Opinion
No. 38588.
January 19, 1953.
1. Trial — undisputed testimony not unreasonable — jury may not disregard.
A jury has no right to arbitrarily disregard evidence that is uncontradicted and not unreasonable or improbable on its face, and where the direct testimony of all the witnesses for the defense was uncontradicted and was not so unreasonable or highly improbable as to be unworthy of belief, and, if true, showed that no crime had been committed, such testimony must prevail as against mere circumstantial evidence to the contrary.
2. Trial — circumstantial evidence — criminal procedure.
A conviction may be had on circumstantial evidence alone when by it guilt is proved beyond a reasonable doubt, but before such evidence can be said to prove guilt beyond a reasonable doubt it must exclude every other reasonable hypothesis than that of guilt.
3. Trial — circumstantial evidence — criminal procedure.
In a criminal prosecution assuming all to be proved in behalf of the State which the evidence tends to prove in that behalf, if there yet remains within the evidence, or the want thereof, some other reasonable hypothesis consistent with innocence, such evidence is insufficient to sustain a conviction, and particularly is this true when the other reasonable hypothesis has been proved by uncontradicted, reasonable and not improbable direct testimony.
Headnotes as approved by Kyle, J.
APPEAL from the circuit court of Scott County; W.E. McINTYRE, SR., Judge.
Frank F. Mize and W.D. Conn, Jr., for appellant.
The material and undisputed facts are that Oakes Drive Inn was a combination place of business and a place of residence on Highway 80 about 4 miles west of Morton. Appellant and her husband made their home there. Two of the officers on the execution of the liquor search warrant found 49 cans of beer in a refrigerator in the residence part of the building. Other officers went to the rear of the building and found three cans of Falstaff beer in the process of being consumed by parties in an automobile. The party who had the beer outside, testified that he had bought the three cans of beer in Jackson. There is not one single bit of evidence to show that either appellant or her husband or any one else "distributed" any beer to any one in Scott County. If it follows that merely because someone on the outside is drinking beer, someone in the building is guilty of "distributing" beer, then who is the guilty party? Appellant and her husband were present and if one of them is guilty then which of them is the offending party. The indictment said it was Mrs. Fortenberry, but there is no proof to this effect. The indictment itself is no evidence of guilty. On the other hand, the evidence distinctly negatives any transfer of possession, whether by "distribution", sale, barter or donation. The district attorney tried to build himself another Dubose case, 54 So.2d 756, but, in this, we submit, he has made a dismal failure.
The statute, Sec. 10208, Code 1942, authorizes the possession of beer in a dry county for personal use, City of Amory v. Yielding, 203 Miss. 265, 34 So.2d 726, and being lawful to possess under such circumstances, the quantity, whether much or little, is of no consequence. Washington v. City of Jackson, 112 Miss. 171, 72 So. 893, and cases therein cited.
Since the mere possession of 49 cans of beer is not unlawful per se, what has the State shown to make its case of "unlawful distribution"? Only that the officers found three opened cans outside the building in the possession of others and for which a reasonable explanation has been given by the one who bought them and he had bought them in Jackson on the afternoon of the search, February 9, 1952. No effort was made by the State to negative or dispute this explanation.
It is true that the district attorney, with the approval of the court, ran into the evidence that there were a couple of beer signs on the premises, but it is undenied that these signs had been there for a long time and had not been taken down after beer was outlawed in the county; that there were 20 to 30 empty beer cases stacked up in the dance hall, but it is likewise not denied that they had been there for a long time and had not been returned to the distributors for refund of cash deposits; and that the officers found "a number of whisky bottles" — "a hundred or more" or "200 empty whisky bottles" according to another witness. What this latter testimony about whisky bottles could have to do with the "unlawful distribution of beer" is beyond us, unless the State was trying to convict on general appearances. It was a case of where, being unable to sustain the charge of the indictment, the State decided to "throw the book" at her and hope that by burying her under an avalanche of appearances, a guilty verdict would be returned. If empty whisky bottles is evidence of the unlawful distribution of beer, then every school and college in the state maintaining a football stadium is in the beer distributing business, if what is generally reported be true. The highly prejudicial nature of such evidence is well known, and when such incompetent evidence is knowingly used, it becomes another case where a prosecutor has been willing to cut a corner or take a short cut in order to gain a conviction, and by just so much are the basic and fundamental rights of all the people whittled away if he is upheld in it.
If a "distribution of beer" has been shown in this case, who did the distributing. Both Mrs. Fortenberry and her husband were present in their home. We do not concede that any distribution has been shown, but if it should be so held, then as between the husband and the wife, the presumption would be that the husband did it, in the absence of any evidence rebutting such presumption. This Court has consistently held that there is a prima facie presumption that liquor in the joint possession of husband and wife is under the control of the husband. The evidence in this case shows, and it is undisputed, that the beer was in the refrigerator for the personal use of appellant and her husband. There was an undisputed joint possession.
