Opinion
No. 28808.
November 10, 1930.
1. CRIMINAL LAW.
Admitting in evidence empty ginger containers, found with mixture of wine and Jamaica ginger in same search, held not error.
2. CRIMINAL LAW.
Where defendant admitted possession of all articles testified about by officers as result of search warrant, it was immaterial whether search warrant was valid.
3. INTOXICATING LIQUORS.
Instruction defendant had right to possess Jamaica ginger and homemade wine held properly refused, where defendant possessed mixture of Jamaica ginger and wine.
4. INTOXICATING LIQUORS.
Whether mixture composed of Jamaica ginger and wine was intoxicating held for jury.
APPEAL from circuit court of Simpson county. HON.W.L. CRANFORD, Judge.
J.P. A.K. Edwards, of Mendenhall, for appellant.
The court erred in refusing defendant the following instruction:
The court instructs the jury for the defendant that the defendant had a right under the law to have Jamaica ginger or the fluid extract of ginger in his possession for medical purpose as described on the container offered in evidence.
Young v. State, 137 Miss. 188, 102 So. 161, 36 A.L.R. 717; Davidson v. Newton, 137 Miss. 188, 102 So. 161; 36 A.L.R. 717; Billington v. State, 140 Miss. 179, 105 So. 457.
The court permitted the evidence to go to the jury relative to the number of cans found on the premises of appellant. This is prejudicial evidence and had a weight with the jury.
Washington v. City of Jackson, 72 So. 892; Lowe v. State, 90 So. 78.
The court refused appellant the instruction that he had the right to have in his possession homemade wine to be used for household and domestic purposes.
Section 2267, Hemingway's Code 1927, gives appellant the right to make homemade wine, and if he has the right to make it he must have the right to possess it.
Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.
The evidence as to the twenty-six empty containers which the officials found while searching appellant's house was admissible. These containers were found at the same time and on the same search that the jug containing the mixture was found, and the fact that the officers found them was admissible in evidence as tending to prove that appellant was not simply using the mixture as a medicine, but was using it as a beverage.
Dempsey v. State, 145 Miss. 824.
It is not permissible to manufacture intoxicating liquors which ferment by their own fermentation through the laws of nature in all cases. Domestic wine alone is excepted.
Holley v. State, 144 Miss. 726; Stepp v. State, 132 Miss. 132.
The concoction or mixture which appellant in this case had in his possession was not wine and was not Jamaica ginger, but was a beverage which contained not only alcohol which was produced by its own fermentation, but also added alcohol by reason of the fact that Jamaica ginger had been mixed with it.
In the lower court appellant was charged with having in his possession intoxicating liquor, and on conviction thereof sentence therefor was imposed by the lower court, and he appeals here.
In virtue of an affidavit made and search warrant issued, officers of the law searched the premises of the appellant and found a jug which contained about a quart of a mixture, which they said tasted like wine and Jamaica ginger. There was evidence that this mixture was two-thirds homemade muscadine wine and one-third Jamaica ginger. Two witnesses said that it tasted like wine and Jamaica ginger, and, in their opinion, it was intoxicating. In addition to the jug mentioned, the officers found twenty-six empty ginger containers, the carton of which was addressed to the appellant. It was shown that the ginger preparation had content of more than eighty per cent alcohol, and that good whisky had a content of about forty-one per cent alcohol. Upon the witness stand the appellant admitted that he had each and every article which the officers testified were found by them on their search.
The appellant testified that he ordered the Jamaica ginger from a firm in New York, and that he made the wine from muscadines and mixed it in a jug to use for cramps, colds, stomach trouble, etc. The appellant asked for a peremptory instruction, also asked for an instruction to the effect that he had a right to have in his possession Jamaica ginger, and separately he asked that the jury be instructed that he had a right to have possession of homemade wine. These instructions were refused by the court.
First, it is insisted that the court erred in permitting the state to offer in evidence the twenty-six empty containers. We see no objection to that. The containers were found along with the mixture of wine and Jamaica ginger in the same search on the same occasion. This is not the case of offering evidence of another search on another occasion where the charge was possession of intoxicating liquors, so we do not think the rule announced in Washington v. City of Jackson, 112 Miss. 171, 72 So. 893, and Lowe v. State, 127 Miss. 340, 90 So. 78, can be invoked here. This is evidence found on the same search and is directly connected with the crime charged.
Second, the appellant himself admitted the possession of each and all the articles testified about by the officers as a result of the search warrant; therefore, it is immaterial whether the search warrant was valid or void. See Blowe v. State, 130 Miss. 112, 93 So. 577, 24 A.L.R. 1429; State v. Watson, 133 Miss. 796, 98 So. 241; Hollis v. State, 149 Miss. 508, 115 So. 593; Bowman v. State, 152 Miss. 195, 119 So. 176.
Third, as to the instructions to the effect that the appellant had a right to possess Jamaica ginger and likewise had a right to possess homemade wine, we can only say that as an abstract proposition the instructions were correct, but were not applicable to the facts of this case for the reason that appellant had in his possession a mixture composed of Jamaica ginger and wine. When the appellant mixed the two and thereby caused the wine to contain more than eighty per cent of alcohol, it then became a question for the jury as to whether or not it was intoxicating. His defense that he was taking it as a medicine could not avail. The jury were well warranted in believing, when he said he took a half cupful for a dose, that he made the mixture in order to have a pleasant beverage, and by the blending secured for himself a concoction stronger in alcoholic content than good whisky, according to the testimony in this case. The record does not show how often he took his dose of half a teacupful, nor the kind of cups he used in his home. It was a question for the jury as to whether or not the concoction was intoxicating, and there was ample testimony that it was intoxicating to warrant the jury in so finding. When appellant had succeeded in the blending of the two elements, the finished product was thereby neither wine nor Jamaica ginger. See Holley v. State, 144 Miss. 726, 111 So. 139; and Stepp v. State, 132 Miss. 132, 95 So. 838, 839. One may have meal, water, sugar, and own them separately and not violate the law, but when he blends these constituents in order to make another concoction which ordinarily is intoxicating, he then may become guilty of having in possession intoxicating liquors.
There is no reversible error in this record.
Affirmed.