Dеfendant Avas convicted on a charge of possessing intoxicating liquor contrary to section 6588, Revised Statutes 1919, as amended by the LaAA's оf Missouri 1921, page 414, section 6588, and his punishment AA'as assessed at a fine of tAvo hundred dollars ($200). Defendant has appealed from the judgment of conviction. The point before this court for review is in relation to the sufficiency of the evidence to sustain the judgment. The evidence is very brief on the part, of the State, consisting only of the testimony of one AA’itness, Monroe "Winters, Constable of Pascóla ToAAmship. His testimony Avas to the еffect that on the 20th day of November, 1925, he arrived in Pascóla at three o’clock in the afternoon and when *150 coming from the train saw defеndant and another man standing by a Ford roadster in which were three men and a woman; that he saw defendant with a half pint bottle of “Moonshine whiskey” in his hand and, as he testified, “in the act of drinking;” that defendant had the bottle up to his head and that the witness “walked up to the car” and saw defendant reach back and come out with a half pint in his hand and that he ran to the defendant, but when he got there defendant handed the bottle to Tеd Hodge, another man in the car, and the witness then grabbed the whiskey from his hands. He arrested defendant, the three men and the woman in the car аnd another man who at the time ran away. This witness also testified that the man who ran broke some bottles on the sidewalk. It further appears that Ted Hodge, who had the boltle in his hand when the Constable arrested him, pleaded guilty and paid a fine of two hundred dollars ($200) for possessing the liquor. The Constable also testified that Peck Lane had the bottle in his hand “just long enough to take a drink and hand it back;” and that Ted Hodge said the whiskey was his. Thе other four or five persons present at the time the officer seized the bottle of whiskey all testified that the whiskey did not belong to the defendant but that it belonged to Ted Hodge, who had pleaded guilty. Some evidence was offered by the State tending to impeach these witnessеs. The bottle containing the liquor was offered in evidence and shown to be moonshine whiskey.
The court in its instruction to the jury defined “possession” as meaning “to have control of and dominion over.” The term “possession” as used in the statute heretofore referred to has never bеen clearly defined by any decision of the appellate courts of this State in so far as our search has enabled us to discover. In State v. Lumfrunk,
Webster’s International Dictionary gives the legal definition оf possession as ‘1 One who has physical control of the thing and holds it for himself.” All the definitions contained in recognized Law Dictionaries indicаte that the element of custody and control is involved in the term “possession.”
We have found no ease either in this State or in any of our sister states which holds that a “fleeting and shadowy” possession, such as is experienced' in the mere act of taking a drink from a bottle of whiskey, is suсh possession as is contemplated in the criminal statute relative to the possession of intoxicating liquor. In the case of Skidmore v. Cоmmonwealth (Ky.),
Whilе defendant in the case at bar denied that he at any time had the bottle containing the Avhiskey in his hand and further denied that he owned or possеssed the same or that he had taken a drink therefrom, we must accept as an established fact, under the evidence, that he did have thе liquor in his hand and took a drink therefrom. According to the State’s OAvn evidence, hoAvever, this possession Avas “fleeting and shadoAvy.” There is no evidence he had any control of the liquor or that he had been in control or in possession of the *152 liquor at any time prior thereto. This drinking pаrty, composed of the occupants of the Ford roadster, had been driving over the town for a considerable time prior to the incident when defendant was observed taking a drink from the bottle. He had not been in their company, as the evidence shows, prior thereto.
It is quite clear to us from this record that the defendant was not in actual possession or control of the bottle of whiskey but that it belonged to another and that other person had pleaded guilty to the possession thereof. Under such circumstances we do not believe the evidence sufficient to support the conviction and the judgment should be reversed and the defendant discharged. It is so ordered.