Opinion
No. 36129.
May 13, 1946.
1. CRIMINAL LAW.
In prosecution in county court for unlawful possession of intoxicating liquor, defendants could not complain of introduction of affidavit for search warrant and search warrant, on ground that prosecution for same offense was pending in justice court which had taken affidavit for search warrant and issued warrant for search, where it did not appear that an affidavit had been made before justice charging defendants with such offense.
2. CRIMINAL LAW.
A prosecution for unlawful possession of intoxicating liquor is not begun before justice of the peace by affidavit for, and issuance and execution of, a search warrant, without an affidavit having been filed against defendant charging such offense.
3. INTOXICATING LIQUORS.
Where intoxicating liquor is found on premises of which defendant is in possession and control, a rebuttable presumption of fact arises that liquor was in defendant's possession.
4. INTOXICATING LIQUORS.
Evidence that whisky had been brought by third party on defendant's premises while defendant was absent, and that whisky belonged to third party and that whisky was found by officers before defendant returned, would be insufficient to justify defendant's conviction of illegal possession of intoxicating liquor.
5. INTOXICATING LIQUORS.
Evidence disclosing finding of whisky in different places near place of defendant's business, and showing that defendant shortly prior thereto was seen coming from such places to his business place, justified defendant's conviction of unlawful possession of intoxicating liquor.
APPEAL from the circuit court of Jones county, HON. F.B. COLLINS, Judge.
Paul G. Swartzfager, of Laurel, for appellants.
The court erred in permitting the state, over the objection of the appellant, to introduce in evidence the affidavit for the search warrant and the search warrant, as the county court did not have jurisdiction of said cause. The county court of the second district of Jones County, Mississippi, could not and did not assume jurisdiction of this case while jurisdiction was lodged in the justice of the peace court of beat one, Jones County, Mississippi.
Where concurrent jurisdiction is vested in two courts, the court first acquiring jurisdiction should proceed with a trial and disposition of the case.
Milling v. State, 188 Miss. 592, 194 So. 291.
If this case had been properly dismissed in the justice of the peace court before an affidavit was lodged in the county court, then jurisdiction would have been rightly lodged in the county court.
Chandler v. State, 140 Miss. 524, 106 So. 265.
The court erred in overruling the motion of the defendant, Floyd Stone, for a directed verdict at the close of the state's testimony, also the same defendant's instruction for a directed verdict of not guilty. The old rule that criminal intent must accompany a crime is still the law, even as to liquor, so far as we have been able to ascertain. There must be actual or constructive intent to do the thing which constitutes the crime; otherwise, there is no criminal act. We submit that the testimony in this case fails to show any possession, either conscious or constructive, on the part of the appellant, Floyd Stone, as the whiskey found across the road and in the open field, accessible to the general public and in close proximity to three cafes of a doubtful and notorious character, could not by any stretch of the imagination have been either in the conscious or constructive possession of the appellant, and, further, that the three pints of whiskey in this case that were found inside the cafe were not in his conscious possession, were not actual and intentional possession as contemplated by the statute.
City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785.
The testimony in this case was wholly insufficient to warrant the jury in finding the appellant, Floyd Stone, guilty as charged. Before a jury would be warranted in finding one guilty that had been charged with a crime, the jury must believe from the evidence in the case at bar beyond a reasonable doubt and to a moral certainty that the defendant is guilty as charged.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
There was no affidavit, so far as this record shows, filed before the justice of the peace, charging the defendants with possession of liquor as required by Section 1830, Code of 1942, which affidavit is essential to give the justice court jurisdiction.
Bigham v. State, 59 Miss. 529; Bramlette v. State, 193 Miss. 24, 8 So.2d 234; Chandler v. State, 140 Miss. 524, 106 So. 265; Rogers v. State, 101 Miss. 847, 58 So. 536; Milling v. State, 188 Miss. 592, 194 So. 291.
