Milliron v. State

BLOSSER, J.

The trial court committed no error in refusing to require the state to elect upon which transaction it relied for a conviction because they were all parts of a single transaction.

As to the second alleged ground of error, that the court erred in defining possession and what constituted possession, there was no error in the general charge of the court in that respect. However, when the jury asked for further instructions the court told the jury that if the defendant threw the whiskey away to hide it or keep the officers from finding it then it was in his unlawful possession. This instruction was not correct and was an invasion of the province of the jury. The court should have said that if the defendant threw the whiskey away to hide it or keep the officers from finding it the jury from such evidence might infer that the defendant had the liquor in his unlawful possession. Such facts are evidence only of unlawful possession. But in view of the fact that the defendant admitted that he had temporary possession of the whiskey for the purpose of taking a drink of it and throwing the remainder away he in substance admitted his guilt and had no defense, and therefore the action of the court was not prejudicial.

Finding no prejudicial error in the record the judgment is affirmed.

Middleton, PJ, and Mauck, J, concur.