As illustrating this principle of law, see Dykes v. State, (Miss.), 164 So. 405.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
This case, in my opinion, is a case where the circumstances all taken together warrant the belief of the jury in their finding by their verdict that the law was violated and that it is governed by a similar case, so far as principle is concerned, Dubose v. State, 212 Miss. 521, 54 So.2d 756, in which case the Court had occasion to review another case where it was likewise claimed that the evidence was insufficient because it was lawful to possess beer in Mississippi for personal use regardless of the election and the law permitting it for personal use. In this Dubose case, the Court stated that, "Testimony for appellant raised issues of fact, the most interesting of which was that she kept the beverage for her personal use, which involved a rather enlarged daily requirement. The jury must have discounted this explanation, as well as the testimony of the employee who indicated in his explanation his purpose to make a gift of the three cans of beer from his employer's private supply, and all this without her knowledge or permission and in her presence. We have not, of course, any opinion to express as to the reasonableness of this defense. We say merely that this was an issue to be decided by the jury."
So likewise, I contend here, that the circumstances and testimony, taken all together, are sufficient to discredit the appellant's theory and to authorize the jury's verdict.
The appellant, Mrs. Houston Fortenberry, was indicted, tried and convicted in the circuit court of Scott County on a charge of unlawfully distributing beer of an alcoholic content of not more than four percentum by weight, and was sentenced to pay a fine of $500 and serve ninety days in the county jail. From that judgment she prosecutes this appeal.
The State introduced in evidence the order of the board of supervisors of Scott County adopted on September 7, 1950, after the holding of an election on the question, prohibiting the sale of beer in the county.
John S. Williams, the sheriff, testified that on February 9, 1952, he obtained a search warrant from a justice of the peace authorizing the search of the building and premises occupied by the appellant and her husband on U.S. Highway No. 80, approximately four miles west of Morton, known as Oaks Drive Inn, where it was alleged that intoxicating liquor was being stored, kept and offered for sale in violation of the law; that he proceeded to the Oaks Drive Inn, served the search warrant upon the appellant and made a search of the premises; that he found 49 cans of assorted brands of beer in a refrigerator, in a small room near the kitchen, and 20 or 30 empty beer cases in the dance hall of the Inn, and a large number of empty whiskey bottles outside of the building on the ground. There were no other articles in the refrigerator in which the beer was found. There was another refrigerator in the kitchen. There were two beer signs posted in front of the building. The sheriff stated that there were two automobiles in the yard near the rear entrance. Three persons were seated in one of the automobiles, each of whom had in his hand a can of beer. Other officers participating in the search were Bob Gray, a deputy sheriff, Cliff Everett, night marshal of the Town of Morton, and Earl Turner, constable of Beat 3.
Bob Gray testified that he went around to the back side of the building as soon as he arrived at the Inn. He saw the three boys sitting in the automobile and drinking Falstaff beer. He took possession of the three cans of beer. They were cold and frosted outside and had just been opened. Another automobile was driven into the back yard of the Inn about the time the officers arrived. Gray stated that after taking possession of the three cans of beer he entered the building and participated in the search of the building. The night marshal and constable also testified. Their testimony was substantially the same as that of the sheriff.
Houston Fortenberry, the husband of the appellant, testified as the first witness for the appellant. He stated that he and his wife had operated the Oaks Drive Inn since 1949; that prior to the election in which the sale of beer had been prohibited in Scott County he and his wife had sold beer at the Inn; that they had sold no beer since the court handed down its decision sustaining the validity of the order of the board of supervisors prohibiting the sale of beer in the county; that the empty beer cases found in the dance hall had been stored there for several months, and that the beer advertisements posted on the outside had been there a long time. He stated that when the officers arrived he was standing in front of the Inn, and that Mrs. Fortenberry was seated on a couch in the bedroom. There was an automobile at the rear entrance which came from Jackson, and another automobile arrived about the time the officers arrived, which was going westwardly toward Jackson. He stated that neither he nor Mrs. Fortenberry had delivered any beer to the men who were seated in the automobile drinking beer when the officers arrived. He stated that both he and his wife drank beer, and that the beer found in the refrigerator was beer that they had on hand to drink themselves; that the beer was kept in the refrigerator in which food was kept, and that the old refrigerator in the kitchen had not been used during the last three years. He admitted that the license to operate the Oaks Drive Inn was issued in the name of Mrs. Fortenberry, and that she owned and operated the business.
Three other witnesses testified that they were accustomed to visit in the home of the defendant, and that the old refrigerator in the kitchen was out of order.
