Dissenting Opinion
DeBruler, J.I must respectfully dissent from the majority’s disposition of this case. The evidence given at the trial is insufficient to support the verdict of the jury that this appellant “possessed” the marijuana. The circumstances and events shown by the evidence as described in the majority opinion merely support the conclusion that the appellant was near the marijuana and that he had knowledge of the presence of marijuana near him. However, being physically near the substance with knowledge of the physical location of the substance does not constitute “possession.” While admittedly there is evidence that the appellant had the ability to touch, use, and assist in the processing of the marijuana, there is *397no evidence that he had the intent to do so. In the absence of an intention on his part to exercise dominion over the marijuana, I do not believe it can be concluded as the majority does, that he constructively possessed it.
Also, the evidence of the police officer that the appellant was in the process of exiting the back door of the apartment when first seen, is not transformable into evidence of an attempt to flee to avoid detection or arrest. There is no evidence from the officer who observed this phenomenon that the appellant, upon becoming aware of the presence of police officers, immediately sought to escape their detection or arrest, by leaving the apartment through the back door. The majority is in error in considering this evidence as supporting the jury’s verdict that the appellant is guilty of the charge of unlawfully possessing marijuana.
The majority has created an artful characterization of the facts of this case when it has described the apartment and activities there as a manufactory of marijuana. While the description is seductive, I believe it cannot serve to support the conclusion reached by the jury that this appellant possessed the marijuana. This apartment is, impliedly, at least, being compared to a factory in which items of commerce are being produced and filled with persons whose function it is to further the industrial ends of the place. A factory is a place used for the purpose of manufacturing, and it is a place that is used over a long period of time for the same use. The people found in that place during its operation may be presumed to be engaged in its enterprise. These underlying notions of the nature of a place of manufacture do not adhere to this apartment. At least one of the men arrested actually lived in the apartment. This was a home where all of the homelike activities of human beings takes place. They read, sleep, eat, listen to music, talk, watch TV, and receive friends and neighbors. There was no evidence that this apartment had been used for processing marijuana on any previous occasion or that it was a center for illegal *398trafficking in marijuana. There is no evidence that this appellant had been there more than once or even for an extended period of time on the day of the arrest. No natural presumption arises that all present in such a place of residence are steadfastly engaged in the same activity, no matter how “obvious” such an activity might be. In cases such as U.S. v. Gainey (1964), 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658, relied upon by the majority, illegal distilleries are more often than not hidden off the beaten track. In such cases as in the case of the actual factory, there is a natural inference that those present at that location are engaged in the only enterprise around. On the other hand if the illegal enterprise is moved into a private apartment, or other place in which it is usual to carry on a multitude of other and completely lawful activities, then and in that event, it is not rational to infer that everyone present there is engaged in the unlawful enterprise.
Note.—Reported in 296 N. E. 2d 412.