Vaivada v. State

Owen, J. Plaintiff in error (hereinafter called the defendant) was convicted- in the municipal court of Milwaukee county in a trial before the judge of said court, a jury having been waived, of unlawfully having in his possession intoxicating liquors on premises licensed to sell non-intoxicating beverages. The arrest followed a search of said premises by police officers of the city of Milwaukee, as a result of which search they found a quantity of moonshine whisky in the kitchen immediately adjacent to the barroom — a door leading from the barroom into- the kitchen. [310] The defendant contends that he was not in possession of the kitchen and it did not constitute a part of the licensed premises. The evidence shows that the defendant had control of the entire building, consisting of the barroom and living quarters, but whether as lessee or owner does not appear. A portion of the living quarters, including the kitchen, was leased to one Kainowski. The defendant retained a bedroom, which adjoins the kitchen, and to go from the barroom to his bedroom it was necessary for him to pass through the kitchen. The door between the barroom and the kitchen was usually open, at least unlocked, and the defendant had been seen to take patrons of the barroom into the kitchen. At the time of the search the officers found a number of whisky glasses on a tray in the kitchen, two of which were wet and smelled of liquor. At the time of the search Kainowski was present and denied to the officers that he owned the liquor or knew anything about it. Upon the trial he testified that the liquor was his. If the defendant had sufficient control and dominion over the kitchen to enable him to keep intoxicating liquor therein and dispense it to his customers, then the kitchen constituted a part of the licensed premises, and his possession of liquor therein constitutes the offense of which he was convicted. Walsh v. State, 180 Wis. 356, 192 N. W. 1004; Wibmer v. State, ante, p. 303, 195 N. W. 336 (decided herewith). Whether the defendant did possess such control and dominion over the kitchen was a question of fact to be determined by the trial judge (a jury having been waived). In view of Kainowski’s unsatisfactory testimony and contradictory statements, especially in view of the juxtaposition of the barroom and the kitchen, the defendant’s practice of taking patrons into .the kitchen, the presence of the whisky glasses oh the tray, two of which were wet and smelled of liquor, the court was not obliged to believe Kainowski’s testimony that the liquor belonged to him, [311] or that Kainowski’s possession of the kitchen was exclusive of the right of the defendant to use it for the purpose of serving drinks to his customers. If the defendant used it for- this purpose, then it was a part of the licensed premises which might be searched without a search warrant (Finsky v. State, 176 Wis. 481, 187 N. W. 201; Silber v. Bloodgood, 177 Wis, 608, 188 N. W. 84), and the evidence so procured was admissible. Upon the evidence the conviction cannot be disturbed. By the Cotirt. — Judgment affirmed.