State v. Johnston , 145 Wash. 638 ( 1927 )

On June 12, 1926, two deputy sheriffs, having in their possession a search warrant, went to the premises of appellant Johnston, and being unable to arouse any of the occupants of the house, and finding the door unlocked, entered and found Johnston and Davis asleep. There was found in the room near the head of the bed a bottle of moonshine whiskey, and several practically empty bottles, each containing a few drops of moonshine whiskey. At the time of the arrest, there was some difficulty in awakening the defendants, both deputies testifying that the defendants were intoxicated. They were charged with the crime of unlawful possession of intoxicating liquor. Davis was found not guilty by the jury, and Johnston was found guilty, and appeals.

[1] Complaint is made that the court erred in admitting in evidence the bottles seized. The record shows that they were sufficiently identified and there was no error in their admission.

[2] Complaint is also made as to the failure of the court to give certain proposed instructions, but the matters contained therein were amply covered by the court in other instructions that were actually given.

[3] Complaint is also made that the court erred in defining "possession," the part of the instruction complained of reading as follows:

"Actual possession exists when the property is in the individual occupancy of a party or his agent and is expressed frequently as ``possession in fact'."

This is a correct statement of the law. State v. Spillman,110 Wash. 662, 188 P. 915; State v. Parent, 123 Wash. 624,212 P. 1061.

[4] As to the testimony relative to the defendants being intoxicated at the time of the arrest, we think this is admissible. State v. Thompson, 132 Wash. 124, 231 P. 461;State v. Harris, 135 Wash. 446, 237 P. 1005; 16 C.J., 574.

We find no error in the record. Judgment affirmed.

MACKINTOSH, C.J., PARKER, MITCHELL, and TOLMAN, JJ., concur.