Opinion
No. 32616.
May 17, 1937.
1. CRIMINAL LAW.
In prosecution for unlawfully possessing wine, questions involving admissibility of testimony, regarding circumstances under which wine was obtained and use made thereof before grand jury by circuit judge, were not presented for review in absence of motion to quash indictment or plea in abatement based on undue influence before grand jury.
2. SEARCHES AND SEIZURES.
Where circuit judge directed deputy sheriff to obtain wine and deputy went to defendant's place of business and informed defendant that he desired to purchase wine for circuit judge, and defendant told deputy that if judge wanted it to take it without paying for it, manner in which wine was secured did not violate unreasonable search or seizure provision of Constitution (Const. 1890, section 23).
3. INTOXICATING LIQUORS.
In charging offense of unlawful possession of wine, it is not necessary to negative exception of homemade wine, and state is not required to prove that wine was not homemade wine used for domestic and household purposes only (Laws 1934, chapter 171; Code 1930, section 1973 et seq.).
4. INTOXICATING LIQUORS.
In prosecution for unlawful possession of wine, omission of word "unlawful" in instruction to jury held not prejudicial to defendant where bottle containing wine tended to show that it was not homemade and there was no evidence suggesting that it was homemade wine, since possession of wine containing more than 15 per cent. of alcohol by weight was necessarily unlawful (Laws 1934, chapter 171; Code 1930, section 1973 et seq.).
APPEAL from the circuit court of Forrest county. HON.W.J. PACK, Judge.
Earl L. Wingo, of Hattiesburg, for appellant.
The indictment charged the appellant with the crime of wilfully and unlawfully having in his possession wine of an alcoholic content greater than four per centum by weight; but the instruction to the jury merely stated that if they believed from the evidence in the case beyond a reasonable doubt that the defendant, Forbert, had in his possession wine of an alcoholic content of more than four per centum by weight, then you will find the defendant guilty as charged.
In other words, the jury was not instructed on behalf of the state or by any instruction whatever that the burden was upon the State to prove not merely that the appellant had in his possession wine of an alcoholic content of more than four per centum by weight, but that such possession, if at all, must have been wilful and unlawful.
Stepp v. State, 95 Miss. 838, 132 Miss. 132.
A study of the history of our state prohibition laws enacted in the past thirty years reveals the fact that the manufacture and possession of home-made wine for domestic or household purposes has never been, and is not now, prohibited by law.
Section 1622, Code of 1892; Chapter 100, Laws of 1896; Section 1791, Code of 1906; Chapter 113, Laws of 1908; Section 2113, Hemingway's Code; Chapter 103, subd. 5, Laws of 1916, being Section 2155, Hemingway's Code; Chapter 189, sec. 12, subd. 4, Laws of 1918.
There being no law prohibiting the possession of home-made wine for domestic purposes, even though this home-made wine is intoxicating, the appellant should not have been found guilty in this case, unless the jury believed that the intoxicating quality of the wine was due to the addition of alcohol, and not due to the natural fermentation of the wine. But the lower court committed the error of refusing the appellant an instruction submitting this question to the jury; the court going upon the theory that, if the wine found in the possession of appellant was intoxicating, then he was guilty as charged under the law.
In the case at bar there was no proof offered by the state to show anything other than that the wine in question contained an alcoholic content greater than four per centum by weight.
Certainly the appellant was entitled to a peremptory instruction of not guilty. This is true because the manner in which the two bottles of wine were offered in evidence over the objection of appellant was illegal and their introduction incompetent and all testimony in regard thereto wholly inadmissible.
Section 23 of the Constitution; Polk v. State, 142 So. 480; Orick v. State, 105 So. 465; Iupe v. State, 105 So. 520; Butler v. State, 101 So. 193.
Our court has constantly held that section 23 of the Constitution protects the citizen from unreasonable searches and unreasonable seizures, and certainly this man's constitutional rights were violated and trampled upon during every step and stage of the trial of the case at bar, and even before an indictment was rendered against him.
