222 N.W. 173 | Mich. | 1928
Alonzo Middleton and his wife, Carrie B., Floyd Wing and his wife, Ruth, were jointly prosecuted and convicted of having in their possession intoxicating liquor. What disposition was made of the conviction of the wives does not appear from the record. Alonzo and Floyd alone review their convictions. The home was owned by Mrs. Middleton and was occupied by her and her husband. Ruth Wing was their daughter, and defendants' testimony establishes beyond question that she and her husband with their little baby were temporarily staying with her parents and paying board while they were completing a house of their own. There was a search of the premises under a valid search warrant based on an affidavit, correct in form, sworn to by one Hagen stating that he purchased a gallon of whisky of defendant Middleton at the premises on July 3, 1927, at about 5 o'clock in the afternoon.
1. Defendants' motion to suppress was supported by several affidavits, all tending to show that none of the defendants were at the Middleton home at or about 5 o'clock of July 3d. Defendants called Hagen and examined him in open court. His testimony established, if believed, that he was mistaken in the date, and he testified that he purchased the liquor on the 2d. The showing of absence from home on this date was quite negligible. Defendants insisted in the court below, and do here, that they were justified in denying the truth of the facts alleged in the affidavit on their motion to quash on the authority *199
of People v. Burt,
2. It is next urged that the section of the act (section 3, Act No. 53, Pub. Acts 1919 [Comp. Laws Supp. 1922, § 7079(3)]) defining "intoxicating liquors," requires that the liquors be "capable of being used as a beverage" and it is insisted that there may not be a conviction unless the people establish that the liquor in question was potable. State v. Umlauf,
"There was an aunt or mother-in-law in the kitchen, then we proceeded through the dining room into the front room. There were four men in the front room drinking, but none of them were the respondents. Mr. West went upstairs and brought some intoxicating liquor down. It was delivered over to my possession then and I loaded it into my car and took it to the jail and delivered it to a chemist."
Of the liquor seized one sample disclosed an alcoholic content of 33.40 per cent., another 32.20 per cent., another 37.85 per cent. If the four men were drinking the liquor it was some evidence that it was potable; if it contained the alcoholic content testified to by the chemist, it was intoxicating. The court did not err in refusing to direct a verdict for this reason. *201
3. All the testimony on the subject showed that Mr. and Mrs. Wing were temporarily boarding with Mr. and Mrs. Middleton, paying $5 a week each for their board, and waiting until their own home was ready for occupancy. Mr. Wing worked for the Standard Oil Company. They had a room upstairs and were getting ready for bed when the raid was made. No liquor was found in their room, and there is not a word of testimony showing that they, or either of them, had anything to do with it. Defendants' counsel moved for a directed verdict for them, which motion was refused. He also preferred an appropriate request on the subject, which likewise was refused, and the court charged the jury:
"And you are further charged that it is the law that it is not necessary that the respondents actually have the intoxicating liquor (I have given that to you in another way) in question in this case in their physical possession, but if this liquor was in the home occupied by the respondents, it is, under the law, in their possession, and it is your duty to render a verdict of guilty as charged against all of said respondents, if you so find beyond a reasonable doubt."
Upon this branch of the case the trial judge was clearly in error. Earlier decisions pointed the way to a correct decision of this question, but it was directly decided inPeople v. Harter,
The conviction of defendant Middleton will be affirmed, that of defendant Wing reversed, and he will be discharged.
FEAD, C.J., and NORTH, WIEST, CLARK, McDONALD, and SHARPE, JJ., concurred. POTTER, J., did not sit. *202