Opinion
No. 38808.
October 12, 1953.
1. Intoxicating liquors — unlawful possession — evidence insufficient to support conviction.
Evidence that three houses operated as honky-tonks were located close together and that at rear of two of the honky-tonks, including middle one, there were small out-houses used as toilets, and paths leading from middle house and house to north, to the respective out-houses, and path around middle out-house to where officers found twelve half-pint bottles of liquor in weeds, and that at time officers found liquor there were numerous patrons at those two honky-tonks, who frequently used paths to out-houses, was insufficient to convict operator of middle honky-tonk for unlawful possession of intoxicating liquor, where operator denied knowledge, ownership, or possession of the liquor, and liquor was readily accessible to patrons as well as operator.
2. Criminal law — circumstantial evidence — proof necessary to sustain conviction.
When an accused person is to be convicted of a crime on circumstantial evidence, proof of guilt must be such as to exclude every other reasonable hypothesis consistent with innocence.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Rankin County; Roy M. LEE, Special Judge.
L. Percy Quinn, Jackson, for appellant.
I. The affidavit and search warrant are void and the evidence obtained thereunder was inadmissible and appellant was denied her rights under Secs. 14, 23, 24, 26 of the Mississippi Constitution and under the Due Process of Law Clause of the 14th Amendment, U.S. Constitution, and under Secs. 2473 and 2614, Code 1942. Grizzard v. State, 149 Miss. 323, 115 So. 555; Walker v. State, 165 Miss. 130, 146 So. 463; Adams v. State, 30 So.2d 593; U.S. v. Kaplan, 286 Fed. 963, 968-9; U.S. v. Borkowski, 268 Fed. 408, 411; Brewer v. State, 142 Miss. 100, 107 So. 376; Parkinston v. State, 145 Miss. 237, 110 So. 413; Taylor v. State, 137 Miss. 217, 102 So. 267; State v. Guthrie, 90 Me. 448, 38 A. 368; Buckley v. State, 150 Miss. 808, 117 So. 115; Walker v. State, 158 Miss. 339, 130 So. 477; Powell v. State, 146 Miss. 677, 111 So. 738; Hanson v. State, 164 So. 9; Johnson v. State, 202 Miss. 233, 31 So.2d 127; Winston v. State, 48 So.2d 513; Sheffield v. Reece, 201 Miss. 133, 28 So.2d 745; Bouchillon v. State, 179 Miss. 791, 177 So. 34; Jones v. State, 180 Miss. 210, 177 So. 35; Tucker v. State, 128 Miss. 211, 9 So. 845; Sec. 1974, Code 1930; Chap. 210, Laws 1922; Secs. 14, 23, 24, 26, Const. 1890; Secs. 2473, 2568, 2614, Code 1942; Cooley's Const. Lim., 6th Ed., 369, 8th Ed., Vol. 1, p. 622; Cornelius, Search Seizure, 2nd Ed., p. 569.
II. The State failed to prove the corpus delicti, that is, that the alleged possession was a "knowing possession." The court erred in refusing the peremptory instruction; and the judgment and verdict are contrary to law by reason of the lack of proper and competent evidence. City of Jackson v. Gordon, 119 Miss. 325, 327, 80 So. 785; Loftin v. State, 51 So.2d 921; Foster v. State, 49 So.2d 258.
III. The instruction granted the State that "The court instructs the jury for the State that, if you believe from the evidence beyond reasonable doubt, that the defendant, Pearlie Baines, in Rankin County, Mississippi, at the time testified about, willfully and unlawfully had in her possession intoxicating liquor, as charged in the indictment, then you should find her guilty; and the form of your verdict may be as follows: `We, the jury, find the defendant guilty as charged,'" is reversible error. Algheri v. State, 25 Miss. (3 Cush.) 584; Sorrels v. State, 130 Miss. 300, 94 So. 209.
IV. The court erred in excluding the evidence showing the number of liquor fine fees paid the sheriff, said evidence being offered as touching the sheriff's interest. Sec. 1693, Code 1942.
John E. Stone, Assistant Attorney General, Jackson, for appellee.
I. Jurisdiction was vested in the circuit court of Rankin County, and defendant was convicted on competent evidence. Banks v. City of Jackson, 152 Miss. 844, 120 So. 209; Sec. 1831, Code 1942; Smith v. State, 198 Miss. 788, 24 So.2d 85; Hegwood v. State, 206 Miss. 160, 39 So.2d 865; Williams v. State, 42 So.2d 308.
II. The indictment and evidence were sufficient under the law to support defendant's conviction. Mason v. State, 32 So.2d 140, 141; Weatherall v. Brown, 113 Miss. 887, 74 So. 765; Beale v. Yazoo Yarn Mill, 125 Miss. 807, 815, 88 So. 411; Ousley v. State, 154 Miss. 451, 122 So. 731; Chamblee v. State, 44 So.2d 415; Revette v. State, 209 Miss. 860, 48 So.2d 511.
