| Wis. | Jun 21, 1926
The defendant claims that the information was defective inasmuch as it charged an unlawful possession contrary to sub. (3) of sec. 165.01, Stats., prohibiting the manufacture, sale, and the importation or exportation of intoxicating liquor, whereas under the facts and the charge of the court the only possible offense for which he could be convicted was the unlawful possession of privately manufactured distilled liquor in violation of sub. (32) (d), sec. 165.01, and that such should have been the offense and Stellite specified in the information. State
The defendant, however, failed to raise any question as to the sufficiency of such information before the jury was called or testimony taken and thereby waived any such objection as is provided in sec. 355.09 (formerly sec. 4645a). Watson v. State, ante, p. 245, 208 N.W. 897" court="Wis." date_filed="1926-05-11" href="https://app.midpage.ai/document/watson-v-state-8195067?utm_source=webapp" opinion_id="8195067">208 N. W. 897; Carver v. State, ante, p. 234, 208 N.W. 874" court="Wis." date_filed="1926-05-11" href="https://app.midpage.ai/document/carver-v-state-8195065?utm_source=webapp" opinion_id="8195065">208 N. W. 874.
Defendant’s objection, however, that there is insufficient testimony to support a conviction of his having unlawful possession of moonshine whisky is well taken. It is contended by the State that by force of sub. (28), sec. 165.01, declaring that the possession of liquor by any person without a permit, other than in his private dwelling used exclusively as such, shall be prima facie evidence of unlawful possession, there is sufficient to uphold the verdict in this case; but as has been pointed out in Endish v. State, 188 Wis. 259" court="Wis." date_filed="1925-11-17" href="https://app.midpage.ai/document/endish-v-state-8194846?utm_source=webapp" opinion_id="8194846">188 Wis. 259, 205 N. W. 822, this section is now but a rule of evidence and does not create or define an offense.
Conceding, without now determining it, that there was sufficient proof that a bottle containing whisky was found under the back steps of defendant’s house, nevertheless we do not find sufficient evidence of- the necessary conscious connection of defendant with its possession to support the verdict. State v. Buoy, 113 Or. 217" court="Or." date_filed="1924-12-10" href="https://app.midpage.ai/document/state-v-buoy-3839464?utm_source=webapp" opinion_id="3839464">113 Oreg. 217, 232 Pac. 623; State v. Cox, 91 Or. 518" court="Or." date_filed="1919-03-25" href="https://app.midpage.ai/document/state-v-cox-6906592?utm_source=webapp" opinion_id="6906592">91 Oreg. 518, 179 Pac. 575; State v. Harris, 106 Or. 211" court="Or." date_filed="1923-01-09" href="https://app.midpage.ai/document/state-v-harris-6907799?utm_source=webapp" opinion_id="6907799">106 Oreg. 211, 211 Pac. 944. There was no evidence that defendant placed it there; that he had been making unlawful sales of liquor on or prior to this evening; or any fact or circumstance indicating his conscious connection with any unlawful possession other than the mere fact that the bottle was so found so concealed outside his house and where others could have as well and as easily stored or hidden it. That he had possession or control would rest upon surmise or suspicion only, and is not a sufficient meeting of the
Upon consideration of the record, defendant’s motion to set aside the verdict and discharge him should have, been and must be now granted.
By the Court. — Judgment reversed, with directions to discharge defendant.