Opinion
No. 35861.
April 23, 1945. Suggestion of Error Overruled May 14, 1945.
1. INDICTMENT AND INFORMATION.
Failure to allege in indictment or affidavit that an act was unlawfully done does not render the charge invalid, if the act charged is unlawful under all circumstances.
2. INTOXICATING LIQUORS.
Instruction in prosecution for having intoxicating liquor in one's possession which undertakes to define the offense should use the word "unlawfully" since under some conditions certain intoxicating liquors may be lawfully possessed, but omission to do so is not reversible error where the intoxicating liquor in question is whisky (Code 1942, secs. 2613, 2634-2636).
3. INDICTMENT AND INFORMATION.
Since possession of whisky is unlawful under all circumstances, so far as state laws are concerned, affidavit charging possession thereof was not fatally defective for failure to charge that such possession was unlawful (Code 1942, secs. 2613, 2634-2636).
4. INTOXICATING LIQUORS.
Since possession of whisky is unlawful under all circumstances, so far as state laws are concerned, in prosecution for possession of whisky, instruction for state was not erroneous because it did not require jury to believe that such possession was unlawful (Code 1942, secs. 2613, 2634-2636).
5. INTOXICATING LIQUORS.
Recitals in affidavit for search warrant and in search warrant that possession of whisky by accused was in "violation of law" were equivalent to a recital that possession was "unlawful" (Code 1942, sec. 2613).
6. SEARCHES AND SEIZURES.
Affidavit for search warrant and search warrant which identified with reasonable certainty the premises to be searched were sufficient.
APPEAL from the circuit court of Forrest county, HON. F.B. COLLINS, Judge.
C.F. Pittman, of Hattiesburg, for appellant.
We attack the affidavit for the search warrant and the search warrant based thereon and the affidavit charging the possession of whiskey for the reason that they leave out entirely, all of them, any allegations to the effect that the alleged possession of whiskey, by the appellant, was unlawful. Unless the affidavit and all proceedings follow the statute literally, the whole thing in all subsequent proceedings is void.
Turner v. State, 133 Miss. 738, 98 So. 240; Miller v. State, 129 Miss. 774, 93 So. 2; Williams v. State, 129 Miss. 469, 92 So. 584; Webb v. State, 143 Miss. 92, 108 So. 442; Morton v. State, 136 Miss. 284, 101 So. 379-380; Forbert v. State, 179 Miss. 66, 174 So. 248; Banks v. City of Jackson, 152 Miss. 844, 120 So. 209; Estes v. State, 152 Miss. 555, 120 So. 444; Code of 1942, Sec. 2614; Constitution of 1890, Sec. 23.
When the indictment is void, advantage may be taken of it anywhere and at any time and in any court.
Reed v. State, 171 Miss. 65, 156 So. 650.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The affidavit for search warrant and search warrant appear to be regular in all respects.
Banks v. City of Jackson, 152 Miss. 844, 120 So. 209; Code of 1942, Secs. 2616, 2617.
If an act be unlawful under all circumstances, an indictment or affidavit charging its commission will not be invalid because of a failure to aver that it was unlawfully done.
Irby v. State, 91 Miss. 542, 44 So. 801.
In a prosecution for selling whiskey by the quart in a prohibition county, it was unnecessary that the affidavit should allege that the sale was "unlawful."
Irby v. State, supra.
In a prosecution for having intoxicating liquors, an instruction defining the offense should use the word "unlawful" or "unlawfully," as under some conditions some intoxicating liquors may be lawfully possessed; but such omission is not reversible error in a case where the intoxicating liquor in question was whiskey, as it is not lawful for a person not an officer to have such liquor at all.
Falkner v. State, 134 Miss. 101, 98 So. 345.
The appellant did not testify in the lower court nor was there any evidence introduced in his behalf. The witnesses for the state testified that the appellant admitted that it was his whiskey.
Ross v. State, 185 Miss. 378, 189 So. 526.
The appellant, Toye Gilbert, was convicted of the unlawful possession of intoxicating liquor, upon an affidavit charging that he, "on or about the 10th day of June, 1944, in the county aforesaid, did have in his possession whiskey, against the peace and dignity of the State of Mississippi."
The affidavit neither charged, nor did the instruction given on behalf of the state require the jury to believe, that the defendant had in his possession whiskey "unlawfully"; but insofar as the affidavit is concerned, it was held in the case of Irby v. State, 91 Miss. 542, 44 So. 801, that if an act be unlawful under all circumstances, the omission to allege in an indictment or affidavit that it was unlawfully done would not render the charge invalid. And as to the failure of the instruction complained of to require the jury to believe that the defendant "unlawfully" had in his possession the whiskey, it was held in the case of Falkner v. State, 134 Miss. 101, 98 So. 345, that while an instruction in a prosecution for having intoxicating liquors in one's possession, and which undertakes to define the offense, should use the word "unlawfully," in view of the fact that under some conditions certain intoxicating liquors may be lawfully possessed, the omission to do so is not reversible error in a case where the intoxicating liquor in question is "whiskey." The exceptions to Sec. 2613, Code 1942, making it unlawful to keep, have in possession, sell or give away, intoxicating liquor, are contained in Secs. 2634, 2635 and 2636 thereof, prescribing how licensed retail druggists in this state may sell under certain conditions pure alcohol for medicinal purposes; grain alcohol to chemists and bacteriologists engaged in scientific work; and wine to be used for sacramental purposes. And they further provide that no sale of pure alcohol for medicinal purposes shall be made except upon the written prescription of a licensed and practicing physician of this state. No exception to the general statute, Sec. 2613, has made the possession of whiskey lawful under any circumstances.
Therefore, since the possession of what is commonly known as "whiskey" is unlawful under all circumstances, so far as the state laws are concerned, it follows that it was unnecessary that either the affidavit should charge, or the instruction for the state should require the jury to believe, that the defendant "unlawfully" had in his possession whiskey, for the reason that if the jury believed from the evidence, beyond a reasonable doubt, that he had whiskey in his possession, as charged in the affidavit, there would be no basis for the jury to find that his possession thereof was lawful, in view of the fact that the undisputed proof disclosed that the quantity found in his possession was seven quarts and thirty-seven pints of whiskey — an amount somewhat in excess of what a physician would likely prescribe for a patient to have on hand at one time, even if it should be assumed that the physician was authorized by law to prescribe whiskey for use.
The affidavit for the search warrant and the search warrant both recite that the possession of the whiskey by the accused was "in violation of law," which is, of course, the equivalent of a recital that his possession was "unlawful." And we are also of the opinion that these documents identify with reasonable certainty the premises that were to be searched.
The judgment of conviction and the sentence imposed by the trial court must, therefore, be affirmed.
Affirmed.