Claud Westerfield testified that he lived about two miles east of Morton and that he was at the Oaks Drive Inn when the officers arrived; that he had been in Jackson with three other boys during the forenoon, and that he had purchased three cans of Falstaff beer in Jackson to take home with him; that he had picked up another passenger on his way home, who was drunk; that he stopped at the Inn to enable one of the boys to purchase a package of cigarettes; that while he was in the rest room in the Inn the boys in his automobile opened the three cans of beer that he had purchased in Jackson and were drinking the beer when the officers arrived. He stated that he did not get any beer from Mrs. Fortenberry.
Mrs. Houston Fortenberry, the appellant, testified that she had operated the Oaks Drive Inn since 1949; that she sold drinks and sandwiches and hamburgers and other things to eat, and operated a dance hall; and that she had sold beer until the sale of beer was voted out. She stated that the beer signs posted near the entrance to the building had been posted there by the beer people. She stated that the refrigerator in which the beer was found when the search was made was the refrigerator in which food was kept, and that the other refrigerator in the kitchen was broken down. She stated that she and her husband drank beer, but that she had not sold or distributed any beer since the election. She stated that two of the boys who were in the automobile when the officers arrived had come into the cafe to purchase a package of cigarettes and a sandwich, but that neither she nor her husband had delivered any beer to them.
The first point argued by the appellant's attorneys in their brief on this appeal is that the court erred in refusing to grant a peremptory instruction requested by the defendant directing the jury to return a verdict of not guilty.
We think that the peremptory instruction should have been granted. And, in view of the conclusion that we have reached on that point, it will not be necessary for us to consider the other points argued by the attorneys in their brief.
(Hn 1) The evidence relied upon by the State to prove the charge alleged in the indictment, was entirely circumstantial. The State offered no direct proof to show that the defendant had distributed, sold or delivered beer to any of the boys who were seated in the automobile near the rear entrance of the building at the time the officers arrived; and there was no proof to show that the three cans of beer which the deputy sheriff found in their possession had been obtained from the Oaks Drive Inn. Both the defendant and her husband testified that no beer had been sold or delivered to the boys after they arrived at the Inn. On the contrary, the defendant's witness, Claud Westerfield, testified that he had purchased the three cans of beer in Jackson and had put them in a paper bag to carry home with him, and that the other occupants of the automobile had taken the beer from the paper bag while he was in the rest room of the cafe. Westerfield's testimony was uncontradicted, and it cannot be said that it was so unreasonable or so highly improbable as to be unworthy of belief. The testimony, if true, showed that no crime had been committed. In the case of McLeod v. State, 140 Miss. 897, 105 So. 757, this Court said that the jury has no right to disregard arbitrarily evidence that is uncontradicted and not unreasonable or improbable on its face.
In the case of Williams v. State, 95 Miss. 671, 49 So. 513, the Court said: "It is elementary law that (Hn 2) a conviction may be had on circumstantial evidence alone when by it guilt is proven beyond a reasonable doubt; but it is also elementary that, before such evidence can be said to prove guilt beyond a reasonable doubt, it must exclude every other reasonable hypothesis than that of guilt." This rule was first clearly announced in this State in the case of Algheri v. State, 25 Miss. 584, and has since been uniformly adhered to. Permenter v. State, 99 Miss. 453, 54 So. 949; Williams v. State, supra; Simmons v. State, 106 Miss. 732, 64 So. 721; Harris v. State, 153 Miss. 1, 120 So. 206.
It may be readily conceded that the testimony of the officers was sufficient to prove beyond a reasonable doubt the facts testified to by the officers; and yet, we think that it cannot be said that proof of those facts was sufficient to establish the defendant's guilt beyond every reasonable doubt, and to the exclusion of every other reasonable hypothesis. The weakness of the State's case was not due to the fact that the State's proof was insufficient to prove beyond a reasonable doubt the facts testified to by the officers, but to the fact that, (Hn 3) "assuming all to be proved in behalf of the State which the evidence tends to prove in that behalf, there remains within the evidence, or the want thereof, some other rational hypothesis consistent with innocence," the hypothesis that the three cans of beer which the officers found in the possession of the boys in the automobile had been purchased by them in Jackson or elsewhere before they arrived at the Inn.
We are of the opinion that under the rule stated above, the evidence in this case is not sufficient to sustain a conviction; "that while it produces a strong suspicion of guilt, it does not establish the affirmative of the ultimate issue beyond every reasonable doubt." Johnson v. State (Miss.), 198 So. 554. The judgment of the lower court is therefore reversed and the appellant is discharged.
Reversed and the appellant discharged.
Roberds, P.J., and Holmes, Arrington, and Ethridge, JJ., concur.