MELBY v. UNITED STATES

MELBY v. UNITED STATES. Circuit Court of Appeals, Ninth Circuit. October 15, 1928. No. 5556. Lucas C. Kells, of Seattle, Wash., for appellant. Anthony Savage, U. S. Atty., and David Spalding, Asst. U. S. Atty., both of Seattle, Wash. Before RUDKIN, DIETRICH, and HUNT, Circuit Judges. Rehearing denied November 30, 1928. [MAJORITY — RUDKIN, Circuit Judge.] RUDKIN, Circuit Judge. This is a writ of error to review a judgment of conviction for unlawfully possessing intoxicating liquor in violation of the National Prohibition Act (27 USCA). The testimony on,the part of the government tended to prove that the coast guard surprised three persons in the act of unloading intoxicating liquor from a skiff at Anaeortes, Wash. The plaintiff in error, one of the persons thus surprised, was seen carrying a sack containing intoxicating liquor from the skiff to the shore. He was later apprehended, but his two companions escaped. On the foregoing facts the plaintiff in errqr challenged the sufficiency of the testimony to support a verdict of guilty, contending that possession within the purview of the National Prohibition Act does not mean mere manual custody — that it means dominion and control over the property, with power of disposal in the possessor. But we find it unnecessary at this time to consider the exact nature or character of the possession which comes within the provision of the statute, because here the plaintiff in error was found in the actual physical possession of intoxicating liquor, and this possession, unexplained, was prima facie evidence of ownership. Sehouler on Personal Property (5th Ed.) § 1, note; Greenleaf on Evidence (16th Ed.) § 34; Wigmore on Evidence (2d Ed.) § 2515. The judgment is affirmed.