Certainly it could not have been argued that the appellant was denied substantial rights when it is admitted in the record that the circuit judge held the two bottles of wine before the eyes and persons of the grand jury and urged an indictment. In support of this proposition, while there was no motion qualifying an indictment, we think the following is applicable:
State v. Owen, 126 So. 25; Welch v. State, 8 So. 673; Wilson v. State, 138 So. 225; State v. Barnett, 541 So. 313.
Our Supreme Court has constantly held that the law prohibits outsiders from taking any part in the deliberations of the grand jury, and that the investigations of the grand jury should be confined strictly to the testimony of witnesses having knowledge of facts touching matters under inquiry.
Furthermore, there has long been a law that no indictment is legal where its procurement was brought about through the exercise of undue outside influence. W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is not prejudicial error to omit the word "unlawfully" in an instruction in a prosecution for the unlawful possession of intoxicating liquors, since all possession of such liquor is unlawful, except in the hands of an officer.
Bufkin v. State, 134 Miss. 1, 98 So. 452; Falkner v. State, 134 Miss. 101, 98 So. 345.
Possession of home-made wine, becoming such through own fermentation and for household purposes is not unlawful under our criminal statutes. This statute was construed in Stepp v. State, 132 Miss. 132, 95 So. 838. But in charging the unlawful possession of wine, or other intoxicating liquor, it seems that the state is not required to negative the exception.
Frazier v. State, 106 So. 443.
If the state is not required to negative the exception in the indictment, its proof is required to rise no higher and it is not incumbent upon the state to prove that the wine was not such as is exempted by statute.
There is nothing in the record anywhere to suggest an issue for the jury as to whether this wine was home-made, etc., or otherwise manufactured. Since there was no issue by the evidence, it would be improper to raise it by instructions. This is not permissible.
Hanna v. State, 168 Miss. 352, 151 So. 370; Singleton v. State, 71 Miss. 782, 16 So. 295; Boyd v. State, 84 Miss. 414, 36 So. 525.
If the wine here was "home-made" wine, it was an affirmative defense. It is no part of the State's case to show that it was not such.
Holley v. State, 144 Miss. 726, 111 So. 139; Miller v. State, 105 Miss. 777, 63 So. 269.
Nothing appearing of record to show that this motion was ever called to the attention of the court, and no order of the court thereon, there is nothing for this court to review.
Boatwright v. State, 143 Miss. 676, 109 So. 710; Sherrod v. State, 90 Miss. 856, 44 So. 813; Clinton v. State, 163 Miss. 435, 142 So. 17.
Was appellant entitled to a directed verdict? This argument all goes back to the remarks of the trial judge in charging the grand jury about the possession of wine of greater alcoholic content than allowed by law. It is said that his remarks constituted an outside influence which brought about this particular indictment and hence the indictment was void. In this argument, we believe appellant has possibly misconstrued his rights, if he ever had any in this respect. The matter referred to is such as to constitute a defect in the indictment which was de hors the record and this can only be reached by motion to quash.
Gates v. State, 71 Miss. 874, 16 So. 342; State v. Coulter, 108 Miss. 764, 61 So. 706; Chandler v. State, 143 Miss. 312, 108 So. 723; State v. Mitchell, 95 Miss. 130, 48 So. 963; Section 1207, Code of 1930.
Even a studied entrapment is no defense.
French v. State, 149 Miss. 684, 115 So. 705.
Appellant was indicted and convicted in the circuit court of Forrest county on a charge of unlawful possession of wine of an alcoholic content greater than four per centum by weight.
The proof shows that just shortly before the November term of the circuit court of Forrest county convened, the circuit judge directed a deputy sheriff to go out and get him a couple of bottles of wine. The deputy went to appellant's place of business, where food, wine, and beer were sold, and informed him that he desired to purchase a bottle of wine for the circuit judge. Appellant told the deputy that if the judge wanted it to take it on without paying for it, and the deputy when secured two bottles and delivered them to the circuit judge. In his charge to the grand jury, which was convened a few minutes thereafter, the judge exhibited these two bottles of wine to the jury and informed them that they were labeled as containing from nineteen to twenty-one per centum alcohol, and that the possession for sale or the sale of such wine was unlawful. Thereafter these bottles of wine were delivered to and analyzed by a chemist, who testified that one of them contained 19.75 per centum alcohol and the other 20.02 per centum by volume, and that both of them contained more than fifteen per centum alcohol by weight. One of the bottles was labled "Port," and the other "Italian Girl, 100% Pure California Fresh Grape Wines, Angelica. Old Reliable, Distributor."
