Opinion
July 29, 1952.
Appeal from the Court of Record for Escambia County, Ernest E. Mason, J.
Coe Coe, Pensacola, for appellant.
Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.
David Merrill was the holder of a license to sell beer and wine at the Blue Moon Cafe in Escambia County. March 10, 1951, in Merrill's absence, his place of business was raided by representatives of the State Beverage Department and a half gallon of moonshine whiskey was discovered in the beer cooler. Merrill's wife was in charge of the place at the time and had two Negro men assisting her. Mrs. Merrill and the two Negro men were placed under arrest. When Merrill heard of the arrest he went to make bond for his wife and the Negro men and was forthwith placed under arrest
Merrill was informed against for removing, depositing and concealing moonshine whiskey with intent to defraud the state of the revenue tax. His trial resulted in a verdict of guilty. Motion for directed verdict was made at the close of the state's case, and at the close of all of the evidence, but was denied. Motion for new trial was denied and Merrill was sentenced to serve eighteen months at hard labor in the state penitentiary. This appeal was prosecuted.
Four questions are proffered as basis for reversal. The gist of appellant's grievance, as stated in the first question, is that when the court charged the jury about moonshine whiskey he admonished them that the "presence of any such beverage in any place which is owned by, or which is under the control of the defendant, is prima facie evidence that the beverage is being removed or deposited or concealed with the intent to defraud the state of the tax by the defendant."
The evidence shows that Merrill had been away from his place of business a week on account of illness, that an employee named Rosey Bryant was in charge at night, that on the day of the raid the two Negro employees came to work early in the morning, that one of them had a box under his arm and a few minutes later she saw him put a half gallon jug in the beer cooler. A second witness testified that he saw the same man put the jug in the beer cooler but knew nothing of its contents until the officers came and found it. The defendant testified about his illness and absence and that he came to his place of business on the morning of the raid and brought his wife to look after the place. He went down the street to do some buying for the business and when he returned his wife and employees were under arrest, that he knew nothing of the moonshine liquor in his place, who put it there or where it came from.
Appellant contends that the quoted instruction resulted from the court confusing the provisions of Section 562.27, F.S.A. with Section 562.30 F.S.A. It is true that the latter section provides that "possession" by other than a licensed manufacturer shall be prima facie evidence that such beverage has been manufactured, or is being sold, removed or concealed with design to evade payment of the tax. It is contended however, that before such presumption arises "possession" must be shown. In the case at bar "possession" was the issue, but under the instruction of the court, guilt of defendant was assumed, not from possession, but from finding the moonshine liquor in "any place which is owned by, or which is under the control of the defendant."
The second and third questions are derived from similar instructions likewise grounded. They emphasize the presumption of guilt from finding in "any place over which the defendant had control" rather than from possession. They are concluded by what was said as to first question. The evidence shows conclusively that the moonshine liquor was in the beer cooler, but there is not a shred of evidence showing that defendant was selling any such beverage or had any connection with its presence there. In view of the court's charge, the jury was compelled to disbelieve the account of how the moonshine got in the beer cooler, and base its verdict on inference rather than possession. The charge concluded the case against the defendant. The law requires that the holders of liquor licenses be persons of good moral character. It seems to me that the charge was prejudicial in the light of the evidence and the law. The jury should have been permitted to decide the guilt or innocence of defendant under a proper charge.
The judgment is therefore reversed and a new trial awarded.
SEBRING, C.J., and THOMAS and HOBSON, JJ., concur.