State v. Williams

• Decision Date: 16 February 1926
• Citation: 243 P. 563,117 Or. 238
• Parties: STATE v. WILLIAMS.
• Court: Oregon Supreme Court

243 P. 563

117 Or. 238

STATE v. WILLIAMS.

Supreme Court of Oregon

February 16, 1926

Department 2.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

Elmer Williams was indicted for the unlawful possession of intoxicating liquor. From a directed verdict of acquittal the state appeals by virtue of Or. L. § 2224--59. Affirmed.

Defendant was indicted for unlawfully having intoxicating liquor in his possession. The cause was submitted on the following stipulation:

"That the state is able to prove by competent evidence upon the trial of the above-entitled action, and the defendant admits that on the 22d day of October, 1924, in the county of Tillamook and state of Oregon, the defendant then and there being, did then and there, at the invitation of a friend, the owner and possessor of a bottle of intoxicating liquor, received from this friend said bottle of liquor for the sole purpose of taking a drink therefrom, and immediately after taking the drink therefrom the said defendant immediately returned the said bottle to the friend, who handed the same to him for the purpose of taking a drink, and that the only possession, ownership, or control exercised over said bottle of intoxicating liquor by the defendant was the possession as above stated, solely for the purpose of taking a drink of intoxicating liquor at the invitation of said friend, and for no other purpose that the said defendant was not the owner of said bottle of liquor, and had no interest therein other than as hereinbefore specified; that the evidence is undisputed that the defendant held the bottle of intoxicating liquor handed to him by his friend for the purpose of taking a drink in his hand only long enough for the purpose of taking such drink, which drink the defendant took."

On motion of the defendant, the court directed a verdict of acquittal, for the reason that the facts stipulated do not constitute the crime charged. The state, by virtue of section 2224--59, Or. L., appeals.

C. W Barrick, of Tillamook, for the State.

Walter L. Tooze, Jr., of McMinnville (Vinton & Tooze, of McMinnville, on the brief), for respondent.

BELT, J. (after stating the facts as above).

Defendant was indicted under section 2224--4, Or. L., which provides:

"Except as hereinafter provided in this amendatory act, it shall be unlawful for any person to receive, import, possess, transport, deliver, manufacture, sell, give away or barter any intoxicating liquor within this state. * * *"

Does the mere taking of a drink of intoxicating liquor, at the invitation of a friend, constitute unlawful possession of the same within the meaning of the statute? This precise question was decided adversely to the contention of the state in State v. Jones, 194 P. 585, 114 Wash. 144, wherein the court said:

"Moreover, since the state here stands upon a technical construction of the word 'possession,' we may say that possession, as the word is used in the statute, means something more than the mere taking in the hand for the purpose of immediately drinking the thing thus possessed upon the express invitation of the owner so to do. Appellant's counsel suggested the correct idea in his objection, and the court should at least have defined possession as including control of the thing possessed with the right to dispose of it in any manner the possessor saw fit. As we understand the laws of hospitality, when one is offered a glass of liquor, he has a right to accept and drink it or refuse it, and his possession, if he accepts it, is not broader than the invitation upon which he acts."

In State v. Munson, 111 Kan. 318, 206 P. 749, the court said:

"In this instance, possession may not be attributed to the defendant, because an essential element of possession is lacking. The person having custody simply handed the liquor to the defendant, to take a drink. The liquor was accepted for that purpose only. The quantity appropriated, if any, was consumed by the act of appropriation, and the remainder, if any, was not held under any continuing claim to exclusive use."

In Brooks et al. v. Commonwealth, 268 S.W. 339, 206 Ky. 720, the court stated: "It has been announced in more than one opinion of this court that one who receives a bottle, and, after taking a drink therefrom, returns it to the person from whom it is received, cannot be declared guilty of having the unlawful possession of intoxicating liquor in the meaning of any provision of the prohibition enforcement law. For in such case the possession of the liquor is deemed to be in and continue with the person carrying and controlling it and offering the drink, and its momentary possession by another for the sole purpose of taking an offered drink is not a violation of the statute. Skidmore v. Commonwealth, 264 S.W. 1053, 204 Ky. 451; Sizemore v. Commonwealth, 259 S.W. 337, 202 Ky. 273."

The question at bar was answered in Brazeale v. State, 97 So. 525, 133 Miss. 171, from which we quote:

"When arrested, the appellant was in the act of

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