Opinion
No. 31346.
April 29, 1935.
ANIMALS.
In prosecution for moving cattle from Louisiana to Mississippi, evidence that copies of necessary federal certificates authorizing such movement were customarily mailed to Mississippi live stock board, and that secretary thereof had been unable to find copy of any certificate issued to defendant, held insufficient for jury in absence of proof of any law or regulation requiring federal authorities to file copies of federal certificates with Mississippi live stock board (Code 1930, section 5412 et seq.).
APPEAL from the circuit court of Adams county.
HON. R.L. CORBAN, Judge.
Lee Calhoun was convicted for willfully moving cattle from Louisiana to Mississippi in violation of the State Livestock Law (Code 1930, section 5412 et seq.), requiring, among other things, a federal certificate authorizing such movement, and he appeals. Reversed and defendant discharged.
Engle Laub, of Natchez, for appellant.
The court excluded from the jury all question of good faith on the part of the defendant arising from circumstances and situations which would induce any person to believe the middle ground or Meringo Island was in Louisiana.
The district attorney in his argument as to whether or not Lee Calhoun had a permit directly commented upon the failure of Lee Calhoun to testify.
Gibbs v. State, 167 Miss. 598; Harwell v. State, 129 Miss. 859; Guest v. State, 158 Miss. 588; Gurley v. State, 101 Miss. 190; Harris v. State, 96 Miss. 379; Prince v. State, 93 Miss. 263.
No offense could be committed by the defendant unless the territory to which the cattle were brought happens to be in the state of Mississippi.
Iowa v. Illinois, 147 U.S. 1, 37 L.Ed. 55; St. Louis v. Rutz, 138 U.S. 226, 34 L.Ed. 941.
There were no signs, warnings or notices to advise anybody that "Meringo Island" was in the state of Mississippi. All of the physical signs evidenced something to the contrary.
Knight, Jr. v. State, 64 Miss. 802, 2 So. 252; 16 C.J. 84.
The peremptory instruction asked for should have been given, because the affidavit in this case does not charge any offense whatsoever. The affidavit charges that the defendant violated the "State Live Stock Law" and an examination of the books fails to disclose any state live stock law. The state did not attempt to show any state live stock law, but attempted to show regulations of the live stock sanitary board.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The state submits the above styled and numbered cause, and says to the court that it does not care to file a brief therein, but that it may be considered by the court upon the record and the brief of appellant which is now on file.
Appellant, Lee Calhoun, was indicted and convicted of unlawfully and willfully moving cattle from the state of Louisiana to a point in the state of Mississippi, called Meringo Island, in violation of the State Livestock Law (Code 1930, section 5412 et seq.), requiring that before cattle may be removed from Louisiana into Mississippi they shall be inspected and found free of ticks, and shall be dipped under the supervision of a bureau inspector, and a federal certificate shall be issued authorizing their movement to a point of destination in Mississippi. From a judgment sentencing the appellant to pay a fine of fifty dollars, he has appealed to this court.
In response to a request by the court for additional briefs on certain points presented in his original brief, counsel for the appellant, for the first time, present an argument that the peremptory instruction requested by the appellant should have been granted for the reason that the proof fails to show that no federal certificate or permit for the removal of the cattle was issued to him.
The proof shows that federal certificates or permits for the removal of cattle from Louisiana to Mississippi must be secured by application to the United States Bureau of Animal Industry, located at Baton Rouge, Louisiana, and that when such a certificate is issued by that office, it is customary to mail a copy thereof to the office of the said bureau located in the Tower building, Jackson, Mississippi, or direct to the secretary of the Mississippi live stock board, whose offices are located in the old capitol building, at Jackson, Mississippi. In the event a copy of such a certificate is received by the office of the Bureau of Animal Industry in Jackson, Mississippi, it is customary to there prepare a further copy and mail it to the office of the state live stock board.
To meet the burden of showing that no federal certificate or permit for the removal of the cattle in question to Meringo Island was issued, the state offered only the testimony of the secretary of the Mississippi live stock board to the effect that he had examined the records of certificates on file in the office of that board in Jackson, Mississippi, and had found no copy of a certificate permitting the appellant to move the cattle into Louisiana from Mississippi. The attorney-general has filed no brief in this cause, and we have not been cited to any law or rule or regulation having the effect of law, which requires the United States Board of Animal Industry, of Baton Rouge, Louisiana, to file in the office of the Mississippi live stock board copies of permits issued for the removal of cattle into Mississippi. Consequently, the proof upon this point is not aided by any presumption; and we think it was insufficient to warrant the conviction of appellant, and that the peremptory instruction requested by him should have been granted.
The judgment of the court below will therefore be reversed, and the appellant discharged.
Reversed and appellant discharged.