is against any liquid containing one-half of one per cent or more of alcohol by volume which is fit for use for beverage purposes. It is insisted there was no proof the contents of the bottles were fit for use for beverage purposes, and the testimony should not have been permitted. We think this so obvious a misapprehension under the proof in this case as not to require discussion."

See also State v. Kiely, 255 S.W. 343.

It is also suggested that the defendants were merely the agents or employees of the actual proprietors of the place, who were not present, and that "if intoxicating liquor had been in the place of defendants' employers, this would not constitute possession by the said employees." Several cases are cited, but we do not deem them in point upon the facts shown by the record under consideration. In Timell v. United States, 5 Fed. (2d), C. C. A., 9th Cir. 901, where a requested instruction was held properly refused below, the reviewing court in discussing it say:

"It was clearly erroneous in assuming that one who has liquor in his possession must be acquitted of the charge of unlawful possession, if he can prove that possession was merely as the agent of another. The doctrine of agency is not applicable to such a case. State v. Caswell, 21 Tenn. 399, 2 Hum. 399; State v. Chauvin, 231 Mo. 31, 132 S.W. 243, Ann. Cas. 1912A992; State v. Bugbee, 22 Vt. 32."

In Speybroeck v. State, 198 Ind. 683, 155 N.E. 817, this language, concerning the point we are now considering, appears in the opinion:

"But in the instant case appellant exercised more than mere temporary control over the pitcher of liquor. His partially successful attempt to destroy it was an exercise of exclusive and permanent dominion and control which amounted to possession, regardless of its ownership. Under Section 2750, Burns' 1926, Section 35, Acts 1925, p. 144, c. 48, there is no enforceable property right in illicit moonshine whisky or in its container, and it might be argued that appellant, in attempting to destroy the whisky was doing a lawful thing, but, since appellant's attempt was performed in an endeavor to outwit the officers of the law, such an argument could not be seriously considered, and his act of attempted destruction only confirms the fact of his possession. If it was not his liquor, he could have kept out of trouble by leaving it alone." See also State v. Peters, 72 Mont. 12, 231 P. 392.

Other additional authorities could be cited to the same effect as those just quoted from, but we believe these are sufficient to make it clear that this contention of defendants is unsound when sought to be applied here.

At the argument of the case, the question was raised as to the status of the defendant Weekley, the man who was stationed at the door of the cafe, and who,...