Summary
In Walton v. State, 219 Miss. 72, 68 So.2d 87 (1953) it was held that the mere possession of beer for personal use was not unlawful, even in a county where an election had been held and beer outlawed under Mississippi Code 1942 Annotated section 10208 (1952).
Summary of this case from Gann v. StateOpinion
No. 38893.
November 23, 1953.
1. Intoxicating liquors — beer and wine — unlawful distribution of beer — unnecessary to charge or prove alcoholic content.
In prosecution for unlawful distribution of beer in county where an election had been held and beer outlawed, it was unnecessary to charge or proof to show whether alcoholic content was four per centum, or more or less than that amount. Sec. 10208, Code 1942.
2. Criminal procedure — courts — judicial notice — beer an alcoholic beverage.
Supreme Court would take judicial notice of fact that beer is an alcoholic beverage.
3. Beer and wine — unlawful distribution — alcoholic content immaterial.
In prosecution for unlawful distribution of beer in county where an election had been held and beer outlawed, the statute makes the distribution of beer in those counties where it has been outlawed a misdemeanor regardless of the amount of the alcoholic content.
4. Beer and wine — unlawful distribution — commercial transfer.
The statute against distribution of beer was designed to cover all means whereby the possession of beer may be commercially transferred from one to another. Sec. 10208, Code 1942.
5. Statutes — penal statutes strictly construed against State.
Penal statutes must be more strictly construed against the State and in favor of a defendant.
6. Beer and wine — unlawful distribution — commercial transfer — burden of proof.
In prosecution for unlawful distribution of beer, burden of proof was upon State to show defendant guilty of commercial transfer of possession of beer beyond a reasonable doubt, and, the evidence being wholly circumstantial on the crucial point as to whether the transfer was commercial, the burden was further upon the State to prove defendant guilty to exclusion of every reasonable hypothesis other than guilt. Sec. 10208, Code 1942.
7. Beer and wine — unlawful distribution — evidence — insufficient to sustain conviction.
Evidence was insufficient to sustain conviction of unlawful distribution of beer in a county where an election had been held and beer outlawed. Sec. 10208, Code 1942.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Itawamba County; RAYMOND T. JARVIS, J.
P.A. Martin, Jr., Brown Elledge, Fulton, for appellant.
I. The affidavit in this case is fatally defective in that it failed to allege alcoholic content, and the demurrer should have been sustained. Secs. 2613, 10207, 10208, 10226, Code 1942.
II. The motion for peremptory instruction should have been sustained because of the failure of the State to prove alcoholic content. Dubose v. State, 212 Miss. 521, 54 So.2d 756; Hall v. State, 199 Miss. 560, 24 So.2d 780; Hoyle v. State, 216 Miss. 330, 62 So.2d 380; Lowe v. City of Jackson, 181 Miss. 296, 179 So. 568; Riley v. State, 212 Miss. 746, 55 So.2d 447; Secs. 2613, 10208, Code 1942.
III. The peremptory instruction should have been granted on the further ground that the evidence was not sufficient to establish distribution (commercial transfer) of beer under the statute. Dubose v. State, supra; Sec. 10208, Code 1942.
John E. Stone, Asst. Attorney General, Jackson, for appellee.
I. The State contends when a valid election has been held prohibiting the distribution of beer of an alcoholic content of not more than four per centum by weight, that when the State proves, as in this case, that the defendant distributed beer of a well-known trade-name, to-wit: Falstaff, that this is sufficient for a conviction under Section 10208, but that if the defendant was being tried for possession, or any other violation under Section 2613, Code of 1942, it would be necessary to prove that the alcoholic content of the beer exceeded four per centum by weight. Fuller v. City of Jackson, 97 Miss. 237, 248, 52 So. 873; Hall v. State, 199 Miss. 560, 24 So.2d 780; Hoyle v. State, 216 Miss. 330, 62 So.2d 380; Reyfelt v. State, 73 Miss. 415, 18 So. 925; Turner v. State, 198 Miss. 839, 842, 24 So.2d 84; United States v. Standard Brewery, 260 Fed. 486, 487; Secs. 2613, 10207, 10226, Code 1942.
II. All that is required of an affidavit or indictment charging one with the commission of a crime is that he be sufficiently informed of the crime with which he is charged, and the use of particular words is not necessary in order to so inform him. Onsley v. State, 154 Miss. 451, 122 So. 731, 733; State v. Hinton, 139 Miss. 513, 104 So. 354; Williams v. State, 130 Miss. 827, 94 So. 882.
III. It is the contention of the State that when the statute prohibited the sale it prohibited any transfer for a monetary consideration, and that in prohibiting the distribution thereof it prohibited any transfer of beer which was not a sale, the word, "distribution," to cover the passage of beer from person to person where no consideration was involved. Dubose v. State, 212 Miss. 521, 54 So.2d 756; Great Atlantic Pacific Co. v. Morrisett (D.C. Va.), 58 F.2d 991, 993; In re Creighton, 12 Neb. 280, 11 N.W. 313; In re Wallace's Estate (Cal.), 79 P.2d 1094, 1096; Scully v. Squier, 13 Idaho 417, 90 P. 572, 577, 30 L.R.A. (N.S.) 183; Sec. 10208, Code 1942; Restatement of the Law, Conflict of Laws, Sec. 303 b; Webster's Dictionary, word "distribution"; Vol. 13, Words and Phrases, p. 14, word "distribution."
