Opinion
No. 40243.
November 26, 1956.
1. Intoxicating liquors — indictment charging an unlawful sale — proof of a barter — variance fatal.
Where indictment charged that defendant had willfully and unlawfully sold and retailed whiskey, but State proved that defendant had given prosecuting witness a gallon of moonshine liquor and $1.50 cash in exchange for a car battery, the variance was fatal, and, the peremptory instruction requested by defendant should have been given, and defendant should have been ordered into custody of the proper officer to be held pending action of the grand jury on a proper charge. Sec. 2433, Code 1942.
2. Searches and seizures — defendant could not complain of unlawful search of another's automobile in which prosecuting witness was a passenger.
In such case, where it appeared that after prosecuting witness had obtained whiskey from defendant, such witness and two other prosecuting witnesses were arrested while driving along the highway, and the automobile in which they were driving was searched without a warrant, and the whiskey was found by the arresting officer, and the automobile was not that of the defendant, who did not have it in his possession, and who was not anywhere near the place where the search was made, defendant would not be heard to complain that the search was illegal.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Jasper County; HOMER CURRIE, Judge.
McFarland McFarland, Bay Springs, for appellant.
I. The Court erred in permitting W.E. Pugh to testify concerning a search, and admitted into evidence a one-gallon jug partially filled with homemade whiskey, which was seized in the search of an automobile. The officer did not have a search warrant for the automobile, nor did he establish evidence from a credible person that the automobile was transporting whiskey. State for Use Benefit of Kemper County v. Brown, 219 Miss. 383, 68 So.2d 419.
II. The Court erred in not sustaining the motion for a peremptory instruction for the appellant at the conclusion of all of the evidence. The State failed to prove the transaction under which this indictment was drawn occurred in the First Judicial District of Jasper County, Mississippi.
III. All of the evidence clearly without variance established that the transaction involved a clear barter, and there was not one scintilla of evidence that there was a sale of intoxicating liquor. Woodall v. State, 129 Miss. 854, 93 So. 366.
IV. The Court erred in refusing the instruction for the appellant defining what constituted a sale of intoxicating liquor.
V. The Court erred in refusing to grant the motion of the appellant for a new trial.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. Although we do not admit that the State did not establish probable cause for the search, we would urge upon the Court that that is immaterial here, for the reason that there was no search made of the automobile of the appellant, but of the automobile of third persons who offered no objection to the admission of the testimony in the Court and who were not being tried on the charge laid in the indictment in this case.
II. The State admits that it was not proven by direct testimony that the whiskey was obtained at the home of the appellant, but we submit that there was sufficient circumstantial evidence to prove this point, and certainly it was proven by direct testimony that the home of the appellant was in the First Judicial District of Jasper County. Poore v. State, 205 Miss. 528, 37 So.2d 357; Holloway v. State, 199 Miss. 356, 24 So.2d 857.
III. While the State is not inclined to admit error, we do submit that if the case of Woodall v. State, 129 Miss. 854, 93 So. 366, is still the law in this State, that the indictment in this case charging a sale is not sustained by the proof herein.
IV. We are not urging upon the Court that Woodall v. State, supra, be overruled, but are merely submitting to the Court that the legal distinction between the sale and barter is an artificial one, and that the rules of criminal law of this State should be applied alike to both transactions.
(Hn 1) Under an indictment charging that appellant "did then and there wilfully and unlawfully sell and retail intoxicating liquors, towit: Whiskey," the State proved that appellant gave the prosecuting witness a gallon of moonshine liquor and $1.50 cash in exchange for a car battery. Appellant contends that a barter is not a sale; that there was a fatal variance between the indictment and the proof; and that the peremptory charge should have been given. In Woodall v. State, 129 Miss. 854, 93 So. 366, the accused gave the prosecuting witness a pint of whiskey and $1.00 in cash in exchange for a hog, and this Court held that the statute recognizes the difference between a sale and a barter, and that an indictment charging a sale is not sustained by proof of a barter. The peremptory instruction should have been given and appellant ordered into the custody of the proper officer to be held pending action of the grand jury on the proper charge. Miss. Code of 1942, Sec. 2433; O'Neal v. State, 166 Miss. 538, 146 So. 634.
(Hn 2) Appellant complains that the whiskey introduced in evidence was obtained by an illegal search. After the prosecuting witness obtained the whiskey in the manner just stated, and while driving along the highway with two other prosecuting witnesses, the three of them were arrested, the car searched without a warrant, and the whiskey was found by the arresting officer. The car searched was not appellant's, and he did not have it in his possession, nor was he anywhere near the place where the search was made. Under these circumstances, appellant may not be heard to complain that the search was illegal. Miss. Digest, Searches and Seizures, Key No. 7(26). We find it unnecessary to decide whether the officer who conducted the search had sufficient probable cause to make the search of the car.
The judgment is reversed and appellant held under his appearance bond pending further action of the grand jury.
Reversed and appellant held.
Roberds, P.J., and Kyle, Arrington and Ethridge, JJ., concur.