Opinion
No. 33120.
March 14, 1938.
1. INTOXICATING LIQUORS.
Under statutes prohibiting possession of liquor except wine containing not more than 4 per cent. of alcohol by weight, evidence that accused believed wine in his possession did not contain more than 4 per cent. of alcohol by weight was inadmissible (Code 1930, section 1974; Laws 1934, chapter 171).
2. INTOXICATING LIQUORS.
Under statutes prohibiting possession of liquor except wine containing not more than 4 per cent. of alcohol by weight, intent of possessor of wine is immaterial if wine contains prohibited amount of alcohol (Code 1930, section 1974; Laws 1934, chapter 171).
APPEAL from the circuit court of Hinds county. HON. J.P. ALEXANDER, Judge.
Jaap Higgins and Louise Melton, all of Jackson, for appellant.
Appellant has assigned as error the refusal of the court to admit the evidence offered by the appellant that he had made diligent inquiry and believed that the wine he possessed was wine of less than four per cent alcohol by weight and, therefore, legal in the State of Mississippi.
We presume the court will take judicial notice that the legislature at its session of 1934 materially modified the prohibition laws of the state of Mississippi, and permitted a person to have in his possession wine of not more than four per cent alcoholic content by volume. This being true, the possession of wine is not of itself unlawful unless the liquid contained more than four per cent of alcohol by volume.
King v. State, 66 Miss. 503; King v. State, 58 Miss. 737.
We submit that it is elementary law that there can be no crime without a criminal intent.
12 Cyc. 148; Duncan v. State, 7 Humphreys (Tenn.) 148.
All crime exists, primarily in the mind. A wrongful act and a wrongful intent must concur, to constitute what the law deems a crime.
Gordon v. State, 52 Ala. 308, 23 Am. Rep. 575; 12 Cyc. 148; Miles v. State, 99 Miss. 165, 54 So. 946; Joslyn v. State, 75 Miss. 838.
When a crime is clearly proved to have been committed by a person charged therewith, the question of motive may be of little or no importance, but criminal intent is always essential to the commission of a crime.
People v. Molineux, 168 N.Y. 264; Blackstone, Chitty Book 4,
We submit that the very crux of this case is whether or not the wine was intoxicating, and that it was the duty of the city to prove it intoxicating before the jury could do otherwise than acquit, and that this instruction, which tells the jury that it was not in their province to decide whether or not the liquor was intoxicating is of itself reversible error.
We further respectfully submit that the words "under his control" go further than the statute under which this prosecution is brought, to-wit, Section 1974, of the Mississippi Code of 1930, which does not use the words "under his control," but which is in the following language: "If any person shall sell or barter, or give away or keep or have in his possession, except as hereinafter authorized, any vinous, alcoholic, malt, intoxicating or spirituous liquor, or intoxicating bitters or drinks, which if drunk to excess will produce intoxication," etc.
We submit that if this case was correctly tried, then there can be no defense for any man on whose premises intoxicating liquors are found. If a person's home is raided and a gallon of whiskey found, it will be idle for him to argue that he was not at home and that some other person having access to the house had placed the liquor there.
John G. Burkett, of Jackson, for appellee.
Appellant assigns as error the action of court in sustaining the objections to the testimony of appellant about what he had been told with reference to the legality of keeping wine in his possession. The action of the court was entirely proper, for this testimony was hearsay, pure and simple.
Appellant also assigns as error the action of the court in refusing to allow him to testify about his belief as to whether or not the wine in question was intoxicating, or, in other words, to testify about his good faith in the matter. This action of the court was proper under the rulings of this court in several cases heretofore decided.
Knight v. State, 64 Miss. 802, 2 So. 253; King v. State, 66 Miss. 502, 6 So. 188; Bacot v. State, 94 Miss. 225, 48 So. 228; 16 C.J. 76.
There is a well recognized distinction between action malla in se and malla prohibita. Under the latter it is well settled that criminal intent formed no part or element of the offense.
People v. D'Antonio, 150 App. Div. 109, 134 N.Y.S. 657; People v. Werner, 174 N.Y. 132, 63 N.E. 664.
It is the province of the legislature to determine in the interest of the public what shall be permitted or forbidden and the statutes contain many instances of acts prohibited, the criminality of which consists solely in the fact that they are prohibited, and not at all in their intrinsic quality.
People v. West, 106 N.Y. 293, 12 N.E. 160; State v. McBrayer, 98 N.C. 619, 2 S.E. 755.
The appellant was convicted of having intoxicating liquor in his possession. The liquor found in his possession was wine containing 22.58 per cent. of alcohol by volume and 16.54 per cent. by weight. Section 1974, Code of 1930, prohibits the possession of vinous, alcoholic, malt, intoxicating, or spirituous liquor. This section was necessarily amended by chapter 171, Laws of 1934, to the extent that the possession of wine of not more than 4 per centum by weight is lawful, unless the contrary is voted at an election called for that purpose.
Appellant offered, but was not permitted, to prove that the wine in his possession was the property of a colored Elks Lodge, was kept by him for the purpose of being used by the members of the lodge as a beverage; that he did not know the wine contained more alcohol than 4 per centum by weight, was informed that it did not, and that he accepted the possession thereof in good faith, believing that he did not thereby violate the statute. The court committed no error in excluding this evidence. The statute prohibits the possession of wine containing more than 4 per centum of alcohol by weight, without regard to the intent of the possessor or his knowledge of its alcoholic content, so that one in possessing wine acts at his peril, and if the wine contains the prohibited amount of alcohol he is punishable under the statute. Bacot v. State, 94 Miss. 225, 48 So. 228, 21 L.R.A., N.S., 524, 136 Am. St. Rep. 574; King v. State, 66 Miss. 502, 6 So. 188; 16 C.J. 76.
The other assignments of error are without merit.
Affirmed.