Opinion
No. 41060.
December 15, 1958.
1. Intoxicating liquors — unlawful possession — evidence — conviction sustained.
Evidence sustained conviction of unlawful possession of intoxicating liquor. Sec. 2613, Code 1942.
2. Criminal law — intoxicating liquors — unlawful possession — affidavit — proof.
Where crime charged in affidavit was unlawful possession of intoxicating liquor, it was sufficient to prove unlawful possession of whiskey, and the adding of words "wine and beer" to the word whiskey in affidavit was surplusage, since there was only one offense charged in affidavit. Sec. 2613, Code 1942.
3. Criminal law — intoxicating liquors — unlawful possession — conviction and sentence affirmed as modified.
Where defendant, convicted of unlawful possession of intoxicating liquor, was sentenced to 90 days in jail and statute provided for a maximum of three months sentence, since month of February would intervene during term of the 90 day jail sentence imposed, such sentence might exceed three calendar months, Supreme Court would affirm conviction and sentence with modification that jail sentence may be for three months instead of 90 days. Sec. 2613, Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Jones County; WM. J. GUNN, Special J.
George Maxey, Laurel, for appellant.
I. The Trial Court erred in admitting testimony, over the objection of the appellant, of the possession of a quantity of beer and wine without showing the alcoholic content thereof, it appearing that it was not in violation of the law to possess beer and wine in Jones County unless the alcoholic content exceeded that percentage fixed by statute. Hoyle v. State, 216 Miss. 330, 62 So.2d 380.
II. The affidavit charging the alleged crime and an instruction granted to the State violates Sections 26 and 14 of the Mississippi Constitution of 1890 in that it failed to furnish the appellant such a description of the charge against her as would enable her to prepare her defense and avail herself of the conviction or acquittal against further prosecution for the same offense; and secondly, that the affidavit failed to inform the Court of the facts alleged, so that it might have been able to see whether the facts were sufficient in law to support the conviction. Woods v. State, 200 Miss. 527, 27 So.2d 895; Brown v. State, 170 Miss. 86, 153 So. 302.
III. The only instruction upon which the jury could have based their verdict of guilty in this case is the one that appears on page 26 of the record wherein the jury was only authorized to bring in a verdict of guilty if they believed beyond a reasonable doubt that the appellant had in her possession beer, wine and whiskey, necessarily meaning that the jury had to find the appellant guilty of the possession of the wine and beer and the record reveals that there was no testimony whatever to support a conviction of either.
IV. The sentence imposed by the Court of ninety days is excessive and not authorized by law. Jenkins v. State, 207 Miss. 281, 42 So.2d 198; Sec. 2613, Code 1942. G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. Where a count charges one offense and defectively charges another, the latter defective charge may be rejected as surplusage. 27 Am. Jur., Indictments Informations, Sec. 128.
II. No affidavit or indictment could more plainly charge a specific crime at a specific time than the affidavit in the case at bar and this affidavit, together with the proof, would unquestionably be a bar to any future prosecution.
III. If it should be deemed that, as argued by appellant, the affidavit is in anyway defective, the defect is one which appears on the face of the affidavit and any objection thereto should have been taken by demurrer to the affidavit, which appellant did not do. Sullivan v. State, 150 Miss. 542, 117 So. 374; Wampold v. State, 170 Miss. 732, 155 So. 350; Sec. 2449, Code 1942.
IV. It is next argued that the instruction granted to the State at page 35 of the record was erroneous in that it instructed the jury as to possession of whiskey, wine and beer, while there was no testimony whatever to support a conviction of the possession of all three of these varieties of liquor. It is submitted that on the one hand, the wine and beer can be treated as surplusage if not in fact illegal in Jones County and appellant is incorrect in stating that there was no testimony with respect to finding wine and beer. The witness Atwood testified that the searching officers found fifty-one cases of assorted whiskey, gin, and wine, and five cases of beer, most of which was destroyed and there being two cases of whiskey and a bottle of wine introduced in evidence at the trial. Furthermore, even if this instruction is technically incorrect, it goes to the burden of proof and proof in the case, and the proof was so overwhelming that no verdict but guilty could have been found by the jury and this instruction would be held harmless and not ground for reversible error under Rule 11 of this Court.
V. The sentence imposed by the Court of ninety days is authorized by law. Jenkins v. State, 207 Miss. 281, 42 So.2d 198; Langley v. State, 170 Miss. 520, 155 So. 682; Little v. State (Miss.), 8 So.2d 464; Goode v. State, 158 Miss. 616, 131 So. 106; Gaston v. State, 107 Miss. 484, 65 So. 563; Secs. 685, 2613, Code 1942.
