The defendant was convicted of the crime of engaging in the liquor traffic as a second offense, it being specifically charged in the information that she "did wilfully, unlawfully and feloniously have in her possession intoxicating liquor; . . ." She appeals from an order denying a motion for a new trial.
The record discloses that on August 31, 1934 officers of the sheriff's office of Cass county, and the police department of the city of Fargo, under authority of a search warrant, entered and searched the living quarters of the defendant, consisting of a downstairs apartment of three or four rooms. The officers entered through a rear door directly into the kitchen where they found the defendant canning fruit. The search disclosed two bottles in a man's winter overcoat hanging on a hook on the wall in a room adjoining the kitchen. One bottle was partly filled with whiskey, and the other partly filled with alcohol. These two bottles and their contents constitute all the liquor found on the premises.
The defendant testified that the coat in which the liquor was found was left hanging on the wall by her brother sometime during the preceding June, and that she knew nothing of the presence of the liquor. A suit and a raincoat belonging to the brother and a summer dress belonging to the defendant hung on the wall beside the coat. The brother had not been on the premises since June.
The defendant contends upon this appeal, that the evidence is insufficient to sustain the verdict, that the presence of the liquor is but a circumstance which does not exclude every reasonable hypothesis of innocence, and that as a matter of law the state has failed to establish such guilt beyond a reasonable doubt.
The state contends that the defendant is presumed to have knowledge of the liquor found in her apartment and in her possession, and that it was for the jury to weigh this presumption against the defendant's denial of such knowledge. *Page 537
In State v. Schuck, 51 N.D. 875, 201 N.W. 342, it was held, that where intoxicating liquor is found in the possession of the defendant who denies knowledge thereof, that a question of fact arises to be decided by the jury, and that the jury might infer knowledge from the physical fact of possession.
In State v. Stern, 64 N.D. 593, 254 N.W. 765, ¶ 3 of the syllabus, this court has said, "A person is presumed to be the owner of intoxicating liquor found in his possession and is presumed to have knowledge of liquor found in his possession and there was no error in instructing the jury that the law presumes that a person has possession or control of the things contained in the building or room which he occupies."
In State v. Arrigoni, 119 Wash. 358, 205 P. 7, 27 A.L.R. 210, it was said, "The liquor was found in a house in which the appellant had possession and over which he had control, and the presumption naturally and legally arises that he had possession and control of the things contained therein. The presumption is of course rebuttable, and undoubtedly was rebutted if the account given of the presence of the liquor in the house is to be taken as true. But, manifestly, it was for the jury, not the court, to say whether or not the account was true."
In the case before us the liquor was found in a room which was a part of the private living quarters of the defendant. In order for her to be guilty of unlawfully having liquor in her possession, she must have been conscious of such possession. The one question here presented insofar as the sufficiency of the evidence is concerned, is whether or not the defendant had knowledge that the liquor was in the coat. The coat hung on the wall for approximately two months prior to the search. As was said in State v. Shuck, supra, "it may be inferred that a man knows the contents of his own home; and if he knows, he is ordinarily, as a matter of law, deemed to be in possession thereof." This inference is, of course, rebuttable. The defendant attempted to rebut it by her testimony. Her credibility was impeached by proof of a prior conviction for the crime of engaging in the liquor traffic. The jury did not believe her testimony. This court will not say that as a matter of law the jury should have believed her testimony. The evidence is sufficient to sustain the verdict. *Page 538
In cross-examining the defendant concerning the prior offense, the assistant state's attorney inquired, "and that particular offense was the possession of four gallon cans of alcohol, was it not?" The objection of defendant's counsel on the ground that the question was improper cross-examination, was sustained. The question was then withdrawn and no attempt was made to further pursue that line of cross-examination. The defendant contends that the reference to the quantity of liquor involved in the former conviction was prejudicial to the defendant. Upon this point we are satisfied that the record discloses no prejudicial error.
The defendant further contends that she was prejudiced by the argument of the assistant state's attorney in which he referred to her as a "bootlegger." Such reference was, no doubt, improper, but the court upon objection of defendant's counsel, cautioned the jury to disregard the reference to the defendant as a "bootlegger." Any possibility that this remark might have prejudiced the defendant with the jury was removed by the timely caution of the court.
Affirmed.
BURKE, Ch. J., and NUESSLE, J., concur.