Cook v. State

81 Miss. 146 | Miss. | 1902

Oalhoon, J.,

delivered the opinion of the court.

The evidence sufficiently shows venue. Section 361 of the code, establishing the boundary of Coahoma county “to the river,” and sec. 2, p. 365, laws 1892, fixing the western boundary of the first judicial district of that county “between said given line and the Mississippi River,” and code, § 347, giving counties jurisdiction “to the western boundary of the state,” must all be read in pari materia with § 345, fixing the boundary of the state as “beginning on the Mississippi River, meaning thereby the center of said river, or thread of the stream,” etc. The middle line of that river marks the jurisdiction of the' court of the counties and judicial districts of counties on that river, and courts take judicial cognizance that offenses between that line and our shore are in the jurisdiction of the courts of the districts on the margin east of the place of the crime or misdemeanor. Sanders v. Anchor Line (Mo. Sup.), 10 S. W., 595; 3 L. R. A., 390; Buck v. Ellenbolt (Iowa), 51 N. W., 22; 15 L. R. A., 187. Medium filum aquae certainly remains the jurisdictional boundary, regardless of any changes in the bed of the stream by gradual accretion and recession. Nebraska v. Iowa, 143 U. S., 359; 12 Sup. Ct., 396; 36 L. Ed., 186. And we are not required now to decide what would be the effect upon jurisdiction of a sudden avulsion. If such had occurred, the defendants must show it; the state having brought evidence that the occurrence was far east of the middle of the line of the river, and in front of the proper district.

The indictment in this case is speeifially for the sale of liquor and is-under code, § 1574, as modified by tbe local election sections of the chapter on dramshops, and does not charge the new offense of keeping for sale, created by laws 1900, p. 141, ch-ap. 104, but this is not material to the points to be considered. The indictment is perfectly valid.

The evidence, showed that the sale was made in February, 1901, and yet the witness Wilkerson was permitted to testify that more than a year afterwards, in April, 1902, he was on the boat of defendants, which was operating under a federal and state coasting and ferry license, and found then on it whisky in a box, and some patent corkscrews, and- a federal United States license to defendants. This was too long after the- sale, and the contents of the United States license could not be shown by parol without previous notice to produce. Snyder v. State, 78 Miss., 366; 29 So., 78; Clark v. Adams, 80 Miss., 219 (s.c., 31 So., 746). It is true that we affirmed Glorie v. Adams, supra, notwithstanding the error of admitting parol evidence of the license; but that was a civil 'action, and the proof of liability was overwhelmingly uncontradicted. Here the proof of the sale was seriously contradicted, and it is questionable if conviction would have resulted but for this and other incompetent evidence noted. Based on this evidence, the court charged the jury, at the instance of .the state, as follows: “(2) The court instructs the jury that if they believe from the evidence, beyond every reasonable doubt, that the defendants have posted in or about their place of business in this state a license- stamp showing payment of a special tax for the sale of intoxicating liquors, levied under the laws of the United States, or that they had such license, or had paid such tax, or if they were in this state in possession of appliances adapted to unlawful retailing, it is presumptive evidence that they were engaged in selling intoxicating liquors contrary to law.” This charge burnt into the minds of the jury the incompetent evidence, and fails to fix .it at or about the time of the sale. Evidence was allowed that the general character and reputation of the boat was that of a whisky boat, which was clearly inadmissible. Moreover, it was permitted to the state to. show other sales than that charged, and on the Arkansas side, at that. This was error; .the very point being whether, on a ferryboat plying between the two bardes of the Mississippi River, a sale was maide on the side of this state. King v. State, 66 Miss., 502; 6 So., 188.

We cannot agree with counsel for the state that because, after objection and exception to all the foregoing incompetent testimony, further evidence was given without objection on the same lines, the error was cured. Where a principle of admissibility is once decided, counsel need not annoy the presiding judge and his opposing counsel by interrupting with.continual objections, lie need only be concerned to be sure that it is exactly the same principle. Herrin v. Daly, 80 Miss., 340 (s.c., 31 So., 790).

Reversed and remanded.