Harness v. State , 130 Miss. 673 ( 1922 )

Sykes, P. J.,

delivered the opinion of the court.

Joe Harness was convicted of 'having in his possession intoxicating liquors, from which judgment this appeal is prosecuted.

There was only one witness who testified in the case. His testimony was to the effect that one night he saw three men standing on thé sidewalk, one in front of the other two. One of these men had a bottle in his hand drinking. When the man finished drinking he handed the bottle to the. defendant, who was attempting to hand it to the third man. The third man reached up to take hold of it when the witness grabbed this defendant’s hand and took the bottle away from him. The defendant then knocked the bottle out of the hand of the witness to the ground, where it broke. Whisky was in the bottle. ■ At the conclusion of this testimony, the defendant asked the court to instruct the jury to find him not guilty. This the court declined to do.

The question here presented is whether or not a person who is not the owner nor the original possessor of intoxicating liquors, but who merely attempts to hand a bottle from one person to another, is guilty of this offense. From this testimony he was evidently acting at the request of one or the other of these parties — namely,, to pass the bottle from the one to the other. Under this testimony the real party in possession and control of the bottle at the time the officer interfered was the person who had just finished taking the' drink. The defendant was a mere conduit, so to speak, of the bottle from the one man to the other. It was in his hand for a very small portion of time. He was not attempting to exercise any dominion or control whatsoever over it. The word “possession” is thus defined by Webster:

“1. A possessing, or holding as one’s own. 2. The having, holding, or detention of property in one’s legal power or command; ownership. 3. Thing possessed.”

Volume 28, A. & E. Ency. of Law, defines it as follows': “Possession is often defined to be the detention or enjoyment of a thing which a man holds or exercises by himself or by another who keeps or exercises it in his own name. It has been said to mean simply the owning or having a thing in one’s power, and to imply a present right to deal with a thing at pleasure and to exclude other persons from meddling with it, being something more than a mere right or title to a present or future estate.”

31 Cyc. gives the following definition of it: “The term has been defined as follows: Simply the owning or having a thing in one’s power; the present right and power to control a ’thing; the detention and control of the manual or ideal custody of anything which may be the subject of property, for one’s use or enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name; the detention or enjoyment of a thing which a man’holds or exercises by himself or by another who keeps or exercises it in his name; the act of possessing, a having and holding or retaining of property in one’s power or control; the having or holding or detention of property in one’s power or command; the sole control of the property or of some physical attachment to it; that condition of fact under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons.”

While it is true that the bottle of whisky was actually in the hand of the defendant for a very small portion of time, it was only there for the purpose of being passed by him from one man to the other. This is not the possession contemplated by these statutes. The peremptory instruction in favor of the defendant should have been granted.

Reversed, and appellant discharged.