Jicha v. State , 189 Wis. 620 ( 1926 )

Stevens, J.

The information alleges that the plaintiff in error (hereinafter called defendant) “did unlawfully have in his possession intoxicating liquor, to wit: moonshine whisky, contrary to subsection (3) of section 165.01 of the Wisconsin Statutes.” The information very clearly alleges that the defendant unlawfully had moonshine whisky in his possession. This constitutes án offense under the prohibition statute. State v. Smith, 184 Wis. 664, 666-668, 200 N. W. 638. The fact that the information alleges that this possession was contrary to sub. (3) of sec. 165.01 of the Statutes, instead of sub. (32) (d) of sec. 165.01, could not have misled the defendant or prejudiced his rights. The information fully and accurately advises the defendant of the exact nature of the offense charged.

The proof established the fact that a group' of boys who desired to secure some intoxicating liquor sent one of their number to the home of the defendant. Outside the defendant’s house this boy met a son of the defendant and asked him for liquor. This son, who was nineteen or twenty years of age, went in the direction of the barn and returned after an absence of ten or fifteen minutes with a bottle of moonshine. There is no proof that the liquor was procured in the barn or upon the farm of the defendant. Defendant’s son who produced the liquor was gone a sufficient length of time so that he could have procured the liquor on premises owned by some other person than the defendant. There was no proof that the defendant had the liquor in his possession or that it was under his control in any way. Both the defendant and his wife testified that they were in bed at the time of the sale and that they had nothing to do with the sale or possession of the liquor sold. This testimony is not sufficient to meet the burden imposed on the State in order to establish possession by the defendant.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.