54 So. 2d 756 | Miss. | 1951
Appellant was convicted of the unlawful distribution of beer in Newton County, which had, by election, voted against the traffic under Code 1942, Section 10208.
The testimony for the State made a prima facie case. It was shown that the act was committed at a
Testimony for appellant raised issues of fact, the most interesting of which was that she kept the beverage for her personal use, which involved a rather enlarged daily requirement. The jury must have discounted this explanation, as well as the testimony of the employee who indicated in his explanation his purpose to make a gift of the three cans of beer from his employer’s private supply, and all this without her knowledge or permission and in her presence. We have not, of course, any opinion to express as to the reasonableness of this defense. We say merely that this was an issue to be decided by the jury.
The most serious contention concerns the question whether the transaction was a “distribution” of beer. It is argued that conventionally a distributor is one who, as a wholesaler or distributing company, delivers beer in substantial lots upon order. But the statute does not so define “distribution”. It is evident that the statute was designed to cover all means whereby the possession of beer may be commercially transferred from one to another. The charge is not possession, against which a defense of personal use may be appropriate. Here the sale was not completed. The statute forbids storage, sale, distribution, possession and receipt. It
If it be argued that in popular speech one is not said to distribute a bottle or can of beer to a customer who stands at the footrail, the answer is not that it is not a distribution but is a sale. It may be both. In the assumed case, it is doubtless true that the affidavit would have charged a sale. The forbidden forms of traffic were designed to proscribe all devices whereby the possession of beer in a dry county may be commercially transferred and the doctrine of noscitur a sociis links all forms of such transfer in a common outlawry. Otherwise, an officer by an impatient zeal may, by intervening between delivery and payment, thwart his own purpose by casting the transaction into a category not covered by a statute designed to prevent all traffic.
We are of the opinion that the affidavit charged an offense under the statute, and that the jury were authorized to weigh the testimony in the light of reason.
The remaining assignment is aimed at the refusal to the defendant of what is known as the two-theory instruction. Aside from a consideration of the merit of such instruction, it is properly refused in a case not based entirely upon circumstantial evidence. Jones v. State, 183 Miss. 408, 184 So. 810; Yarbrough v. State, 202 Miss. 820, 32 So. (2d) 436. The case here is based chiefly upon direct evidence.
Affirmed.