State v. Williams

• Decision Date: 07 November 1931
• Docket Number: 30150.
• Parties: STATE v. WILLIAMS. [*]
• Court: Kansas Supreme Court

4 P.2d 453

134 Kan. 125

STATE v. WILLIAMS. ^[*]

No. 30150.

Supreme Court of Kansas

November 7, 1931

Syllabus by the Court.

Evidence as to defendant's entry into field to place where liquor was located held sufficient to sustain conviction for possessing liquor.

Evidence of defendant's entry into place in field where liquor was located held insufficient to sustain conviction for transporting liquor and maintaining nuisance.

The evidence is examined, and it is held sufficient to sustain a conviction for possession of intoxicating liquor, but insufficient to sustain a conviction of transportation and maintaining a nuisance.

Appeal from District Court, Mitchell County; William R. Mitchell Judge.

Harry Williams was convicted of violating the intoxicating liquor law, and he appeals.

Affirmed in part, and reversed in part with instructions.

R. L Hamilton, of Beloit, for appellant.

Roland Boynton, Atty. Gen., R. O. Mason, Asst. Atty. Gen., and Harold N. Jordan, Co. Atty., of Beloit, for the State.

SMITH J.

Defendant was convicted of violating the intoxicating liquor law. He appeals.

The information was in five counts. Two of these counts were dismissed on motion. He was convicted of possession of intoxicating liquor in the first count, transportation on the second, and maintaining a nuisance on the fourth.

A farmer boy found a sack of liquor some distance from the public highway in a field of kaffir corn, which he was cutting. The sheriff was notified and came out that night. He, together with one other, concealed themselves and watched the liquor. Just about dark defendant drove up in his car and stopped. Defendant got out and entered the field. As witnesses testified, he zigzagged around in the field, and when he was at a point some forty feet from the liquor he ran into the sheriff. When he saw the sheriff, according to the sheriff's evidence, he said, "It looks like somebody was tipped off." Defendant testified that what he said was, "It looks like somebody has been tipped off." There were two tall sunflowers about equal distances from the liquor. Defendant claimed that he had stopped the car and gone into the field to attend to a call of nature. His belt was unfastened when the sheriff arrested him. The night of the arrest the wife of defendant was interviewed by the county attorney in the presence of the sheriff. She made some statements that differed from those made by appellant relative to who was driving and whether the car lights were turned on. The sheriff was permitted to testify as to what these statements of appellant's wife were over the objection of appellant.

Appellant urges that there was error in the trial, in that the evidence introduced was not sufficient to sustain the charges. We have reached the conclusion that as to all but the first count the contention should be sustained.

As to the counts charging a nuisance and transportation, taking all the state's evidence as true, there are two conclusions to which these circumstances might lead us: One is that the liquor was brought there by some one else for defendant and he was coming there to get it. Under that theory he would not be guilty of transportation or nuisance. On the other hand he could have brought the liquor and left it there himself and was coming back to get all, or part of it; under that theory he would be guilty of transportation and a nuisance. The trouble is to tell which of these conclusions is the correct one. Any attempt to say one or the other is the true state of affairs is speculation.

As to the possession count, under either one of the theories, all the elements of possession are there, that is, the mental attitude of the defendant, the right to possess, to appropriate to oneself, and the effective realization of...