On January 29, 1957 the constable of Beat 1 in Jones County made an affidavit before the justice of the peace for a search warrant to search for intoxicating liquors, obtained a search warrant for that purpose, and then pursuant thereto seized 51 cases of assorted whiskey, gin, wine and 5 cases of beer, then in the possession and under the control of the appellant, Grace Warbington, on the premises designated in the affidavit for search warrant and in the search warrant, and referred to as New Ball Park Inn.
On the next day the constable made an affidavit before the justice of the peace charging that the appellant "did unlawfully and willfully have in her possession or under her control intoxicating liquors, to-wit: Whiskey, wine and beer * * *." The accused was convicted in the justice of the peace court, fined the sum of $500 and sentenced to serve thirty days in the county jail and to pay the costs. From that conviction and judgment the appellant appealed to the county court where she was tried and convicted again and sentenced "to serve ninety days in jail and pay a fine of $500 and all costs."
Upon appeal to the circuit court the cause was heard before Judge William Gunn as Special Judge and the judgment of the county court was there affirmed on the record.
On this appeal appellant assigns as error the action of the county court in overruling her objection to the introduction in evidence of the beer and wine. Second, that the affidavit is void for the reason that it consolidates three separate crimes, that of possessing whiskey, of possessing wine and of possessing beer, and third, that the sentence imposed was in excess of the maximum provided by law, the latter assignment being based upon the provisions of Sec. 2613, Code of 1942, which makes the maximum jail sentence to not exceed three months and it is contended that the ninety days sentence could exceed three calendar months and that hence the case should at least be reversed for proper sentence under the authority of Jenkins v. State, 207 Miss. 281, 42 So.2d 198. It is unnecessary to set forth the remaining assignments of error.
(Hn 1) The guilt of the accused was clearly shown. The constable, justice of the peace and the sheriff by their undisputed testimony established the fact that the intoxicating liquors hereinbefore enumerated were found at New Ball Park Inn on Highway 15 outside the corporate limits of the City of Laurel in Beat One in Jones County, and the constable testified that when he arrived at New Ball Park Inn he "went inside the place and found Grace Warbington and asked her if she was in charge of the place. She said that she was. She said that she was looking after it and I issued her a copy of that (search) warrant."
The appellant offered no testimony in her defense.
(Hn 2) The crime charged in the affidavit was the unlawful possession of intoxicating liquors and in this case it was sufficient to prove the unlawful possession of whiskey. If the accused had been tried for the unlawful possession of beer or wine alone, it would have been necessary under the decision of Hoyle v. State, 216 Miss. 330, 62 So.2d 380, for the State to have charged and proven that the wine or beer was of an alcoholic content in excess of four per centum, and in the absence of such a charge in the affidavit the testimony as to the wine and beer would have been inadmissible. But the principal thing with which the accused was charged in the instant case was the possession of intoxicating liquors and it was only necessary to have charged and proved here possession of whiskey. The adding of the words "wine and beer" had the same effect as if the words "a case of Coca-Cola or a case of Seven-Up" had been added to the charge of possessing intoxicating liquors, to-wit: Whiskey. In other words if the charge of the possession of wine and beer did not constitute an offense, there was only one offense charged in the affidavit.
We find no reversible error in this case and the proof abundantly supports the charge against the accused of having unlawful possessed intoxicating liquors.
It was held in the case of Little v. State, 8 So.2d 464, (Miss. 1942), that where a sentence and judgment of the trial court should be affirmed except as to where an improper sentence had been imposed, "there may be a reversal and remand to the trial court to resentence the appellant or this Court may reduce the sentence to that authorized by the statute. We take the latter course and leave the fine standing and fix the imprisonment at three months." Citing Goode v. State, 158 Miss. 616, 131 So. 106; and Gaston v. State, 107 Miss. 484, 65 So. 563.
(Hn 3) We have concluded under the foregoing authority that since the month of February will intervene during the term of the ninety-day jail sentence imposed by the trial court, and that since such sentence may exceed three calendar months, to affirm the conviction and sentence with the modification that the jail sentence may be for three months instead of ninety days, therefore the sentence and the judgment of the trial court are affirmed as thus modified.
Affirmed as modified.
Hall, Lee, Holmes, and Ethridge, JJ., concur.