Opinion
No. 36028.
February 11, 1946. Suggestion of Error Overruled March 25, 1946.
1. INTOXICATING LIQUORS.
To sustain conviction of unlawful possession of intoxicating malt liquors, it is necessary that the affidavit allege and proof show an alcoholic content in excess of 4 per cent by weight (Code 1942, sec. 10207).
2. INTOXICATING LIQUORS.
The fact that beer found in defendant's possession may have been intoxicating did not of necessity show that alcoholic content exceeded 4 per cent by weight so as to sustain charge of unlawful possession of intoxicating liquor (Code 1942, sec. 10207).
3. CRIMINAL LAW. Intoxicating Liquors.
In prosecution for unlawful possession of intoxicating liquors, where testimony showed that the beer found in defendant's possession was intoxicating, but did not disclose what percentage of alcohol by weight it contained, refusing defendant's requested instruction submitting to jury the factual issue whether liquor contained over the maximum alcoholic content of 4 per cent was reversible error (Code 1942, sec. 10207).
APPEAL from the circuit court of Jefferson Davis County, HON. J.C. SHIVERS, Judge.
G.L. Martin, of Prentiss, and W.W. Dent, of Collins, for appellant.
The trial court permitted the state to amend the affidavit by striking out the words "7 gallons of malt beer" and inserting instead "malt liquor." The court overruled our demurrer to this amended affidavit. It will be noted that this charge is laid under a videlicet, and the pleader is held thereby.
Sullivan v. State, 67 Miss. 346, 7 So. 275.
Consequently, the affidavit charged that the defendant "did unlawfully and willfully possessed (note possessed) malt liquor," etc. It is respectfully submitted that the affidavit charges no crime known to the law. The affidavit certainly should charge something in understandable English. It need not be perfect in diction nor be graced with ornate verbiage, but how can the words "did possessed" express anything? The defendant had the right to be informed of and to demand the nature and cause of the accusation. Our Court has held that the omission of the auxiliary "did" in a charge vitiates it.
Willis v. State, 113 Miss. 838, 74 So. 677; Constitution of 1890, Sec. 26.
Under Chapter 171, Laws of 1934, Section 10207, Code of 1942, the possession of malt liquor, which is simply beer, is lawful, if it has not more than 4 percent alcoholic content by weight. The affidavit does not charge that the malt liquor alleged found in appellant's possession contained an alcoholic content of more than 4 percent by weight. It makes no mention of any alcoholic content. It seems to have proceeded on the ground that if it was intoxicating, then it was unlawful to possess it. Under a statute regulating the sale of intoxicating liquors, an indictment charging the sale of a certain "malt liquor" but not alleging that such liquor was intoxicating, is insufficient, as the courts could not from their general knowledge say that all malt liquors are intoxicating.
Purity Extract Tonic Co. v. Lynch, 100 Miss. 650, 56 So. 316; Forbert v. State, 179 Miss. 66, 174 So. 248; Fuller v. City of Jackson, 97 Miss. 237, 52 So. 873; Lowe v. City of Jackson, 181 Miss. 296, 179 So. 568; Allred v. State, 89 Fla. 102, 8 So. 56; Eubank v. State, 104 Tex.Crim. R., 286 S.W. 234; Scott v. State (Tex.), 14 S.W.2d 272; State v. Lynch, 5 Boyce Del. 569, 96 A. 32; United States v. DuCournau, 54 F. 138, 139; Commonwealth v. Goodin, 109 Va. 828, 64 S.E. 54; Shaw v. State, 56 Ind. 188; Code of 1942, Sec. 10208; Laws of 1934, Ch. 171, Code of 1942, Sec. 10207; 26 Words Phrases (Per. Ed.), p. 253.
