
    STATE OF MONTANA on the relation of DALE O. GALYAN, Relator, v. THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR THE COUNTY OF CASCADE, and the Honorable Paul G. Hatfield, Judge Presiding, Defendent.
    
      No. 12007.
    Decided Feb. 19, 1971.
    480 P.2d 840.
   ORDER

PER CURIAM:

Original proceeding. Relator Dale 0. Galyan, petitioned this Court for a writ of certiorari so that a review might be had of the proceedings in respondent court in a criminal ease entitled The State of Montana Against Dale O. Galyan, Defendant.

Following ex parte presentation by counsel for the relator an order was isued to have all proceedings, records and transcripts certified to this Court, providing a time for briefs and for oral argument. Counsel thereafter argued the matter before this Court and it was taken under advisement.

The Court now being advised in the premises, we recognize that constructive possession may be sufficient but it becomes a question of fact, under proper instructions, for the jury as to whether or not there is constructive possession or any possession.

In these circumstances the relief sought is denied and this proceeding is dismissed.

The HON. SID G. STEWART sat in this matter in place of JUSTICE DALY, who was disqualified.  