141 S.E. 633 | W. Va. | 1928
The defendant, Mary Kelly, was found guilty under an indictment charging possession of moonshine liquor and also a former conviction for a like offense. She was sentenced to serve a term of three years in the penitentiary.
The witnesses for the State as to the possession were officers *125 who testified that they raided the house of Charley Ash in the city of Moundsville; that the defendant is the sister of Ash and resided with him; that when they entered the house, she grabbed a can containing moonshine liquor off the floor and emptied it into the sink; that she also picked up a jug from the floor and ran with it into another room; that they subsequently found a jug in a wardrobe, and that it contained several spoonfuls of liquor.
Mary denied handling the can or the jug. Ash swore that the liquor in the jug and the can belonged to him, and that he emptied both before the officers entered the house. The jury quite evidently concluded that Ash, as well as the lady, didprotest too much.
The house in question, however, was rented by Ash; his family resided there; he was the legal head of that household, and therefore the law presumes that the liquor found in his house was in his exclusive possession. State v. Zink,
The presumption that Ash was in possession of the liquor is not overcome and the verdict is without support. It is therefore unnecessary to review the other errors charged by defendant. *126
The judgment of the lower court will be reversed, and the verdict set aside.
Judgment reversed; verdict set aside; new trial awarded.