(dissenting).
I respectfully dissent.
I believe the assignment of error contending the evidence is insufficient to support of the verdict is well-taken. The State’s case against plaintiff in error Perry is based solely upon the presumption of control over his apartment where the contraband substance was found. It is true that the evidence established the apartment was rented in Perry’s name and that a relatively small portion of the marijuana was found under the bed of Perry. It is also true that in the absence of countervailing evidence this would be sufficient to charge defendant with control and possession of the substance. However, defendant countered this presumption with evidence which showed that his roommate, and not he, had the control and possession of the substance. Supporting this contention is not only the defendant’s testimony, but that of the roommate who completely exonerated defendant, and the roommate’s banker who substantiated the withdrawal of the money from the roommate’s bank account which was for the purpose of purchasing the marijuana.
This situation should be similar to that found in Morelock v. State, 187 Tenn. 478, 216 S.W.2d 5, where a conviction for receiving stolen property based solely upon a possession of recently stolen property could not be affirmed where the possession was not shown to be personal, exclusive, and unexplained. Here the presumption was neither personal, exclusive, nor unexplained.
In Shelton v. State, 190 Tenn. 518, 230 S.W.2d 986, a conviction for possession of intoxicating liquor was based on a presumption. The Supreme Court there held:
“The presumption that the defendant, as husband and head of the family, is the possessor and owner of any whiskey found on the premises of the marital dwelling, Crocker v. State, 148 Tenn. 106, 251 S.W. 914, is a presumption of law merely, and is effective as proof only so long as there is an entire lack of evidence. In the present case, the testimony of the officers that the wife was in possession and exercised dominion over the whiskey by attempting to destroy it, rebuts in its entirety, the presumption of law. Kelley, v. State, 184 Tenn. 143, 147, 197 S.W.2d 545. In the face of the positive evidence of the officers, the presumption of law has no probative force to support the conviction.”
While it was not officers who supported the evidence offered by the defendant in this case, the officers’ testimony did no more than place the marijuana in the apartment jointly occupied by defendant and his roommate. While the jury sees and hears the witnesses and is to be the judge of the credibility of them, where, as here, there is no conflict in testimony to be resolved, the jury is not privileged to disregard the evidence offered by defendant and his witnesses, for every witness is presumed to tell the truth.
“As to presumptions, it is settled law that while they may be indulged in criminal cases, this cannot be done to deprive the defendant of the presumption of innocence as was done in this case.
“In Marie v. State, 204 Tenn. 197, 319 S.W.2d 86, presumptions are discussed, and it is said that a presumption is a substitute for evidence which, in the absence of direct evidence conflicting, requires as a matter of law that a certain fact conclusion be accepted or proved by the jury. In this case, Underhill’s Criminal Evidence, 5th Ed., is quoted with approval as saying:
‘So, though the decisions are not harmonious, the better and more reasonable view is that the law will not countenance any presumption, which by overcoming the presumption of innocence will cast the burden of proving his innocence upon the defendant.’ Section 43, p. 66.
*753“In the case of Persons v. State> 90 Tenn. 291, 16 S.W. 726, this Court said:
‘It is contended the rules of evidence are the same in civil and criminal cases. Such is the general rule, but it does not follow, that because the rule is the same, that presumptions applicable in one are always applicable in the other, for an antagonistic presumption may exist, and does, in criminal cases; that is, the innocence of the defendant. That presumption of innocence does not allow the presumption of any fact against it.’ 90 Tenn. 295, 16 S.W. 727.
“This case was decided in 1891, but it is still the law in Tennessee today.” Liming v. State, 220 Tenn. 371, 417 S.W.2d 769.