
    [No. 20682.
    Department One.
    November 28, 1927.]
    The State of Washington, Respondent, v. E. A. Johnston, Appellant, Thomas Davis, Defendant.
      
    
    
       Intoxicating Liquors (49)—Unlawful Possession—Evidence— Admissibility. In a liquor prosecution, bottles obtained under a search warrant are admissible in evidence when properly identified.
    
       Criminal Law (316)—Instructions — Requests — Already Given. Error cannot be predicated on the refusal of requested instructions amply covered in others given.
    
       Intoxicating Liquors (51)—Unlawful Possession—Instructions. In a liquor prosecution, it is proper to instruct that possession exists when the property is in the individual occupancy of a party or his agent, frequently expressed as possession in fact.
    
       Same (49)—Unlawful Possession—Evidence—Admissibility. In a liquor prosecution it is proper to admit evidence that the accused was intoxicated at the time of his arrest.
    Appeal from a judgment of the superior court for Adams county, Truax, J., entered December 24, 1926, upon a trial and conviction of unlawful possession of liquor.
    Affirmed.
    
      W. O. Miller, for appellant.
    
      Richard B. Ott, for respondent.
    
      
      Reported in 261 Pac. 388.
    
   French, J.

On June 12, 1926, two deputy sheriffs, having in their possession a search warrant, went to the premises of appellant Johnston, and being unable to arouse any of the occupants of the house, and finding the door unlocked, entered and found Johnston and Davis asleep. There was found in the room near the head of the bed a bottle of moonshine whiskey, and several practically empty bottles, each containing a few drops of moonshine whiskey. At the time of the arrest, there was some difficulty in awakening the defendants, both deputies testifying that the defendants were intoxicated. They were charged with the crime of unlawful possession of intoxicating liquor. Davis was found not guilty by the jury, and Johnston was found guilty, and appeals.

Complaint is made that the court erred in admitting in evidence the bottles seized. The record shows that they were sufficiently identified and there was no error in their admission.

Complaint is also made as to the failure of the court to give certain proposed instructions, hut the matters contained therein were amply covered by the court in other instructions that were actually given.

Complaint is also made that the court erred in defining “possession,” the part of the instruction complained of reading as follows:

“Actual possession exists when the property is in the individual occupancy of a party or his agent and is expressed frequently as ‘possession in fact’.”

This is a correct statement of the law. State v. Spillman, 110 Wash. 662, 188 Pac. 915; State v. Parent, 123 Wash. 624, 212 Pac. 1061.

As to the testimony relative to the defendants being intoxicated at the time of the arrest, we think this is admissible. State v. Thompson, 132 Wash. 124, 231 Pac. 461; State v. Harris, 135 Wash. 446, 237 Pac. 1005; 16 C. J., 574.

We find no error in the record. Judgment affirmed.

Mackintosh, C. J., Parker, Mitchell, and Tolman, JJ., concur.  