96 So. 163 | Miss. | 1923
delivered the opinion of the court.
K. E. Anderson appeals from a conviction on a charge of having intoxicating liquor in his possession, under section 1, chapter 210, Laws of 1922, which provides that it shall be an offense, punishable with fine and imprisonment, to have in possession more than one quart of whisky or other intoxicating drink.
The affidavit upon which appellant .was convicted charged that he had in his possession “or under his control” more than one quart of intoxicating liquor. The only instruction given the state, of which appellant complains, told the jury to convict if they believed the defendant had the liquor in his possession “or under his control.”
We shall here quote the ■ statement of facts in the case as given by counsel for the appellant in his brief, which is as follows:
“It appears from a reading of the record that the appellant was standing at the foot of a stairway in the O’Ferrill Building in the city of Laurel, Miss., when he was approached by W. G-. Broyles, who asked the appellant if he had anything to drink. The appellant thereupon replied that he would get him a drink, and led the way up the stairs in the said building and into a vacant room in the said' building and picked up a bottle of liquor from under some papers in one corner of said room and handed it to the said Broyles, who turned it up to his head for the purpose of taking a drink, and while in the act of taking a drink, he was interfered with and dispossessed of the liquor by two officers. It seems that these officers had had information that there was whisky in the said building and had concealed themselves in a room adjoining this vacant room for the purpose of apprehending the owner or possessor of the whisky. It further appears from the testimony of the witnesses for the defendant that one Mr. Sharborough, who had an office just across the hall from this vacant room, had just been or was at the time on a drunken ‘razoo,’ and that the appellant had taken the whisky in question
The liquor seized was more than a quart. Appellant took a small empty bottle out of his pocket while Broyles was attempting to take the drink out of the large bottle.
Reversal is asked by the appellant upon the grounds that the evidence is not sufficient to show that appellant had possession or control of the bottle of liquor at the time the officers seized it; and that the indictment charged, and the instruction granted, the state erroneously told the jury that they should convict if the liquor was possessed by or was “under the control” of the appellant, whereas the statute in the case only provides that it shall be unlawful to have possession of the liquor. Complaint is also made that the court erred in refusing to permit the defendant to show that the liquor belonged to another party from whom he had taken it and placed it in the vacant room where he took his friend to get the drink.
We have carefully considered the evidence in the case and think the jury was well warranted in finding that the appellant had both the possession and control of the liquor at the time it was seized by the officers. He had placed the liquor under the papers in the corner of the vacant room and had full control and possession of it, even though the real ownership was in another person.
There is no need to discuss the question of whether there is a difference between the possession and control of an article, in this case, because the proof is uncontradicted that the appellant had the actual possession and control of the vessel of liquor at the time or before he was interrupted by the officers. Therefore the surplusage in the indictment, and instruction for the state which referred to the “control” of the liquor was not, in any event, harmful to the appellant in the trial of the case.
We do not think it was error in the court below to exclude the testimony as to where the appellant had obtained the liquor or who was the real owner of it, because
Counsel for the appellant cites and relies upon Harness v. State, 95 So. 64, recently decided by this court. This case is not in point because the possession of the liquor in that case was merely temporary, passing for an instant of time between the hands of the owner.and a third party who was invited to take a drink of it. In that case Harness was not attempting to exercise any control or dominion whatsoever over the liquor; but here, it will be readily seen, is a different case, in that the appellant was exercising both his possession and control of the liquor. The possession or control must be substantial, as it was here, and not “fleeting and shadowy,” as in the Harness ease, supra.
The judgment of the lower court is affirmed.
Affirmed.
