QUICK v. STATE

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Docket Number

No. 34683.

Attorney(S)

Harold W. Davidson, of Carthage, for appellant. The fact that the liquor was found concealed on the premises of this appellant is the only evidence against him, and this court held long ago in the case of City v. Gordon, 80 So. 785, 119 Miss. 325, that "One who has liquor in his possession without knowledge thereof as the result of some other party placing the liquor in his possession without his knowledge or consent does not violate the laws against the possession of intoxicating liquors." The second instruction for the state is calculated to lead the jury to believe that they should convict a defendant husband where liquor is found in his home, even though that liquor was put there by his wife, or some other member of his family without his knowledge or consent. In the case of Wylie v. State, 119 So. 825, 151 Miss. 897, it was held that prima facie the presumption is that it was under the control of the husband, since under our law we still recognize the husband as the head of the household. But the court further said: "This presumption of possession as between husband and wife in the home of the husband is a rebuttable presumption, not conclusive, but in this case there was no effort on the part of the appellant to rebut it." In the present case, the appellant offered considerable evidence to rebut the prima facie presumption, and since the said presumption had been rebutted by substantial testimony, the instruction, as given, without any language in it to evidence that the said presumption could be rebutted, or that it was anything other than an iron-clad presumption, was highly prejudicial to him. The instruction, in the language in which it was given, tended to lead the jury to believe that under the law they had a right to convict him for the whiskey, regardless of whether or not they might believe it was solely the whiskey of his wife, or whether or not he had any control or possession of same. Geo. H. Ethridge, Assistant Attorney-General, for appellee. The second instruction given for the state is assigned for error, and, unless it is cured by the instruction given for the defendant, it is error in my judgment. The instruction for the defendant which possibly cures this instruction is as follows: "The court instructs the jury that if you believe from the evidence or the lack of evidence that the defendant was away from home at the time the liquors in evidence were brought there, and that he had no interest in, control of, or knowledge of said whiskey, and that said whiskey was discovered and taken away before he returned home, then the defendant is not guilty of possession of said liquors, although they were found on his premises." The instruction given for the defendant seems to me squarely put the proper hypothesis to the jury on the evidence in the case, and I think it could be held that this instruction cured the error of instruction for the state, which was quoted above and in which the jury were told that the presumption raised by the facts stated hypothetically in the instruction would exist that the whiskey was the whiskey of the appellant. The general rule is that when the facts are disclosed by witnesses either for the state or the defendant and are consistent and not contradicted by facts of which the court takes judicial knowledge, or other evidence in the case, the presumption disappears, and the jury are to decide questions by the evidence and not by presumption, as has been held in this court in many cases. Hawthorne v. State, 58 Miss. 778; Houston v. State, 117 Miss. 311, 78 So. 182; Weathersby v. State, 165 Miss. 207, 147 So. 481; Wesley v. State, 153 Miss. 357, 120 So. 918; Patty v. State, 126 Miss. 94, 88 So. 498; Gray v. State, 156 Miss. 266, 130 So. 150. It appears to me, however, that the story of the wife could be reasonably discounted and the husband charged with knowledge by reason of the large quantity of liquors bought by his wife and kept in the place, which the evidence is sufficient to show was prepared by the appellant. The jury have wide latitude in determining the question of fact, and where the testimony for a defendant is by members of his family and there are reasonable grounds for believing it may be false, because of the tendency of the members of the family to testify favorably to other members of the family when criminal charges are under investigation.

Judges

Alexander, J., delivered the opinion of the court.

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QUICK v. STATE.

1. INTOXICATING LIQUORS.

Liquor found in joint possession of husband and wife is presumed to be under control of husband, but presumption is rebuttable and serves its chief purpose when it has created for the state a prima facie case.

2. INTOXICATING LIQUORS.

Where presumption that liquor found in joint possession of husband and wife is under control of husband is rebutted, the facts on which presumption is based are still available to be weighed by the jury, but the added legal force of presumption should not be projected into an instruction which not only fails to disclose that presumption may be rebutted, but too strongly intimates that state has thereby made out its case.

3. CRIMINAL LAW.

In prosecution for unlawful possession of intoxicating liquors, an instruction that if whiskey in question was in dwelling house and premises owned and occupied by defendant and wife as their home, presumption was that such whisky was under control of defendant as head of the house was ground for reversal, irrespective of other instructions given.

Alexander, J., delivered the opinion of the court.

The defendant was convicted of the unlawful possessession of intoxicating liquors. The evidence showed that a substantial quantity of liquor was found in his residence, and in a hole dug under his smokehouse. At the time such liquor was found, under authority of search warrant, the defendant was absent from home and in another state. The wife of the defendant testified that her husband knew nothing of the liquor but that she had purchased it during his absence. This was corroborated by the daughter of the defendant. There was evidence adduced by the State which would create an issue of fact upon which a jury could infer a guilty knowledge on the part of the defendant. Our concern, however, is solely with the assignment of error predicated upon the giving of the second instruction on behalf of the State. This instruction is as follows:

"The Court instructs the jury for the state that if they believe from the evidence beyond reasonable doubt, from the evidence in this case, that the whiskey testified about was in the dwelling house and the premises owned and occupied by defendant and his wife alone as their home, then the presumption of the law is that such whiskey was under the control of the husband, or the defendant in this case, as the husband is the head of the house."

It is true that liquor found in the joint possession of husband and wife is presumed to be under the control of the husband (Wylie v. State, 151 Miss. 897, 119 So. 825), yet this presumption, so called, is rebuttable and serves its chief purpose when it has created for the State a prima facie case. Once this inference is rebutted, the facts upon which the so-called presumption is based are still available to be weighed by the jury; but the added legal force which the principle invokes should not be projected into an instruction which not only fails to disclose its susceptibility to rebuttal, but too strongly intimates to the jury that the State has thereby made out its case. The giving of this instruction was error, and was not cured by any other instruction given either for the State or for the defendant.

Reversed and remanded.

QUICK v. STATE.

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