The lower court granted the state the following instruction: "The Court instructs the jury for the State that if you believe from the evidence beyond a reasonable doubt that on the occasion in question the defendant, Levell Hall, did willfully and unlawfully have in his possession intoxicating liquor to-wit, malt liquor, the jury shall return the following verdict, to-wit: 'We, the Jury, find the defendant guilty as charged in the affidavit.'" It is most respectfully submitted that this instruction submitted to the jury no issue whatever and is really a peremptory instruction to find the appellant guilty. The question was not whether the malt liquor was intoxicating, but whether or not the liquor contained an alcoholic content of more than 4 percent by weight. It simply said to the jury, "If you believe he had in his possession intoxicating liquor" or to hold under the videlicet used, "If you believe he had in his possession malt liquor, then you will find him guilty." This in spite of the fact, which must be admitted, that there is no allegation that the malt liquor was over 4 percent alcoholic content by weight. If this instruction is the law of the land, then a man with a bottle of beer about his home is guilty of violating the law and can be fined and jailed. The instruction should have told the jury that if the appellant possessed malt liquor of an alcoholic content of more than 4 percent by weight, then find him guilty. We respectfully submit that this instruction, instead of being a guide to the jury, was confusing and really amounted to and is tantamount to a peremptory instruction to find appellant guilty.
It was error for the court to refuse certain instructions for the defendant. The defendant had a right for the jury to pass upon the question of whether or not this was malt liquor or homemade wine. No matter how strong the case may be for the state on any point, the defendant is entitled to have his version of the case submitted to the jury and this though his version be supported by his testimony alone.
Harris v. State, 72 Miss. 99, 16 So. 360; Leverett v. State, 112 Miss. 394, 73 So. 273; Code of 1942, Sec. 10209.
The court refused certain other instructions for the defendant. It is submitted that these instructions presented to the jury the real issue, for, as we have endeavored to show, there is no crime committed in the possession of malt liquor per se. The crime, if any, is the possession of it if its alcoholic content is more than 4 percent by weight. It appears that the trial judge took the view all the way through the case that the mere possession of malt liquor was the possession of intoxicating liquor regardless of its alcoholic content and the instructions are restricted to that view.
A demurrer was pled to this affidavit, but in order that the trial judge might again have brought to his attention the invalidity of this affidavit, we, out of abundant caution, filed a motion in arrest of the judgment. The court should have sustained this motion in arrest of judgment and appellant should have been discharged.
Hughes v. State, 74 Miss. 368, 20 So. 838; Young v. State, 112 Miss. 769, 73 So. 786; Shipman's Common Law Pleading, p. 188.
The sufficiency of this affidavit and search warrant was challenged. It is respectfully submitted that this warrant is void. Section 23 of the Constitution requires the warrant to "specifically designate" the place. The purpose of this, as we understand it, is that the place and premises only of the particular person suspected of keeping liquor be lawfully searched and not the place of another. "Specifically designate" allows no guesswork. One can't surmise or guess and be specific at the same time.
At the close of the state's case a motion was made for a peremptory instruction. The court reserved his ruling thereon until all of the evidence was in and then overruled the motion. It is submitted that this failure to rule one way or the other when the motion was submitted at the close of the state's evidence was prejudicial to the rights of the defendant. The burden was on the state to make out its case independent of any evidence of the defendant; and to force the defendant then to testify, withholding any ruling, is forcing him then to prove his innocence. We submit this was error.
Warren v. State, 174 Miss. 63, 164 So. 234.
A motion for a continuance was made on the ground that appellant's attorney was absent and in the military service. This motion was overruled. We submit this was error. Every man, no matter who he is, has the right to his own attorney. It is a personal relation and should be respected by the courts unless there is some peculiar situation that controls, and none is here shown. This was the first time the case had been in circuit court and this was the first time this negro had ever been charged with crime. He so testified and it is not disputed. It is true that motions for continuance are largely within the discretion of the court, but we think the lower court was in error in forcing the negro to trial at this term. The war then was nearing its close and in all probability the attorney could be present at the next term; and if not then, then it might be within sound discetion to proceed without his regularly employed attorney.
The verdict and judgment are against the great and overwhelming weight of the competent evidence. There is no reliable proof in the record that this liquor was intoxicating or that it was found on the premises of the appellant. The officers themselves could not say definitely.
See City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785.
The minutes of the circuit court do not show when the court convened nor do they show when the court finally adjourned. The judgment rendered in this case is, therefore, void.
