Opinion
No. 37706.
May 8, 1950.
1. Appeal — criminal procedure — appeal by State or municipality, when does not lie.
The statute on appeals by the State or by a municipality does not authorize an appeal from a judgment discharging a defendant on a peremptory instruction granted on the ground that proof was insufficient to sustain conviction. Sec. 1153 Code 1942.
2. Appeal — criminal procedure — appeal by State or municipality, when appeal will be entertained.
An appeal by the State or by a municipality from adverse rulings on the admission or exclusion of evidence will be entertained.
3. Intoxicating liquors — unlawful possession — evidence — general reputation of defendant's place of business.
In a prosecution for the unlawful possession of beer, testimony that the general reputation of the building or place wherein the defendant conducts a business is that it is a place where beer is kept and sold is incompetent and is properly excluded.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Monroe County; RAYMOND T. JARVIS, Judge.
George H. Ethridge, Assistant Attorney General, for appellant.
I think it was error for the court to strike out the evidence and grant a peremptory instruction in favor of the defendant even if it should hold that the evidence of reputation of the character of the place of defendant was not admissible, for in my view, the evidence was sufficient to show that the defendant keeping beer for the purpose of sale would sustain a verdict under the facts and circumstances existing at the time the search was made. The possession of the beer in such large quantities as were found by the search would indicate clearly, I think, that it was not kept for personal use and, at least, it was a matter for the jury to decide on the facts that it was the purpose of the appellee in having the beer on hand to sell same and coupled with the fact that a number of people were at the place of business of the defendant drinking beer, it strongly tends to support the theory that the defendant was serving customers by sale, for neither the defendant nor any of the persons present and drinking beer testified in the case to negative the conclusion which would naturally flow from the fact that the defendant was equipped with storage facilities for the sale and he did not testify on the witness stand that the beer was possessed only for the purpose of his personal use nor did he testify that he was dispensing the beer to entertain guests and that he did not sell or intend to sell the beer but it was a hospitality on his part. The facts introduced in evidence were unexplained by testimony to repel or remove the inference which would flow from the facts which the jury would be entitled to decide and the judge could not take from the jury, rightfully, the power to pass on this testimony.
I herewith submit as bearing on the admissibility of possession of intoxicating liquors as evidence of intent to sell, the following case: Buckley v. State, 102 P.2d 619.
Sam E. Lumpkin and Ramon L. Burgess, for appellee.
We respectfully submit that a person should not be convicted because of reputation, that in order to warrant a conviction for violation of the law a person must be proved guilty beyond all reasonable doubt. It is our understanding of the law of Mississippi that the reputation of an accused cannot be attacked until after the accused has submitted testimony as to reputation. In the case before this honorable Court is it proper for the State of Mississippi to introduce evidence as to the reputation of a place of business operated by the accused in the absence of any action on the part of the accused indicating reputation? Can the reputation of the place of business of an accused be distinguished from the reputation of the accused? Is there protection against incrimination in favor of the place of business operated by the accused? Do the circumstances in this case exclude every reasonable hypothesis except that of guilt? We respectfully submit that the circumstances do not exclude every reasonable hypothesis except that of guilt.
Appellant also refers to Section 10208, Code 1942, and maintains that said section must be construed to limit quantities of beer or wine to be used as reasonable and during a reasonable period of time. We respectfully submit that such a construction cannot be placed on the above mentioned statute, that if our statute conveys the meaning as maintained by the appellant it is to be corrected by the Legislature and not by the Supreme Court.
The appellant cites the case of Buckley v. State, 102 P.2d 619, having to do with the admissibility of possession of intoxicating liquors as evidence of intent to sell. The above cited case seems to us to indicate that the reputation of the place of business of an accused is admissible as to the intention of the accused. Our Court has repeatedly held that the intention to sell falls short of a violation of the statute. Livelar v. State, 98 Miss. 330, 53 So. 681. We respectfully submit that the Oklahoma case as cited by the appellant is not binding on this Court.
Beer and light wines, except for personal use, have been excluded by proper procedure from Monroe County. Section 10208, Code 1942, contains this provision: "Provided, however, that nothing in this section shall prohibit the consumer from possessing or the taking into any county electing to come from under this section said wines and beers for his personal consumption." Section 10207, Code 1942, made it lawful, when enacted, to possess beer of an alcoholic content of not more than four per centum by weight anywhere in the State. The Section 10208, therefore, in counties electing to bar said light wines and beers, authorized such prohibition, except where possessed for personal use only.
