Hayes v. State , 145 Tenn. 629 ( 1921 )

Mr. Justice Green

delivered the opinion of the Court.

The State submitted this case on one count of an indictment which charged that defendant “unlawfully did then and there possess certain intoxicating liquors received by him in the State and county aforesaid after February 2, 1917, directly or indirectly from some common or other carrier.”

Evidence was introduced, and the defendant found guilty and assessed with a fine of $100. Defendant appealed in error to this court.

There appears to have been a stipulation of facts, which was all the evidence in the- case, and was as follows:

“That defendant, W. T. Hayes, had in his residence in Nashville, Davidson county, Tenn., on the-day of August, 1921, one quart of white corn whisky, which had been in his possession for about one week.”

Chapter 12 of the Acts of 1917, known as the Bone Dry Law, makes it unlawful: (1) To receive intoxicating liquors from a common or other carrier; (2) to possess intoxicating liquors received from a common or other carrier; (3) for a common carrier or person to ship or transport intoxicating liquors; and (4) for any person to personally transport intoxicating liquors.

There are certain exceptions to these provisions contained in the act which are not material to this investigation.

It will be séen from the stipulation that the State only proved the possession by the defendant in August, 1921, of one quart of whisky, which had been in his possession about a week. Defendant was charged with the unlawful possession of intoxicating liquors received by him from a common or other carrier, and with this alone.

The evidence is not sufficient to sustain the conviction upon this indictment. Defendant might have manufactured the whisky himself or he might have personally transported it to his residence. He is not charged with either of these offenses, and he cannot be convicted for an offense with which he is not charged. Holt v. State, 107 Tenn., 539, 64 S. W., 473.

The bare possession of such a quantity of liquor in one’s residence is not an offense under the laws of Tennessee. It may be evidence of a transgression against some of our liquor laAvs, but the possession of liquor per se under the circumstances appearing is not denounced by our statutes.

The judgment of the trial court must accordingly be reversed.