Opinion
No. 41943.
October 16, 1961.
1. Wine and beer — unlawful possession of "Homebrewed Beer" — affidavit fatal for failure to allege possession was in violation of Chapter 279, Laws 1958.
Affidavit alleging defendant's unlawful possession of "Homebrewed Beer" prohibited by order of board of supervisors of a named county was insufficient to support conviction due to its failure to allege that the possession was in violation of a specified state law. Chap. 279, Laws 1958.
Headnote as approved by Jones, J.
APPEAL from the Circuit Court of Winston County; MARSHALL PERRY, J.
Boydstun Boydstun, Louisville, for appellant.
I. The affidavit upon which appellant was tried does not charge appellant with any violation of the law. The affidavit is in language so vague and indefinite that it fails to clearly inform appellant of the crime attempted to be charged against him. Bell v. State, 142 Tex.Crim. R., 154 S.W.2d 650; Collotta v. State, 110 Miss. 448, 70 So. 460; Maladin v. State, 72 Okla. Cr. 80, 113 P.2d 201; Smith v. State, 94 Miss. 259, 49 So. 113; City of Topeka v. Heberling, 134 Kan. 330, 5 P.2d 816; United States v. Standard Brewery, 200 Fed. 486; Zimmerman v. State, 200 Ind. 61, 161 N.E. 297; Sec. 2613, Code 1942; 10 C.J.S. 226; 48 C.J.S. 143.
II. The State wholly failed to prove that the possession of beer has been forbidden by an election in Winston County, Mississippi. Sec. 10208, Code 1942.
III. The verdict of the jury and judgment of the Court against appellant are contrary to the overwhelming weight of the evidence. The State, by lack of evidence, failed to prove appellant guilty of any crime by violation of statutes or common law.
IV. The instructions of the trial court are contrary to law and are so misleading as to fail to give unto the jury guidance in this cause. Fuller v. City of Jackson, 97 Miss. 237, 52 So. 873; Purity Extract Tonic Co. v. Lynch, 100 Miss. 650, 56 So. 316; State v. Kibling, 63 Vt. 636, 22 A. 613; Sec. 2613, Code 1942; 19 Words and Phrases (perm. ed.), 592.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. Cited and discussed the following authorities: Fuller v. City of Jackson, 97 Miss. 237, 52 So. 873, 30 L.R.A. (N.S.) 1078; Hall v. State, 199 Miss. 560, 24 So.2d 780; Jones v. State (Ala.), 17 So.2d 545; Kelly v. State, 237 Miss. 112, 113 So.2d 540; May v. State, 209 Miss. 579, 47 So.2d 887; Riley v. State, 212 Miss. 746, 55 So.2d 447; Secs. 2613, 10207, 10208, Code 1942; Chap. 279, Laws 1958.
Appellant was convicted and sentenced on an affidavit reading as follows:
"STATE OF MISSISSIPPI "WINSTON COUNTY
"Before me, W.C. Wood a Justice of the Peace of the County aforesaid, Ralph Rhodes makes oath that on or about the 23rd day of July 1960 in the First Justice district, Winston County and said State, Willie Brown did wilfully and unlawfully have 1 1/2 gals of Homebrewed Beer in his possession and under his control, the transportation, storage, sale, distribution, receipts, and/or manufacture of beer having been heretofore prohibited by order of Board of Supervisors of Winston County, pursuant to a lawful election, such order appearing of record in Board of Supervisors Minute Book 17, page 194 thereof, against the peace and dignity of the State of Mississippi.
Ralph Rhodes, Affiant
"Sworn to and subscribed before me this 25th day of July, 1960.
W.C. Wood, Justice of the Peace District One"
It will be noted that this affidavit is not as strong as the affidavit in Kelly v. State, 237 Miss. 112, 113 So.2d 540. In the Kelly case, the affidavit was held insufficient.
Chapter 279, Laws of 1958, in the instances there stated, declares unlawful possession of "beer" or "wine" without further definition. The affidavit charged the defendant with possession of "Homebrewed Beer." While it is not necessary to say whether this term, as so used, was fatal, it would have been much better had it been followed by some descriptive term such as "beer, a malt beverage."
(Hn 1) The real fatality, however, results from the failure to allege that the possession was in violation of Chapter 279, Laws of 1958, Kelly v. State, supra.
The affidavit could have provided that the possession was "in violation of Chapter 279, Laws of 1958, inasmuch as Winston County, Mississippi, elected, since February 26, 1934, to prohibit the transportation, storage, sale, distribution, receipt and/or manufacture of wine or beer of an alcoholic content of not more than four percent by weight, as shown by Minute Book ____, Page ____, of the minutes of the Board of Supervisors of said County and State, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Mississippi."
The affidavit is insufficient to support the conviction but since it is amendable, the case is remanded.
Reversed and remanded.
Lee, P.J., and Gillespie, McElroy, and Rodgers, JJ., concur.