This will, perhaps, explain the verbiage of the affidavit against appellee which charged that he "did wilfully and unlawfully have in his possession 22 1/2 cases and ninety-seven (97) loose bottles of intoxicating liquor, to wit beer, for the purpose of sale, . . ." (Italics supplied.) The surplus clause, "for the purpose of sale," evidently was intended to negative the exception that he had it for "personal use." City of Amory v. Yielding, 203 Miss. 265, 34 So.2d 726, where we discussed these statutes. The quoted language, "for the purpose of sale" is not in the statute.
The trial court sustained appellee's motion for an instruction peremptorily to the jury to return a verdict of not guilty. It is not deemed necessary to set out the evidence in the record, at any great length. The State of Mississippi appeals and assigns two errors. One, granting the peremptory instruction. Two, that the court below erred in excluding evidence offered by the State that the place of business of the defendant had a reputation of being a place where intoxicating liquors were sold. As to the first, we have several times declared that (Hn 1) Section 1153, Code 1942, formerly Section 19, Code 1930, Section 16, Hemingway's 1917 Code, and so on, does not authorize the State or a municipality to appeal from a judgment discharging a defendant on the ground that proof was insufficient to sustain conviction. City of Water Valley v. Davis, 73 Miss. 521, 19 So. 235; State v. Willingham, 86 Miss. 203, 38 So. 334; City of Pascagoula v. Cunningham, 141 Miss. 604, 106 So. 886; State v. Brooks, 102 Miss. 661, 59 So. 860. So, we dismiss that assignment without more ado.
(Hn 2) However, we have entertained appeals by the State from adverse rulings on the admission or exclusion of evidence. State v. Ireland, 89 Miss. 763, 42 So. 797; State v. McMullins, 156 Miss. 663, 126 So. 662, 663; State v. Johnson, 166 Miss. 591, 148 So. 389. We, therefore, address ourselves to the second assignment of error.
The actual charge against appellee is the unlawful possession of beer, that is, possession not for his personal use. He is not being proceeded against for the operation of a public nuisance, but only for the misdemeanor mentioned. Manifestly, the evidence offered by the State, and to which appellee's objection was sustained, was an effort to prove that beer was kept for sale by appellee in the building involved. The question gets down to this, can such guilt of one in control of the building be proved by the reputation of his place of business? A sample of the interrogatories propounded to the State's witness is "From contact of the people up there, ask you whether or not you know the reputation of that place as to whether it is a place where beer is kept or sold?"
Appellee interposed the objection that the defendant was charged with possession of beer for the purpose of sale (that is, not for his personal use), and that it was not sought to close the place because of being a nuisance. The Court said: "In other words, the question is intended to ask Mr. Monaghan if he knows its reputation. Of course what other folks say or believe about it, on the ground of hearsay, is that your objection?" Upon being assured that it was, the court further said: "And on the ground of whether or not the general reputation of a place can be offered in evidence on the trial of a man for a thing of this kind, of having beer in his possession at this particular time?" To which counsel replied, "Yes, sir." A further question was then put to the State's witness by the prosecuting attorney, as follows: "Ask you about that reputation, is it good or bad?" Appellee thereupon made the additional objection that the admission of such testimony would violate the rule against the right of the State to attack the reputation of the defendant, where he had not first offered evidence of his good reputation. The court indicated that he would sustain the objections, but permitted the State to make a record; in the absence of the jury. At the conclusion thereof, the Court sustained appellee's objection to this testimony, that is, that the reputation of the place was bad, which was the ultimate form taken by the state's interrogations to the witnesses.
This is a case of first impression in Mississippi. However, the attorney general cites a case from Oklahoma, Buckley v. State, 69 Okla. Cr. 285, 102 P.2d 619, 622, wherein that Court said: "It has also been held that where a proper predicate was laid proof of the reputation of the premises was admissible, but that proof that defendant was a bootlegger was inadmissible", citing some Oklahoma cases. The Court also stated its reason for the rule to be: "`. . . that testimony tending to show that the defendant had previously sold other liquor, or kept other liquor for sale, is admissible on the question of intent, and if such liquors were kept at a place at which the public generally resorted, and the circumstances of the case indicated that such place was used for the purpose of selling intoxicating liquor, the general reputation of such place is admissible on the question of intent.'" Quoting from Kirk v. State, 11 Okla. Cr. 203, 145 P. 307.
