Turner v. State

• Decision Date: 08 October 1965
• Citation: 394 S.W.2d 635,216 Tenn. 714,20 McCanless 714
• Parties: A. B. TURNER, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. 20 McCanless 714, 216 Tenn. 714, 394 S.W.2d 635
• Court: Tennessee Supreme Court

Page 635

394 S.W.2d 635

A. B. TURNER, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

20 McCanless 714, 216 Tenn. 714, 394 S.W.2d 635

Supreme Court of Tennessee.

Oct. 8, 1965.

M. A. Peebles, Edward C. Blank, II, MacFarland & Colley, Columbia, for plaintiff in error.

George F. McCanless, Atty. Gen., Robert F. Hedgepath, Asst. Atty. Gen., Nashville, for defendant in error.

WHITE, Justice.

Plaintiff in error was convicted of the unlawful possession of intoxicating beverages for the purpose of resale. He was fined Fifty Dollars and sentenced to serve thirty days in the County Workhouse. His motion for a new trial being overruled, he has perfected his appeal to this Court.

On May 10, 1964, police officers of the City of Columbia and Maury County, armed with a search warrant, went to an establishment on West 11th Street, a brick structure in the City of Columbia known as the 'Big Brick.' They knocked at the back door, the plaintiff in error opened the door for them and allowed them to enter. They read the warrant to him and then searched the premises, finding 280 half pints and 5 full pints of whiskey and 138 cans of beer. Some of the whiskey was located on shelves in a room that also contained a counter and a cash register, some chairs, and a cooler. In a back room was found two refrigerators stocked with beer and some whiskey in boxes. The premises showed no evidence of living accommodations.

Plaintiff in error was the only person found at this establishment. He gave no statement to the police, nor did he testify at the trial. There was no evidence as to persons having purchased alcoholic beverages at these premises or from the plaintiff in error. Plaintiff in error's only offer of proof was that the ownership of the building was in someone else and it was rented to still another person. The ownership in a third person was in fact stipulated by the parties.

The only contention of Turner is that the State failed to prove by a preponderance of the evidence that he was guilty of possession of liquor for the purpose of resale. In support of this contention, he claims that he must be allowed the benefit of the presumption that the owner or lessor of the premises is in control and possession thereof and is, therefore, in possession of the liquor. He insists that the evidence of the State was not sufficient to rebut this presumption, and that since the presumption works to establish the guilt of someone else, plaintiff in error could not be the guilty party.

The presumption that plaintiff in error bases his case on is correctly stated as being this: The owner of property is presumed to be in control and possession of the premises, and if liquor is found on the premises, it is, therefore, presumed to be in the owner's possession. Evans v. State, 209 Tenn. 453, 354 S.W.2d 263 (1962); Marie v. State, 204 Tenn. 197, 319 S.W.2d 86 (1958); Lampley v. State, 196 Tenn. 534, 268 S.W.2d 572 (1954). The presumption appears to be particularly strong where a husband is the owner of the premises and either he or his wife is the accused. Hicks v. State, 194 Tenn. 351, 250 S.W.2d 559 (1952); Crocker v. State, 148 Tenn. 106, 251 S.W. 914 (1922).

If possession and control of the premises is found to be in someone other than the owner, the presumption that the owner of the premises is in possession of the liquor never arises.

But while the fact of ownership of realty, a building or house, may raise a presumption of possession in its owner, still such presumption does not arise where there is evidence that the property may be occupied or in possession of others than the owner; and in such case, mere ownership will not support a conviction of the owner for possession of whiskey found on such property * * *. 209 Tenn. at 455, 456, 354 S.W.2d 264.

If possession and control of the liquor itself can be found to be in someone other than the owner of the premises, the presumption is completely refuted. Marie v. State, supra; Veal v. State, 196 Tenn. 443, 268 S.W.2d 345 (1954); Shelton v. State, 190 Tenn. 518, 230 S.W.2d 986 (1950). The evidence of possession in someone else must also be credible evidence. Evans v. State, 188 Tenn. 58, 216 S.W.2d 724 (1949).

In Lampley v. State, supra, the defendant owned the premises on which liquor was found, but he was not present at the time of the search. One Magee and wife were present at the time of the search and they were given a receipt for the liquor. The Court held that the ownership presumption was not rebutted by the presence of the Magees, since there was no evidence that they exercised dominion and control over the premises; owner's conviction was affirmed.

In Crocker v. State, supra, the evidence was that defendant, the wife of the owner of the premises, knew of the storage of whiskey on the premises; there apparently was no evidence that she owned it or was keeping it in stock for resale. Here it was held that the presumption that the husband, being the head of the household, was the owner of the whiskey and was possessing it for resale was not rebutted by this evidence. Conviction of the wife was reversed.

In Hicks v. State, supra, defendant husband, who owned the property, was presumed to own the liquor found thereon. This presumption was held not rebutted by the fact that his wife and another man were found on the premises at the time of the search and defendant hadn't been there for a long time.

Moving to the question of whether liquor was being held for the purpose of resale, three cases are important: In Beasley v. State, 193 Tenn. 327, 246 S.W.2d 32 (1952), it was held that the possession of six cases of beer on defendant's premises was not enough to prove intent to resell. In Farmer v. State, 196 Tenn. 253, 265 S.W.2d 555 (1954), twenty cases of beer were on the premises, some of which were in a refrigerator and a tub of ice being cooled; in addition there were persons there drinking beer, and some ten or fifteen dollars in currency and change was found near the...