State v. Hornaday ( 1986 )

Brachtenbach, J.

(dissenting) — Here are the unchallenged findings of fact:

1. Defendant appeared to be intoxicated;

2. Strong odor of intoxicants came from defendant;

3. Defendant was a minor.

Here is the challenged conclusion of law:

Defendant violated RCW 66.44.270, minor in possession of liquor.

The District Court held there was a violation and, therefore, the arrest was valid. So did the Superior Court, and so did a majority of the Court of Appeals. No one challenges the fact that the defendant was intoxicated. Yet, a majority of this court holds that everyone else was wrong because the intoxicated defendant was not in "possession" of intoxicants.

Oh, I concede the accuracy of the majority's citations. What I do not concede, however, is the absence of logic and rational analysis. Common sense is not a bad precedent. To hold that an admittedly intoxicated person is not in possession of intoxicants is an exercise in sophistry beyond my comprehension unless we, like spiders, are content to spin fine but temporary webs.

Francis Bacon, in "Of Judicature," Essays (1625) said: "Judges must beware of hard constructions and strained inferences, for there is no worse torture than the torture of laws." Tripp, International Thesaurus of Quotations 330 (1970).

The majority tortures the law; I am reminded of a phrase well known to appellate judges: "I dissent for the reasons stated by the majority."

I would affirm.

Andersen, J., concurs with Brachtenbach, J.