In this State, as we read Section 2613, Code 1942, a defendant may be convicted, with increasingly severe penalties, for the first, second, or third offense of possessing intoxicating liquors as separate offenses, which would preclude evidence of other violations in the proof of a first offense; but admit proof of previous conviction or convictions thereof on charges of the second offense, or the third offense, respectively, as integral parts of the latter two offenses. This statute, it seems, precludes the application to this case of the Oklahoma rule that "testimony tending to show that the defendant had previously sold other liquor, or kept other liquor for sale, is admissible on the question of intent." It is to be remembered the statute under which appellee was tried made it a crime to possess beer in Monroe County, except for personal use. Its sale, although also embraced in Section 2613, supra, is a separate offense from its possession. The only use of proof of purpose of sale in the case, the record reflects, was to negative the anticipated defense that appellee possessed the beer for his personal use.
We have also another statute which has some relative bearing on the question, Section 2626, Code 1942, making the controller of the house indictable, in which it is provided that: "Proof of an unlawful keeping of such liquors, or of an unlawful sale, barter, or giving away thereof, in such building, shall constitute presumptive evidence of a violation of this section by any owner, lessee, sub-lessee, or occupant who has not given the information herein required . . ." But we have no statute or decision of this Court permitting the State to give in evidence the reputation of a building on the precise issue whether the defendant unlawfully possessed intoxicating liquors therein at the time of the offense on which he was then being tried, or any other time on the specific charge herein involved.
We have declared that in a prosecution for the wrongful sale of intoxicating liquors while the statute permits proof of other sales than that relied on for a conviction, such sales must be shown to have taken place within the period of limitations, and must be proved with the same certainty as the sale relied on for conviction. Harvey v. State, 95 Miss. 601, 49 So. 268. We have also said that on a trial possessing intoxicating liquors, it was error to introduce in evidence the finding of liquors on a former occasion, constituting a separate and distinct offense, the provisions of the Code making it competent to introduce evidence of more than one offense, being without application to the unlawful possession of liquor, Lowe v. State, 127 Miss. 340, 90 So. 78. We have held, too, that in an indictment for fornication, general reputation in the neighborhood of the defendant, that he lived in fornication with a woman, is inadmissible, as it is hearsay evidence. Overstreet v. State, 3 How. 328, 4 Miss. 328, 1 Morr. St. Cas. 112.
All must concede that the State cannot introduce in evidence the general bad reputation of a defendant unless he first offers evidence of his good reputation. It would, indeed, be difficult for a jury to separate the reputation of a business or its housing from the reputation of him who does the business therein sought to be characterized as bad. The building is inert, the occupant is substantially the source of its reputation, and its reputation is largely his reputation, during his tenancy. (Hn 3) We do not think the court was in error when this testimony was excluded.
In our research we have found one other state other than Oklahoma where this question was involved in appellate court decision. In 92 A.L.R. 1232, in a Note, we find cited State v. Beswick, 13 R.I. 211, 43 Am. Rep. 26. "A statute of Rhode Island providing that it should not be necessary to prove an actual illegal sale of liquors in order to establish the fact that the liquors were kept at a place for sale, `but the notorious character of any such premises, or the notoriously bad or intemperate character of persons frequenting the same, or the keeping of the implements or appurtenances usually appertaining to grogshops, tipping shops, or places where such liquors are sold, shall be prima facie evidence that liquors are kept on such premises, for the purpose of sale,' was held unconstitutional and void as depriving the accused of life, liberty, or property, otherwise than by the judgment of his peers or the law of the land." The Court of Rhode Island used this illustration: "Suppose . . . that the general assemby were to enact that, if any person were generally reputed to be guilty of a murder, it should be prima facie evidence that he was guilty, and that some citizens were convicted and sentenced to death or imprisonment on said evidence, because, in the absence of rebutting evidence, the jury had no option to acquit him. Could it be said that his life or liberty had not been taken from him by the judgment of his peers? We think not." "In State v. Kartz, (1882) 13 R.I. 528, . . . a statute providing that `every person who shall keep a place in which it is reputed that intoxicating liquors are kept for sale, without having a license therefor,' should be guilty of a crime, was likewise held unconstitutional and void." 92 A.L.R. 1232.
We have no such statutes, and although the jury in the case at bar would not have been conclusively bound by the offered evidence, it certainly would have been influenced thereby. The underlying philosophy behind the two decisions by the Rhode Island Court is that testimony of reputation in such cases should not be made the basis of conviction. The appellee here was charged with unlawfully having beer in his possession on or about the 30th day of July, 1949, and the general bad reputation, if it be conceded, was compelled to have been created prior to that time, since such reputation cannot be established in one day. It would, therefore, have been insufficient to sustain the charge that appellee was in unlawful possession of beer at that particular time. We think the reputation of this building was incompetent in this case, and was properly excluded, and the judgment is affirmed, State v. McMullins, supra.
Affirmed.