State v. Nedtvedt , 66 N.D. 535 ( 1936 )

The defendant was convicted of engaging in the liquor traffic as a second offense. She was sentenced to a term in the penitentiary and appeals.

The only specification of error necessary to consider is the insufficiency of the evidence to sustain the verdict.

The defendant lived alone in a four-room apartment in Fargo. At 1 P.M. of August 31, 1934 her home was visited by two police officers and two deputy sheriffs, armed with a search warrant. When they arrived they found the defendant in her kitchen, busily engaged in canning fruit, and talking with the man whom she afterwards married — at least the record indicates it is the same man. The officers served the search warrant, told her of their mission, and made a thorough and complete search of her house. One of the deputies testified that while searching a closet off the bedroom he found in the pockets of a man's heavy winter overcoat a pint bottle "containing a liquid that looked like whiskey, partly full" and a half-pint bottle of alcohol. He is the only one who found anything. In a vague sort of way the record indicates that the "liquid that looked like whiskey" was whiskey. In this closet there was a man's suit of clothes and some garments belonging to a woman. The only direct facts which the State has to sustain a conviction are that this liquor was found in her home and that in May 1933 she had been convicted of engaging in the liquor traffic; but nothing to show this offense was in the same place, or in her home wherever she lived.

Defendant says she did not know such liquor was in the overcoat pocket; that during that summer her brother had visited her from time to time, and in June of that year he left his overcoat there, together with a suit of clothes for her to clean; that this clothing was hung in the closet, she had not examined it, and did not know what it contained. There was no specific denial of this evidence.

The state says that because liquor was found in her home there is a presumption she possessed it, and because of this presumption and her previous conviction the jury had the right to disbelieve her testimony entirely.

The jury disbelieved her entirely, except as to her admission of previous conviction. But eliminating her explanation, there is no attempt to prove knowledge or ownership. The case for the state rests upon a presumption of possession, but which is not proved for possession implies knowledge.

There is nothing wherein the defendant and the police officers contradict one another, even to the remotest degree. They do not impeach her. The defendant does not deny the officer found liquor in the overcoat pocket, and the state does not say the defendant owned the property. The officers did not ask her if it was hers, and when they exhibited it to her she told them she did not know anything about it.

But the testimony of the defendant does dispute whatever presumptions arise from the fact liquor was found in her home. In order to sustain the conviction it must be assumed that the plaintiff knew the liquor was there and that she owned it or had such control over it so it can be said it was in her possession. To say the law presumes that which a person possesses is owned by him, that he is presumed to be the owner of liquor found in his possession, and that proof of the finding of intoxicating liquors in the possession of the accused shall be received and acted upon as presumption of evidence, all presupposepossession.

For "possession" of intoxicating liquor in a prosecution for such offense, "There must be two elements: First, the mental attitude of the claimant, the intent to possess, to appropriate to oneself; and second, the effective realization of this attitude." State v. Colson, 134 Kan. 147, 4 P.2d 414. It means actual control over and management of the liquor. State v. West,226 Mo. App. 1149, 49 S.W.2d 274, 275. Such control, however, implies knowledge. Keifner v. Com. 225 Ky. 163, 7 S.W.2d 1066,1067.

If the defendant did not own the liquor, did not know it was in any of her rooms, then it was not in her possession. Finding liquor in the place is not sufficient to sustain the presumption. Physical presence alone is not possession. Ignorance of its presence dispels the presumption, and there is no proof whatever intimating the defendant had any knowledge there was liquor in her brother's overcoat.

It is true that in Shell v. State, 184 Ark. 248,42 S.W.2d 19, a conviction of possessing intoxicating liquor for sale as a beverage, as a second offense, was sustained where the officers found ten gallons of liquor at the front porch of defendant's home, together with proof of a previous conviction for a similar offense; but there the "previous offense" was in the same place, a man was seen coming from the place at ten o'clock at night, and "there was no explanation or suggestion that the liquor was kept for any other purpose, . . ." The court held that the previous conviction for a similar offense in the same place, the presence of others at that time of night, the finding of the liquor at his front porch, and the absence of explanation or suggestion were "sufficient to submit the question to the jury, as to whether he possessed the liquor for sale." But here there was no attempt to prove people frequented her place; that she and her friend were using liquor, had any on the table, or were drinking liquid of any kind. No suspicious circumstances whatever are linked with the case.

The State cites the case of State v. Stern, 64 N.D. 593,254 N.W. 765; but there is no real analogy here. There the defendant had hundreds of cases of beer in his possession and admitted it. There was a small quantity of alcohol found in the pocket of an old coat and a small quantity of alcohol found in an abandoned cooler; but the jury expressly found the defendant did not know of these, though found in his place of business at a time he was actually engaged in the sale of intoxicating liquors. The case cited is of no value in the present controversy.

What tangible evidence is there upon which the jury could say beyond a reasonable doubt the defendant had the possession of this liquor? Mere suspicion is not enough. The officer was not even asked if he put it there. Any one could have slipped it in that overcoat pocket without her knowledge. The explanation of the defendant is so clear, consistent, and reasonable that it seems to me no one can say she was found guilty beyond a reasonable doubt.

I believe a new trial should be granted on the ground that the evidence is insufficient to justify the verdict. I am authorized to state Judge CHRISTIANSON joins in this dissent.