Opinion
No. 31060.
March 26, 1934.
CRIMINAL LAW.
Enactment of statute legalizing sale and possession of beer pending appeal from conviction for possessing beer and intoxicating liquor held without effect upon such conviction, in view of statute providing that statutory changes shall not affect punishment for prior offenses (Laws 1934, House Bill No. 26; Code 1930, section 1361).
APPEAL from Circuit Court of Jefferson Davis County.
Martin Berry, of New Hebron, for appellant.
We submit that the court below was in error in refusing the request of the appellant to go into a preliminary inquiry to test the sufficiency of the evidence proposed to be introduced against him.
Holmes v. State, 146 Miss. 358.
What beer are we trying the negro for possessing, anyway? The beer he drank or the beer in the keg. Certainly, we cannot say, under the statute, that one possesses beer when the beer has entered the mouth and stomach. That is drinking beer and there is no law against that; and, too, that is not possession within any fair meaning of the word.
The affidavit charges no crime.
Sullivan v. State, 67 Miss. 346. Wm. H. Maynard, Assistant Attorney-General, for the state.
The action of the lower court in overruling appellant's motion for a peremptory instruction was proper.
Anderson v. State, 132 Miss. 147, 96 So. 163; Adair v. State, 148 Miss. 240, 114 So. 345; Goodman v. State, 158 Miss. 269, 130 So. 285; Holley v. State, 144 Miss. 726; Clark v. State, 154 Miss. 457, 122 So. 534; Hayes v. State, 153 Miss. 620, 121 So. 281; Winningham v. State, 156 Miss. 659, 126 So. 477; Prine v. State, 158 Miss. 435, 130 So. 687; Joyce on Intoxicating Liquors, page 717; 2 Wharton "Criminal Law," section 1811; Mitchell v. State, 129 Miss. 440, 92 So. 578; Schillings v. State, 151 Miss. 361, 118 So. 137.
Argued orally by G.L. Martin and Ovie L. Berry, for appellant, and by Wm. H. Maynard, for the state.
The appellant was convicted on an indictment charging him with the possession of beer and intoxicating liquor; and the judgment was affirmed on a former day of the present term of this court. Pending the appeal, the Legislature enacted House Bill No. 26, legalizing the sale and possession of beer of a certain alcoholic content. The appellant has filed a motion, in effect a suggestion of error, calling attention to this statute, and has suggested that, instead of affirming the judgment, we should have reversed it and dismissed the appellant, for the reason that, when the judgment was affirmed, the statute did not prohibit the possession of beer. The evidence does not disclose the alcoholic content of the beer of which the appellant was in possession, but that fact will be left out of view. The statute invoked contains no provision relating to past offenses or pending prosecutions therefor, but section 1361, Code 1930, provides: "No statutory change of any law affecting a crime or its punishment or the collection of a penalty shall affect or defeat the prosecution of any crime committed prior to its enactment, or the collection of any penalty, whether such prosecution be instituted before or after such enactment; and all laws defining a crime or prescribing its punishment, or for the imposition of penalties, shall be continued in operation for the purpose of providing punishment for crimes committed under them, and for collection of such penalties, notwithstanding amendatory or repealing statutes, unless otherwise specially provided in such statutes." State v. Widman, 112 Miss. 1, 72 So. 782.
Overruled.