People v. Tripp

226 N.W. 834, 248 Mich. 225, 1929 Mich. LEXIS 550

• Court: Michigan Supreme Court
• Decided: October 7, 1929
• Docket: Docket No. 130, Calendar No. 34,232.
• Status: Published

Opinions

I find reversible error in this record. Defendant was convicted of having intoxicating liquor in his possession, at his home, on the 9th day of July, 1928. His defense was that he came home from his work just before the noon hour and found his wife, sister, and three men there engaged in drinking intoxicating liquor; that he objected, and finally threw a jug, containing whisky, out of the window.

Under instruction given by the court the jury could do no less than find defendant guilty, and this was done with the recommendation of mercy. Defendant was sentenced to prison for life. If defendant's testimony was true, he did all he could, by way of expostulation, to get the liquor out of his home. I do not think he should be held guilty of possessing the liquor if he endeavored to have it removed from his home. He was not under obligation to enter into a knock-down-and-drag-out fight with his wife, sister, or the three men, else be held to have possession of the very thing he was trying to avoid.

I think the court was in error in instructing the jury as follows:

"I will say to you that if from the facts you determine that that liquor was in his possession or in his home with his knowledge at that time, and it was there a sufficient length of time that after he discovered it was there he permitted it to stay there, no matter how long, during that time he was in possession of it, and that is a violation of the law, if you find that to be a fact. Now, that is the law that you have agreed to take from the court as the law in this case. In determining this fact, as to whether or not he had it in his possession any length of time, or that he had it in his possession any length of time so that he should be presumed to have knowledge, you will take into consideration the testimony itself, take his own testimony, and all the testimony. If you take the story of the respondent himself, that he arrived in his home between 10 o'clock and 11 o'clock that forenoon and that when he arrived there he knew that the liquor was there in his home and that he remained in his home until 20 minutes or half an hour later when he went away, he left that liquor there in his own home without destroying it, went after this ice, and left his wife and her sister, Mrs. Teiderman, and these three men there with that liquor, and if you find he did that knowingly, find that beyond a reasonable doubt from the evidence in the case, then I say to you that the people have established the fact that he knew and had knowledge that that liquor was there and had knowledge at that time that it was in his possession, and I charge you that the respondent will be presumed to have knowledge that that liquor was there during that time and that he had possession of it during that time."

If defendant, when he returned from his work to his home found his wife, sister, and the three men drinking intoxicating liquor and protested, and then went a short distance to get some ice for his wife who was a sufferer from asthma, and, upon his return, again protested and endeavored to have the liquor removed, and both protestations and endeavors were within the compass of about a half hour, then he was not guilty of possessing the intoxicating liquor.

The rule given the jury by the court rendered the defendant guilty, even though he endeavored to have the liquor removed from his home and did what he could to avert any possessory right thereover. He was not bound to take the liquor from his wife and others and immediately destroy it or be held guilty of its possession.

Defendant's testimony raised an issue of fact for the jury, and the instruction mentioned did not give the law applicable to such an issue.

The instruction given finds no support in People v. Sybisloo,216 Mich. 1 (19 A.L.R. 133).

The point I have discussed is raised by defendant's sixth assignment of error.

The judgment should be reversed, a new trial granted, and defendant remanded to the custody of the sheriff of Genesee county to await trial.

NORTH, C.J., and FEAD, CLARK, McDONALD, and POTTER, JJ., concurred with WIEST, J. The late Justice FELLOWS took no part in this decision.