State v. AplinState v. Aplin
- Reporters:
- , ,
- Before:
- Fullerton
Thе appellant, Aplin, was convicted upon an information charging him with unlawfully *37having in his possession intoxiсating liquors, and with having been theretofore convicted of a similar offense.
In the court below, thе appellant moved to strike from the information the allegation charging a prior conviction, and the order of the court denying the motion constitutes the first error assigned. The question, however, does not require discussion here. It was before us in the cases of State v. Dericho, 107 Wash. 468, 182 Pac. 597, and State v. Emonds, 107 Wash. 688, 182 Pac. 584, where we held contrary to thе appellant’s contentions, and we are satisfied with the rule as there announced.
The appellant also moved for a new trial, basing his motion on the insufficiency of the evidence to sustаin a conviction. The trial court denied the motion, and its ruling in this behalf presents the serious question involvеd. The evidence on the part of the state was, in effect, this: A certain lot in the city of Walla Wаlla, on which there is a dwelling house, was owned by one Brooks. Brooks had leased the premises to a Mrs. Wright, who occupied it with her family, consisting of four minor children. The appellant was rooming in the house and boarding with Mrs. Wright, paying to her a consideration for the room and the board furnished him. On ,the evening of April 30, 1921, the sheriff of Walla Walla county procured a search warrant authorizing him to search thе premises for intoxicating liquor. The sheriff, accompanied by two deputies, went to the house tо make the search, reaching the place at some time between nine and ten o’clock at night. On reaching the house they gave an alarm at the door, which the appellant answеred. The officers told the appellant who they were and what their purpose was in visiting the premises, and he let them into the house, when a search of it was made. The *38officers did not find any intoxicating liquors in the house, and the search was continued into the yard surrounding it. At the northeast corner of the lot was a building used as a chicken house, and on searching this building the sheriff discovered a hole in the floоr covered with straw near the lot line, in which hole he found a quart bottle of intoxicating liquor. Further search uncovered two similar bottles near the location of the first bottle, which had been plaсed under the sill of the chicken house which marked the boundary line of the lot. The seals upon the bоttles had not been broken. The state offered no other evidence tending to show that the liquor wаs the property of, or was in the possession of, the appellant.
On the other side, the appellant denied that the liquor was his property, and denied having any knowledge concerning it. Mrs. Wright testified that, on the morning after the search, she examined the place where the liquor was found, both frоm the premises occupied by her and from the adjoining premises, and found that the floor of the аdjoining building, which was used as a woodshed, had been disturbed near the place where the liquor was found; some of the boards of the floor being “torn up and loose.”
It is our opinion that a verdict of guilty founded upon evidence as indirect as the evidence here is should not be permitted to stand. It is not necessary, of course, that the state show an actual personal possession of intoxiсating liquors by the person accused in order to maintain a conviction. Possession may be actual or constructive, and one who has ownership of, or dominion and control over proрerty, with the right to its actual possession, is deemed in law to have it in possession. So it would follow that one who deposits property in a place of concealment has legal *39possеssion of it. But’ it seems to us that the evidence here falls far short of showing a possession of the liquor hеre in question by the appellant, either actual or constructive. That he had the actual рossession of it, there is no showing at all; and that he had constructive possession of it rests upon thе remote inference arising from the fact that he was a roomer and boarder at the housе on the lot where the liquor was found and had an opportunity to place it there. But the opportunity was not the appellant’s alone. Others had access to the place, and seemingly, as the record stands, there is no more reason to suspect that the liquor was in the possessiоn of the appellant than there is to suspect that it was in the possession of Brooks, the ownеr of the property, or Mrs. Wright, its lessee, or perhaps the neighbors living on the adjoining property. It is true it was shown that the appellant had been convicted of having liquor in his possession at a priоr time, but this, while proper to be considered as bearing upon his credibility as a witness, was not evidence tending to show his guilt of the crime here charged against him.
The judgment is reversed, and the cause remanded with instructions to discharge the defendant.
Main, C. J., Mitchell, Pemberton, and Bridges, JJ., concur.