Quick v. State

Counsel

Harold W. Davidson, of Carthage, for appellant. The fact that the liquor was found concealed on the premises of this appellant is the only evidence against him, and this court held long ago in the case of City v. Gordon, 80 So. 785, 119 Miss. 325 , that "One who has liquor in his possession without knowledge thereof as the result of some other party placing the liquor in his possession without his knowledge or consent does not violate the laws against the possession of intoxicating liquors." The second instruction for the state is calculated to lead the jury to believe that they should convict a defendant husband where liquor is found in his home, even though that liquor was put there by his wife, or some other member of his family without his knowledge or consent. In the case of Wylie v. State, 119 So. 825 , 151 Miss. 897 , it was held that prima facie the presumption is that it was under the control of the husband, since under our law we still recognize the husband as the head of the household. But the court further said: "This presumption of possession as between husband and wife in the home of the husband is a rebuttable presumption, not conclusive, but in this case there was no effort on the part of the appellant to rebut it." In the present case, the appellant offered considerable evidence to rebut the prima facie presumption, and since the said presumption had been rebutted by substantial testimony, the instruction, as given, without any language in it to evidence that the said presumption could be rebutted, or that it was anything other than an iron-clad presumption, was highly prejudicial to him. The instruction, in the language in which it was given, tended to lead the jury to believe that under the law they had a right to convict him for the whiskey, regardless of whether or not they might believe it was solely the whiskey of his wife, or whether or not he had any control or possession of same. Geo. H. Ethridge, Assistant Attorney-General, for appellee. The second instruction given for the state is assigned for error, and, unless it is cured by the instruction given for the defendant, it is error in my judgment. The instruction for the defendant which possibly cures this instruction is as follows: "The court instructs the jury that if you believe from the evidence or the lack of evidence that the defendant was away from home at the time the liquors in evidence were brought there, and that he had no interest in, control of, or knowledge of said whiskey, and that said whiskey was discovered and taken away before he returned home, then the defendant is not guilty of possession of said liquors, although they were found on his premises." The instruction given for the defendant seems to me squarely put the proper hypothesis to the jury on the evidence in the case, and I think it could be held that this instruction cured the error of instruction for the state, which was quoted above and in which the jury were told that the presumption raised by the facts stated hypothetically in the instruction would exist that the whiskey was the whiskey of the appellant. The general rule is that when the facts are disclosed by witnesses either for the state or the defendant and are consistent and not contradicted by facts of which the court takes judicial knowledge, or other evidence in the case, the presumption disappears, and the jury are to decide questions by the evidence and not by presumption, as has been held in this court in many cases. Hawthorne v. State, 58 Miss. 778 ; Houston v. State, 117 Miss. 311 , 78 So. 182; Weathersby v. State, 165 Miss. 207 , 147 So. 481 ; Wesley v. State, 153 Miss. 357 , 120 So. 918 ; Patty v. State, 126 Miss. 94 , 88 So. 498; Gray v. State, 156 Miss. 266 , 130 So. 150 . It appears to me, however, that the story of the wife could be reasonably discounted and the husband charged with knowledge by reason of the large quantity of liquors bought by his wife and kept in the place, which the evidence is sufficient to show was prepared by the appellant. The jury have wide latitude in determining the question of fact, and where the testimony for a defendant is by members of his family and there are reasonable grounds for believing it may be false, because of the tendency of the members of the family to testify favorably to other members of the family when criminal charges are under investigation.