Opinion
No. 40851.
September 22, 1958.
1. Intoxicating liquors — nuisance — suit to abate a liquor nuisance — a civil action — State's case can be made out by a preponderance of the evidence.
A suit to abate a liquor nuisance is a civil action, and State can make out case by preponderance of evidence. Sec. 2646, Code 1942.
2. Intoxicating liquors — injunctions — nuisance — evidence — supported finding that barn wherein whiskey had been found was on defendant's premises.
In suit to enjoin defendant from unlawfully possessing, storing, and selling intoxicating liquors, evidence would support finding that barn in which whiskey had been found was on defendant's premises.
3. Intoxicating liquors — suit to abate liquor nuisance — evidence of post litem motam sales competent where antecedent facts alleged in bill had first been established.
Evidence of post litem motam sales would be competent if, but only if, antecedent facts alleged in bill had first been established.
4. Intoxicating liquors — suit to abate liquor nuisance — evidence, secondary and supplementary to direct evidence, of had reputation of defendant's place for possession and sale of intoxicating liquors — competent.
It was proper for Trial Court to admit evidence, secondary and supplementary to direct evidence, of bad reputation of defendant's place for possession and sale of intoxicating liquors.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Marion County, THOMAS D. OTT, Chancellor.
Jas. R. Davis, Columbia, for appellant.
I. At the time of the filing of the bill there was absolutely no evidence of violation of the prohibition laws on the part of the appellant and, therefore, the complaint should have been dismissed. Georgia Pacific R. Co. v. Baird, 76 Miss. 521, 24 So. 195; State v. Rogers, 206 Miss. 643, 39 So.2d 533; Strong v. State, 199 Miss. 17, 23 So.2d 750; United States v. Barnes (Del.), 51 F.2d 849; 48 C.J.S., Intoxicating Liquor, Sec. 420(b); Griffith's Miss. Chancery Practice (2d Ed.), Sec. 169.
II. The evidence as to the reputation of the appellants was inadmissible and should have been excluded by the Lower Court. State ex rel. Dis. Atty. v. Ingram, 179 Miss. 485, 176 So. 392; State ex rel. Dist. Atty. v. White, 178 Miss. 542, 173 So. 456.
III. The evidence offered by the State completely and wholly failed to sustain the allegations of the bill of complaint. Anderson Clayton Co. v. Rayborn (Miss.), 192 So. 28; State ex rel. v. Carr, 191 Miss. 659, 4 So.2d 237; Vermillion v. State ex rel. Carman, 210 Miss. 255, 49 So.2d 401; Sec. 2646, Code 1942; 30 Am. Jur., Intoxicating Liquor, Secs. 513, 514 pp. 520-521; Griffith's Miss. Chancery Practice (2d Ed.), Sec. 573.
G. Garland Lyell, Asst. Atty. Gen., Jackson, for appellee.
I. Cited and discussed the following authorities: State ex rel. Dist. Atty. v. Ingram, 179 Miss. 485, 176 So. 392; State ex rel. Dist. Atty. v. White, 178 Miss. 542, 173 So. 456; Wharton's Criminal Evidence (12th Ed.), Sec. 146.
(Hn 1) The Chancery Court of Marion County enjoined appellant from unlawfully possessing, storing, and selling intoxicating liquors at her place north of Columbia. Miss. Code 1942, Section 2646. She complains that the evidence, with reference to liquor on her premises prior to the filing of the bill of complaint on June 4, 1957, was insufficient to support the decree. A suit to abate a liquor nuisance is a civil action, and the State can make out its case by a preponderance of the evidence. Newman v. State ex rel. Barlow, 221 Miss. 331, 72 So.2d 700 (1954).
(Hn 2) Appellant's property, to which the injunction extends, was described as a 20-acre governmental subdivision. Her answer admitted it was her home. Search of her premises, less than a month prior to filing of the bill, revealed whiskey in an old barn some 50 or 75 yards to the rear of her dwelling. The chancellor was warranted in concluding from the evidence that it was on her premises.
(Hn 3) Pursuant to an executive order by the Governor, units of the National Guard searched appellant's place on August 10, 1957, and turned up large quantities of assorted liquors. Evidence of this search was properly admitted as tending to show the continuing character of the nuisance, where the antecedent facts alleged in the complaint charging the nuisance were shown. Appellant was not tried for selling intoxicating liquor, but for maintaining a nuisance, which may continue beyond filing of the bill. To prove continuance of the nuisance, and for this purpose alone, evidence of post litem motam sales is competent, if the antecedent facts alleged in the bill have first been established. Absent such antcedent evidence, testimony to show that a nuisance not proved continues would, of course, be inadmissible. Murphy v. U.S., 16 F.2d 595 (CCA 3d 1926); U.S. v. Gaffney, 10 F.2d 694 (CCA.2d 1926); State ex rel. Good v. Boyle, 67 Idaho 512, 186 P.2d 859, 864 (1947); No. 40,847, Lee v. State, decided September 22, 1958.
(Hn 4) It was also proper for the trial court to admit evidence of the bad reputation of appellant's place for the possession and sale of intoxicating liquors. Such evidence is competent where it is secondary and supplementary to direct evidence of the nuisance, possession, storage, or sale on the premises. State ex rel. District Attorney v. White, 178 Miss. 542, 173 So. 456 (1937); State ex rel. District Attorney v. Ingram, 179 Miss. 485, 176 So. 392 (1937).
Affirmed.
Roberds, PJ., and Hall, Arrington, and Gillespie, JJ., concur.