Appellant was charged in the justice court with the unlawful distribution of beer in a county where an election had been held and beer outlawed. On conviction he appealed to the circuit court where he was again convicted, and he appeals here.
It is contended first that the lower court erred in overruling a demurrer to the affidavit for the reason that the affidavit did not charge the per cent of alcoholic content of the beer, and it is contended secondly that a peremptory instruction should have been granted because the proof did not disclose the alcoholic content of the beer in question.
Appellant relies on Hoyle v. State, 62 So.2d 380, 216 Miss. 330. That case dealt with a charge of possession of beer. Under Section 10208, Code of 1942, it is not unlawful for a person to possess beer for his personal consumption even in a dry county where the alcoholic content does not exceed four percentum by weight. Consequently we held in the Hoyle case that where the charge is possession of beer, it is necessary to allege and prove that the alcoholic content thereof exceeded four per centum by weight. (Hn 1) In this case, however, the charge is the distribution of beer in a county where such distribution has been outlawed by vote of the people. Such distribution is a violation of Section 10208 regardless of the fact that the alcoholic content may be four per centum or less, and it is therefore unnecessary for the charge or the proof to show whether the alcoholic content was four per centum or more or less than that amount. (Hn 2) Beer is an alcoholic beverage and of this fact we may take judicial notice. Fuller v. City of Jackson, 97 Miss. 237, 248, 52 So. 873. (Hn 3) The statute makes the distribution of beer a misdemeanor regardless of the amount of its alcoholic content in those counties where it has been outlawed.
It is next contended that appellant's requested peremptory instruction should have been granted because the facts of this case fail to show a distribution of the beer in question. The sheriff obtained a search warrant for the search of a place of business operated by appellant. In company with a deputy he went, shortly after dark, to the vicinity of the premises and for about thirty minutes they waited across the highway and kept a watch on the place. An automobile drove up and one person alighted therefrom and had a brief talk with appellant, and the two of them went inside. The place was lighted and the sheriff and his deputy saw the two men go into a back room. In a short time the two came out of the room; the third party came out to his car carrying two paper bags which the sheriff took in charge and from which he removed three quarts of Falstaff beer. The sheriff then executed his search warrant and searched the premises and found three more quarts of Falstaff beer in a drink box in the back room. Neither the sheriff nor his deputy saw any money pass between the third party and appellant. The third party was not offered as a witness, and appellant testified that no money passed and that the beer had only been left in his drink box as an accommodation to a friend. In the case of Dubose v. State, 212 Miss. 521, 54 So.2d 756, we held that (Hn 4) the statute against distribution of beer "was designed to cover all means whereby the possession of beer may be commercially transferred from one to another." (Emphasis supplied.) In that case three cans of beer were delivered to three young men who had driven up to a roadside cafe in an automobile, and as they were preparing to pay for the same the transaction was stopped and the beer intercepted by officers who appeared out of the shadows. Under those facts we held that it was not necessary that a sale in progress should be completed in order to uphold a conviction for distribution of beer. But in the case at bar there is no showing that the delivery of the beer was a commercial transfer of its possession.
In the case of Frank Fehr Brewing Co. v. Commonwealth ex rel Oates, Comn'r. of Revenue, 296 Ky. 667, 178 S.W.2d 197, it was held that under a taxing statute on beer the word "distribution" covers only commercial transactions. It was pointed out in that case that taxing statutes are construed more strictly against the State and in favor of the taxpayer. (Hn 5) This same rule applies in the construction of penal statutes. State v. Lee, 196 Miss. 311, 17 So.2d 277.
(Hn 6) The burden of proof in this case was upon the State to show the appellant guilty of the commercial transfer of the possession of the beer beyond a reasonable doubt, and, since the evidence was wholly circumstantial on the crucial point as to whether the transfer was commercial, the burden was further upon the State to prove appellant guilty to the exclusion of every reasonable hypothesis other than guilt. What we said in Fortenberry v. State, 216 Miss. 241, 251, 62 So.2d 325, is particularly applicable here: "It may be readily conceded that the testimony of the officers was sufficient to prove beyond a reasonable doubt the facts testified to by the officers; and yet, we think that it cannot be said that proof of those facts was sufficient to establish the defendant's guilt beyond every reasonable doubt, and to the exclusion of every other reasonable hypothesis."
The proof here falls short of the burden which the law casts upon the State, for which reason the requested peremptory instruction should have been granted.
Reversed and appellant discharged.
Roberds, P.J., and Kyle, Holmes and Lotterhos, JJ., concur.