The affidavit for search warrant is not sufficient to confer jurisdiction to try the case, as pointed out in a number of cases.
Powell v. State, 196 Miss. 331, 17 So.2d 524.
Where intoxicating liquor is found on premises of which defendant is in possession and control, a rebuttable presumption of fact arises that liquor was in defendant's possession.
Williamson v. State, 191 Miss. 643, 4 So.2d 220; Wylie v. State, 151 Miss. 897, 119 So. 825; Garland v. State, 165 Miss. 136, 146 So. 637.
Although the burden of proof was upon the state in prosecution for unlawful possession of liquor, jury were free to consider whether prima facie case made by state's evidence had been overcome by evidence for defendant.
Williamson v. State, supra.
One of the errors assigned on this appeal is the introduction in evidence, over the objection of appellants, Leroy Ratcliff and Floyd Stone, of the affidavit for a search warrant and the search warrant, pursuant to which a quantity of whiskey was found on or near the premises leased by Floyd Stone for operating a lunch and cold-drink business, and three bottles of which whiskey the said Leroy Ratcliff was breaking in the kitchen sink when the officers entered the place of business.
The ground of the objection to the introduction of the said affidavit and search warrant is that the case was then being tried in the county court in the exercise of its original jurisdiction, while a prosecution for the same offense was pending in the court of the justice of the peace, who had taken the affidavit for the search warrant and issued the warrant for the search. It does not appear from the record however, nor is the contention made in the brief of the appellants, that an affidavit had ever been made before the justice of the peace to charge the defendants with the unlawful possession of intoxicating liquor in his district, against the peace and dignity of the State of Mississippi. Therefore, no criminal prosecution had been commenced in the justice of the peace court at the time the appellants were tried in the county court. This Court expressly so held in the case of Powell v. State, 196 Miss. 331, 17 So.2d 524, involving the question of whether or not a criminal prosecution is begun before a justice of the peace by affidavit for, and issuance and execution of, a search warrant, without an affidavit having been filed against the accused for unlawful possession of intoxicating liquors against the peace and dignity of the state. See also Bigham v. State, 59 Miss. 529; Clingan v. State, 135 Miss. 621, 100 So. 185; and Bramlette v. State, 193 Miss. 24, 8 So.2d 234.
To sustain the conviction of the appellant Floyd Stone, under the evidence, the state relies upon the fact that the whiskey was found in his place of business, and on or near the premises leased by him, and there is invoked the rule announced in case of Williamson v. State, 191 Miss. 643, 4 So.2d 220, and the cases therein cited, to the effect that "where intoxicating liquor is found on premises of which defendant is in possession and control, a rebuttable presumption of fact arises that liquor was in defendant's possession." These decisions would not sustain the conviction against Floyd Stone as to the three pints of whiskey that were being broken by his co-defendant, Leroy Ratcliff, at the time the officers entered the place of business, for the reason that Ratcliff testified, and it is undisputed, that this whiskey had been brought by one Buddy Barefield within less than thirty minutes prior to the arrival of the officers, and that it belonged to the said Barefield, and in view of the further fact that it is undisputed that the defendant Stone had not been on the premises on that day until after the whiskey was found by the officers. This proof fully rebutted the presumption stated in the Williamson case, supra, as to the bottles of whiskey which were being broken by the defendant Ratcliff in the sink when the officers appeared on the scene. But the proof further disclosed the finding of other whiskey at three different places near the place of business, from which locations the sheriff had seen the defendant Stone and his employee coming toward the place of business shortly prior to the obtaining of the search warrant. The facts in connection with the location of this other whiskey were sufficient to entitle the jury to indulge the presumption heretofore mentioned, and there was no testimony to show that Buddy Barefield had brought this whiskey to the place where the same was found.
We are therefore of the opinion that the proof was sufficient to sustain the conviction as against both of the appellants, and that the judgment appealed from should therefore be affirmed, since we find that the other assignments of error are not well taken.
Affirmed.