United States v. Burch

Citation313 F.2d 628
Decision Date23 February 1963
Docket NumberNo. 14916.,14916.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Edward BURCH, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Herbert A. Adrine, Cleveland, Ohio, for appellant.

Gerald J. Celebrezze, Asst. U. S. Atty., Cleveland, Ohio, Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, on brief, for appellee.

Before CECIL, Chief Judge, and MILLER and O'SULLIVAN, Circuit Judges.

PER CURIAM.

Appellant, in a trial to the Court without a jury, was found guilty under a two-count indictment charging (1) unlawful possession of an unregistered still, and (2) unlawful possession of nontaxpaid distilled spirits, in violation of Sections 5601(a) (1), 5205(a) (2) and 5604(a) (1), Title 26, United States Code. He received a sentence of eighteen months under each count, to be served concurrently.

The Government introduced evidence showing the following.

An unregistered still and a quantity of nontaxpaid distilled spirits were found by officers in the attic portion of a two and one-half frame building, the ground floor of which was occupied by parties other than the appellant, with the second floor being occupied by appellant. The only means of access to the attic was through a door located on the second floor, which appellant closed and which automatically locked as the officers reached the second floor. It was forced open later. No one was in the attic at the time. Gas burners under the still were warm, some of the mash was quite warm and there was a twenty-gallon tub sitting near the still which contained almost scalding hot water. The gas line which was used to supply gas for heating the still was connected to the stove in the appellant's kitchen on the second floor. Appellant's shoes were damp and smelled of mash.

Appellant contends that the evidence was insufficient to establish possession by him of the still and the distilled spirits, in that mere presence at a still is not enough in itself to constitute possession. The District Judge expressed the view that the law recognizes two kinds of possession: actual possession and constructive possession; that a person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. Applying this definition of possession, he found the appellant guilty.

We agree with the ruling....

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25 cases
  • United States v. Craven
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 8 Mayo 1973
    ...control over an object, either directly or through others. United States v. Viraglia, 441 F.2d 1295 (5th Cir. 1971); United States v. Burch, 313 F.2d 628 (6th Cir. 1963). Both actual possession and constructive possession may be proved by direct or circumstantial evidence. It is not necessa......
  • People v. Hill
    • United States
    • Michigan Supreme Court
    • 27 Septiembre 1989
    ...and the other begins." Federal courts consistently have recognized two types of possession, actual and constructive. United States v. Burch, 313 F.2d 628 (CA 6, 1963); United States v. LaGue, 472 F.2d 151 (CA 9, 1973). Although not in actual possession, a person has constructive possession ......
  • Langel v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 8 Diciembre 1971
    ...Cir. 1970), "possession may be constructive as well as actual. Mack v. United States 326 F.2d 481 (8th Cir.), supra; United States v. Burch, 313 F.2d 628 (6th Cir. 1963)." In this case there is evidence that the defendants planned to "hit" JRS that evening; that Gray drove two of them to th......
  • People Of The State Of Mich. v. Flick
    • United States
    • Michigan Supreme Court
    • 27 Julio 2010
    ...a thing, either directly or through another person or persons....' ” Hill, 433 Mich. at 470, 446 N.W.2d 140, quoting United States v. Burch, 313 F.2d 628, 629 (C.A.6, 1963). Dominion or control over the object need not be exclusive. People v. Konrad, 449 Mich. 263, 271, 536 N.W.2d 517 (1995......
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