Appellant assigned as error the failure of the court to exclude the testimony of two deputy sheriffs as to appellant's possession of the wine in question, and the circumstances under which it was secured, and the refusal of a peremptory instruction requested by him. The argument as to the admissibility of the testimony of the two deputies seems to be based upon the theory that the circumstances under which the wine was obtained, and the use made thereof before the grand jury by the circuit judge, rendered evidence in reference thereto inadmissible. Aside from the fact that the record does not disclose that the circuit judge said anything in his charge to the grand jury that directed particular attention to the appellant as a violator of the laws dealing with the possession and sale of intoxicating liquors, there was neither a motion to quash the indictment nor a plea in abatement based upon any undue influence before the grand jury, and consequently such matters, which were de hors the record, are not here presented.
The further argument that the peremptory instruction requested by appellant should have been granted seems to be based upon some theory that, by reason of the manner in which the wine was secured, there was a violation of section 23, Constitution of 1890, guaranteeing the security of the people in their persons, houses, and possessions, from unreasonable seizure or search. We fail to see wherein this constitutional provision is involved. There was no search or seizure of appellant's person, premises, or possessions, and no suggestion of coercion in securing the wine.
Appellant also complains of the only instruction given to the jury, which reads as follows: "The court charges the jury that if from the evidence in this case you believe beyond a reasonable doubt that the defendant Forbert had in his possession wine of an alcoholic content of more than four per centum by weight, then you will find the defendant guilty as charged."
Chapter 171, Laws 1934, provides that it shall be lawful in this state to transport, store, sell, distribute, possess, receive, or manufacture wine and beer of an alcoholic content of not more than four per centum by weight, and this act expressly reserved the right of every person to make homemade wine for domestic or household uses, free from all restraint. While the indictment herein cannot accurately be said to be based upon this act of 1934, that act is necessarily involved as embodying a modification of the general provisions of chapter 38 of the Code of 1930 (section 1973 et seq.) prohibiting the possession and sale of intoxicating wines and liquors, and the state fully met the burden of proving that the alcoholic content of the wine in question was more than four per centum be weight.
The criticism of the instruction, however, is that it does not require the jury to find that the possession of the wine was willful and unlawful, and did not submit to the jury the issue of whether or not the wine in question was homemade, and used for domestic and household purposes only. This act and section 1974, Code 1930, prohibit the possession of all wine of an alcoholic content of more than four per centum by weight, except homemade wine used for domestic and household purposes only; and in charging the offense of unlawful possession of wine under these sections it is not necessary to negative the exception of homemade wine, and the state was not required to prove that the wine in question was not homemade wine used for domestic and household purposes only. In Easterling v. State, 35 Miss. 210, it was held that "the rule is, that when a fact is peculiarly within the knowledge of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence, or of acting according to law, will not render it incumbent on the other side to prove the negative." This rule was followed in Thomas v. State, 37 Miss. 353, and Fairly v. State, 63 Miss. 333, and is recognized and announced in Wharton on Criminal Evidence, Vol. 1 (10 Ed.), p. 349, in language substantially as follows: In cases where the subject of the exception is peculiarly within the defendant's knowledge and the negative cannot be proved by the prosecutor, the burden of proving the affirmative may be on the defendant as a matter of defense, and where the affirmative is peculiarly within the knowledge of the party charged, the presumption of law in favor of innocence is not allowed to operate, as it were, to make a prima facie case in the affirmative for the defendant, but the general rule is that he who asserts the affirmative is to prove it and not he who avers the negative.
The labels which were on the bottles containing the wine tended to show that it was not homemade, and there is not a scintilla of evidence even suggesting that it was homemade wine, a fact, if it were a fact, which was peculiarly within the knowledge of the defendant, so that he would have had no difficulty in showing it. On the evidence in this record, the possession of the wine containing more than fifteen per centum of alcohol by weight was necessarily unlawful, and consequently appellant could not have been prejudiced by the omission of the word "unlawful" in the instruction to the jury.
Affirmed.