
    McCOMAS v. STATE—(2 Cases).
    Nos. 297, 298.
    4th Dist., Lawrence Co.
    Decided April 2, 1928.
    Ficst Publication of This Opinion.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQUOR — 936. Possession.
    1. where intoxicating' liquor or property designed for manufacture of liquor is charged to have been found in possession of any person, and evidence does not show that when so found, such person had actual physical possession, and the only basis for charge is that it was found on premises owned and controlled by accused, it must be shown that it was found at such point or place on such premises that presumption reasonably arises that accused knew of its presence there.
    2. Possession, under statute, in every case, must be “conscious possession.*'
    Error to Common Pleas.
    Judgment reversed.
    Irish & Riley, Ironton, for McComas.
    James Collier, Ironton, for State.
    STATEMENT OF FACTS.
    The plaintiff in error was charged, by affidavit, in the Common Pleas Court, with the unlawful possession of intoxicating liquor and the possession of property designed for the manufacture of liquor, namely, “one copper still complete.” He was tried and found guilty under both charges. As the two violations grew out of one transaction the charges were tried together and a bill of exceptions filed in each case shows all the evidence adduced in support of both charges. It is contended by the plaintiff in error here that his conviction was improper and that the judgnent in each case is not supported by sufficient evidence.
    The bill of exceptions discloses that on or about the sixth day of December, 1927, several officers of the state and federal prohibition department visited the premises of the plaintiff in error with a search warrant, and while investigating the situation under the authority of that warrant they found the liquor and the still in question. The circumstances and surroundings at that time are clearly described by an officer named Dickson, who says in his testimony: “* * * and I went up there and turned to the right about 125 yards and went over there and found the still in behind a log. * * * and we walked on a little bit and seen where some more leaves were disturbed, and I went right in under a rock there and pulled out a g-allon of liquor; that is, Griffin pulled the liquor out.”
    Another officer testifying said (Record, pg. 2):
    “A. Well, we went and searched around tho home and finally started up the hill, and I think about 160 yards from his home we found a complete' still and one gallon of whiskev; and I suppose maybe within ten feet of the still we found the gallon of whiskey, and about 100 feet from the still we found two sacks with three one gallon jugs in each and two one gallon jugs on the outside.”
    The record does not disclose any other incriminating evidence except that in searching the house and out buildings a number of jugs were found, but the possession of the jugs is fully explained m the evidence adduced'by the defense.
   MIDDLETON, PJ.

“It has been held by many courts in this state that where intoxicating liquor or property of the character involved here is charged to have been found in. the possession of any person, and the evidence does not show that when so found such, person had actual physical possession of the liquor or property and that the only basis for the charge is that it was found on the premises owned or controlled by the accused, it must be shown that it was found at some point or place on such premises that the presumption reasonably arises that the accused knew of its presence there. In other words, possession under the statute in every case must be, as some of the courts have stated, a ‘'conscious possession.” In the instant casé, before the accused should be found guilty of the charges made, it must appear that he knew of the presence of the liquor and still on his premises. This knowledge, of course, may be shown either hy direct evidence or by inference, but, if by inference, such inference must be so strong as to exclude any reasonable hypothesis- other than that the accused knew of the presence of the still and intoxicating liquor at the places described. We think that the evidence does not reach that degree of proof. If this, still was_ being operated on the farm of the accused it is reasonable to assume that some traces of such operation would be obtainable.

The judgment in each case, therefore, is reversed upon the ground that it is not supported by sufficient evidence and the cases are remanded to the Court of Common Pleas for further proceedings according to law.”

(Mauck and Thomas, JJ., concur.)  