Welch v. State

• Decision Date: 16 October 1926
• Citation: Welch v. State, 289 S.W. 510, 154 Tenn. 60 (Tenn. 1926)
• Parties: WELCH v. STATE.
• Court: Tennessee Supreme Court

289 S.W. 510

154 Tenn. 60

WELCH v. STATE.

Supreme Court of Tennessee.

October 16, 1926

Appeal in Error to Circuit Court, Claiborne County; W. H. Buttram Judge.

James Welch was convicted of possessing a still, and he appeals assigning error. Reversed, and remanded for new trial.

J. H S. Morison, of Cumberland Gap, and J. R. Ketron and Wm. I Davis, both of Tazewell, for plaintiff in error.

The Attorney General, for the State.

McKINNEY J.

The plaintiff in error was convicted of possessing a still, and has appealed to this court and assigned errors.

The uncontroverted facts are that the sheriff entered upon the premises of the plaintiff in error and began searching around, and, in a dugout in a lot, found a still and some beer. Said lot contained about one acre of land, was more than 300 yards from the residence of plaintiff in error, was entirely inclosed with a wire fence, and was used by the plaintiff in error for confining his stock and hogs. From this fence another fence extended beyond and inclosed the barn of plaintiff in error.

The sheriff had no search warrant, and entered said lot by letting down the bars.

The plaintiff in error did not testify, and seasonable objection was made to the testimony of the sheriff, but his testimony was admitted upon the theory set out in the following excerpt of the charge:

"I charge you, gentlemen of the jury, the opinion of the court, so far as the search warrant is concerned, means the immediate possession, like a dwelling, smokehouse, close about the dwelling, that is what the law is, and, as to search warrant, the court charges you that, if this man had a still out in the hog lot away from the house, as testified to here by this sheriff, that the sheriff would not have to have a search warrant to go out there and get this still. If you find under the circumstances he had a still, the court charges you that he is guilty, and you should so find."

Counsel for the plaintiff in error ask a reversal upon the ground that said testimony of the sheriff was incompetent, and also because that portion of the charge, quoted above, is an erroneous statement of the law.

Article 1, § 7, of the Constitution is as follows:

"That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures."

This same provision of the Constitution was contained in the Constitutions of 1834 and 1796.

In our opinion, the word "possessions" was added for a purpose, and means more than houses or mansions, something in addition thereto. We see no reason why this word should not be given the ordinary meaning ascribed to it by lexicographers. In our opinion, it refers to property, real or personal, actually possessed or occupied.

The word "possession" is thus defined in Webster's Unabridged Dictionary: "The having, holding, or detention of property in one's power or command."

"Actual possession" is thus defined in 31 Cyc. 926, to wit:

"That possession which exists where the thing is in the immediate occupancy of the party.

Applied to land, the actual exercise by the owner of the present power to deal with the estate and exclude other persons from meddling with it; and actual and continuous occupancy or exercise of full dominion, and this may be either, first, an occupancy in fact of the whole that is in possession, or second, an occupancy of part thereof in the name of the whole; a subjection to the will and dominion of the claimant, usually evidenced by occupation, by a substantial...