III. The State's instruction is a correct statement of the law. Thompson v. State, 158 Miss. 121, 130 So. 112; Sec. 2631, Mississippi Jury Instructions; Maxey v. State, 150 Miss. 444, 130 So. 692.
IV. The exclusion of the testimony regarding the sheriff's fees was not error. This testimony was not competent to throw any light on the issue to be tried by this jury. The sole issue was whether this defendant is guilty of the possession of intoxicating liquor at the time and place claimed by the testimony.
Appellant was convicted of the unlawful possession of intoxicating liquor. The facts disclosed by the record are summarized as follows:
On the west side of a gravel road, there were three houses, which were operated as "honky-tonks" for Negroes. The one on the south side was known as the Blue Top; the middle place was the Ritz; and the one to the north was the Lone Star. On a certain Saturday night, about ten o'clock, the sheriff, with the assistance of other officers, searched the Lone Star and the Ritz, under warrants issued for that purpose. The Blue Top was dark and not operating. There was a large crowd — 25 or 30 people — in each of the other places.
The spaces between the houses were from 30 to 50 feet wide. These houses were surrounded by weeds. At the rear of the Ritz, about 30 feet from the house, there was a small out-house used as a toilet. Anybody who wanted to, used the out-house. A similar out-house was behind the Lone Star. There was a distinct path from the front of each house to the road, and from the Ritz and the Lone Star to the respective out-houses. There was a path around the Ritz out-house to the place where the liquor, hereafter mentioned, was found. The testimony was in some confusion as to other paths at this location.
When the search of the Ritz was made, the warrant was served on appellant, who was present there, behind the counter. Appellant was operating the place, was in charge, and was running it. No liquor was shown to have been found in the house. A search outside the house disclosed nine half pints of whiskey and three half pints of gin, hidden in the weeds immediately behind the out-house of the Ritz. Appellant disclaimed any knowledge, or ownership, or possession of the liquor, and so testified in her own behalf.
It will be observed that the proof for the State consisted of a showing that appellant operated the Ritz as a "honky-tonk"; that on the night of the search, when numerous patrons were there present, liquor was found hidden behind the out-house; and that there were certain paths on the premises, as referred to above. Appellant denied knowledge, ownership, or possession of the liquor.
(Hn 1) Appellant requested, but was denied, a peremptory instruction, and the refusal of this instruction is assigned as error. We think that, on this record, the point is well taken.
It is well settled that, (Hn 2) when an accused person is to be convicted on circumstantial evidence, the proof of guilt must be such as to exclude every other reasonable hypothesis consistent with innocence. Algheri v. State, 25 Miss. 584; Moore v. State, 188 Miss. 546, 195 So. 695; Murphree v. State, 201 Miss. 34, 28 So.2d 238. Notwithstanding a natural and strong suspicion that appellant was in fact the owner of the liquor stored in the weeds at the rear of her place of business, we cannot say that its presence there under the circumstances necessarily excludes every reasonable hypothesis consistent with her innocence. The liquor may have been placed there by any one of the numerous people present at the Ritz and at the Lone Star, or by the operator of the Lone Star. The location of the liquor was readily accessible to all of them. This possibility is reinforced by the testimony of appellant, disclaiming any connection with the liquor.
The State relies on Chamblee v. State, Miss., 44 So.2d 415, and Revette v. State, 209 Miss. 860, 48 So.2d 511. It is true that in the Chamblee case the Court affirmed a conviction of liquor possession on proof that the liquor was found at the end of a path or paths leading from the defendant's place. In affirming the case, the Court said:
"In view of the fact that the nearest residence was shown to be about three hundred yards away and the paths were well defined from recent and more than casual use, and served as access to no objective other than the cached contraband, this was sufficient to raise an issue of fact for the jury."
But the doctrine of the Chamblee case is clarified by the Revette case. The latter decision also involved a prosecution based on the discovery of intoxicating liquor stored near a path leading from the defendant's place. But, in this instance, the appellant, Revette, was discharged. The Court in discussing the so-called "beaten path doctrine" stated that it "should be confined in its application to a route which terminates at or near the contraband, coupled with a limited or no access to the premises by others, and to other relevant circumstances which might justify a jury in finding possession." It was commented that the factual situation in the Chamblee case was different from that in the case of Revette.
In the case at bar, the path leading to the liquor was that frequently used by patrons of the Ritz in approaching the out-house, except that they did not necessarily use the continuation of the path around the out-house, from front to the rear. However, this extension of the path (only a few feet long) was conveniently at hand for them, and the place where the liquor was found was easily accessible to them.
Our holding in this case is sustained by Foster v. State, Miss., 49 So.2d 258, and Loftin v. State, Miss., 51 So.2d 921, which are closely analogous to the present situation. It is also in accord with the doctrine of Sellers v. City of Picayune, 202 Miss. 741, 32 So.2d 450.
Appellant assigned other errors on this appeal, but, of course, in view of what has been said in this opinion on the point discussed, it is unnecessary for us to consider them.
Reversed and appellant discharged.
Roberds, P.J., and Lee, Arrington and Ethridge, JJ., concur.