Waller v. State
| Decision Date | 04 April 1942 |
| Citation | 160 S.W.2d 404,178 Tenn. 509 |
| Parties | WALLER v. STATE. |
| Court | Tennessee Supreme Court |
Error to Criminal Court, Davidson County; Chester K. Hart, Judge.
Onie Waller was convicted of unlawful possession of intoxicating liquor, and she brings error.
Affirmed.
J. W Rutherford, of Nashville, for plaintiff in error.
Nat Tipton, Asst. Atty. Gen., for the State.
This is an appeal from a conviction of unlawful possession of intoxicating liquor, with punishment fixed at a fine of $100 and thirty days in the county workhouse. It is assigned as error (1) that there is no evidence to support the verdict and (2) that the Court erred in admitting certain testimony of a witness for the State.
Officers with a search warrant entered a three room dwelling in Nashville, two bedrooms and a kitchen, and found White Corn whiskey in quantity "more than a quart and less than a gallon in a tin can, which can was found in the basket of clothes in the kitchen." The officer testified for the State that he knew this dwelling house "to be occupied by defendant, Onie Waller, and her husband, whom they did not know, nor had ever seen." He further testified that there were several people in the house and "there were some whiskey glasses on the kitchen table." The defendant was present at the time, but the record does not disclose anything with regard to the whereabouts of the husband.
The defendant testified that she was a colored woman who lived with her husband at 1409 Kirk Street in Nashville, and that they sub-rented two of the three rooms, that she occupied with her husband the front room, and an elderly woman, Dora Pearson, slept in the kitchen, and a man boarder, Monroe Fitzgerald, a hotel employee, occupied the middle room of the house. That the roomers all used the kitchen. She denied that she was the owner or the possessor of the liquor found, or knew the whiskey was in the house; she denied selling liquor and testified that she had been in the house only a few minutes having just arrived from an overnight visit with a sister-in-law. She testified that she had never been convicted of any offense; that she was assisting her husband in maintaining herself by taking in washings.
On cross-examination, she denied that, in a previous raid by the same officers, she had been caught pouring out a quantity of whiskey through a hole in the floor of the same house. She admitted that she was arrested by these officers on a former occasion, but was acquitted in the City Court.
The officer was recalled and testified that on a previous raid of this home of the defendant, he saw her pouring out whiskey through a hole in the kitchen floor and grabbed the container about the time it was emptied. He stated that she had not been convicted in the City Court. He did not say whether or not she was tried.
It is said that the evidence preponderates against the verdict. The offense was proven to have been committed, but the insistence seems to be that the evidence does not connect this defendant with the possession of the whiskey; that, although found in her kitchen, hid in a basket of clothes, she occupied the house together with her husband, and the legal presumption fixed the possession in him, as the head of the house, relying on Crocker v. State, 148 Tenn. 106, 251 S.W. 914.
We distinguished the Crocker case, which was a prosecution under Chapter 2, Acts of 1917, for keeping liquor for sale, in Johnson v. State, 152 Tenn. 184, 274 S.W. 12, and held that, "although the mere location of intoxicating liquor on premises owned by the husband and jointly inhabited by the wife would not be sufficient to support a conviction of her for possessing," the "active exercise by her of acts of possession and control" over the liquor would bring her within the condemnation of the law. That defendant, Maggie Johnson, resided with her husband on the premises where the liquor was found, but the proof showed she was at the time of the raid in manual possession and control of the liquor, and attempted to conceal it, and this proof fastened guilt of possession on her. It was said in that case that a woman, although married, especially since our emancipation legislation, is "to be regarded, in the contemplation of our criminal statutes, as an independent entity."
In the instant case, did the testimony afford circumstantial evidence to the jury of the defendant's control of the liquor found? In the first place, while it appears that her husband occupied the house with her, it was she who was present at the time, and he appeared neither at that time nor later. While technically there, he was not personally present. The liquor was found concealed in a basket of clothes in the kitchen--a place over which the woman of the house commonly and naturally more probably exercises direct control. In the next place, the liquor glasses on her kitchen table would indicate her knowledge and participation in the use being...
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... ... Huddleston, a detective, to testify to certain facts in rebuttal, because it was within the court's sound discretion, Waller v. State, 178 Tenn. 509, 160 S.W.2d 404; Colbaugh v. State, 188 Tenn. 103, 216 S.W.2d 741, 743, or (8) for refusing to grant a ... mistral because of prejudicial remarks of the court, because much that is complained of was not said in the presence of the jury. Brooks v. State, 187 Tenn. 67, 213 ... ...
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