Steverson v. McLeod Lumber Co., 120 Miss. 65, 81 So. 788; Arbour v. Yazoo M.V.R. Co., 96 Miss. 340, 98 Miss. 714, 54 So. 158; Jones v. Williams, 62 Miss. 183; Watson v. State, 166 Miss. 194, 146 So. 122; Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
Affidavit or indictment under Section 2613, Code of 1942, does not have to negative exceptions thereto contained in Sections 2644, 2652, and 10207, Code of 1942, providing for the lawful possession of liquors under certain conditions.
Forbert v. State, 179 Miss. 66, 174 So. 248; Code of 1942, Sec. 2651.
An affidavit or indictment under Sections 2613 does not have to negative that the liquor was not homemade wine authorized under Section 2631, Code of 1942, and Section 10209, Code of 1942, such matters being peculiarly within the knowledge of the accused.
Price v. Haney, 174 Miss. 176, 164 So. 590; Forbert v. State, supra; Code of 1942, Sec. 2651; Mississippi Digest, "Evidence," Key Nos. 93, 94.
The appellant was not entitled to continue because of the absence of his attorney who was in the armed forces, since appellant made no showing as to why the absent attorney was essential and which showing should have been made.
Lamar v. State, 63 Miss. 265; Mississippi Digest, "Criminal Law," Key Nos. 587, 594, and authorities cited thereunder.
Whenever a party relies on legal possession of wine or beer under Sections 10207 and 10209, Code of 1942, he must show the percentage by weight of the alcoholic content of such wine or beer — that such content is 4 per cent or less. This matter is within his peculiar knowledge.
Price v. Haney, supra; Forbert v. State, supra; Mississippi Digest, "Evidence," Key Nos. 93, 94; 22 C.J. 82, Sec. 24.
The affidavit for search warrant and search warrant in this case sufficiently described the place to be searched for intoxicating liquor and gave a description of the route leading to such place. Such description is ample.
Loeb v. State, 133 Miss. 883, 98 So. 449; Matthews v. State, 134 Miss. 807, 100 So. 18.
The finding of the liquor under the search warrant on the premises of appellant was sufficient to give the jury the right to decide whether or not it was on the premises occupied by appellant and the jury were warranted in finding that he was the possessor of such malt liquor found by the said search.
Williamson v. State, 191 Miss. 643, 4 So.2d 220; Quick v. State, 192 Miss. 789, 7 So.2d 887; Brown v. State, 192 Miss. 314, 5 So.2d 426.
Appellant is not entitled to complain about search warrant and affidavit therefor, unless search and findings under the search was on his property.
Brown v. State, supra; Williamson v. State, supra.
Argued orally by G.L. Martin, for appellant, and by Geo. H. Ethridge, for appellee.
Appellant was convicted of unlawful possession of intoxicating liquors. The affidavit charges that he "unlawfully and wilfully possessed intoxicating liquor, to wit, malt liquor."
The testimony showed that the liquor was intoxicating but does not disclose what percentage of alcohol by weight it contained. A constable, who avows familiarity with intoxicants and the processes of manufacture of homemade malt liquors, estimated the potency of the seized liquors as about half that of whisky. He did not reveal the alcoholic content of whisky. He did not have it analyzed but stated, "I believe it would be safe to say it's 40 per cent alcohol, maybe more." Whether he had sampled or tested by smell or taste the liquor exhibited is uncertain. Most of that seized had theretofore been destroyed.
The product inovlved must be classed as malt liquor or beer. Since beer of not more than 4% alcoholic content by weight may be lawfully possessed (Code 1942, sec. 10207), it was necessary that the affiavit allege and the proof show an alcoholic content in excess thereof. The fact that it may be intoxicating does not of necessity show that the aloholic content exceeded 4% by weight. Compare Fuller v. City of Jackson, 97 Miss. 237, 52 So. 873, 30 L.R.A. (N.S.) 1078.
The defendant requested two instructions submitting to the jury the factual issue whether the liquor contained over the maximum content of alcohol. The refusal of these instructions was error, although criticism of the instructions as inartificial and weighted with extraneous matter is not out of place. The case is therefore reversed and remanded.
Reversed and remanded.