Frazier v. State

106 So. 443 | Miss. | 1925

The appellant, a justice of the peace of district No. 3 of Adams county, was indicted and convicted of a misdemeanor in office in that he "willfully and unlawfully had in his possession more than one quart of intoxicating liquors;" and from a judgment removing him from office and sentencing him to pay a fine of three hundred dollars and serve sixty days in jail, this appeal was prosecuted.

The substance of the testimony for the state was that, pursuant to the command of a search warrant previously issued, the sheriff of the county searched the residence and premises of the appellant and found in the kitchen of the residence four half-gallon jars filled with whisky, and a similar empty jar that had the odor of whisky. A few steps from the back door of the residence a similar empty jar was found, while in a storehouse near the residence eighteen empty jars, which were similar to the ones containing liquor, were found. The sheriff and his deputies testified that the raid was made at 11:45 o'clock at night; that the appellant was intoxicated at the time, and claimed that he did not know the liquor was in his home.

The appellant testified that he did not know the liquor was in his residence, and that he afterwards learned that it had been placed there by the constable to be disposed of according to law. The constable testified that he had seized this liquor and placed it in the home of the justice of the peace to be disposed of according to law, but that the justice of the peace was absent from home at the time, and he failed to notify him that the liquor had been placed in his residence.

The appellant demurred to the indictment on the ground that it failed to negative the exceptions under which liquor may be lawfully possessed in this state. This demurrer was overruled, and the first assignment of error is directed at the action of the court in so doing. This indictment is based upon chapter 189 of the Laws of 1918, and a sufficient answer to this assignment is found in section 11 of this act, which provides that in any indictment or presentment for any violation of the act it shall not be necessary to negative the exceptions therein contained.

The next assignment challenges the correctness of the state's instruction on the ground that it did not contain the qualification that the defendant was not guilty if he had the liquor in his possession for the purpose of disposing of the same according to law; the contention being that this instruction authorized a conviction upon proof merely of possession, and that it was in conflict with certain instructions for the defendant which directed an acquittal if the jury believed from the evidence that the liquor was placed in the defendant's home for the purpose of being disposed of according to law.

The instruction complained of told the jury to convict the appellant if it believed from the evidence, beyond a reasonable doubt, that he "did then and there willfully and unlawfully possess and have in his possession intoxicating liquor, to-wit, whisky, in an amount more than one quart, as alleged in the indictment." Instructions granted the appellant told the jury that a justice of the peace may lawfully have liquor in his possession in any quantity if the liquor is in his possession for the purpose of being destroyed according to law or being used in evidence in any case which may be brought before the justice of the peace, and that the appellant should be acquitted unless the jury believed from the evidence, beyond a reasonable doubt, that the whisky found in his home was not placed there by the constable for the purpose of being disposed of according to law. The state's instruction which authorized a conviction upon proof of unlawful possession is not in conflict with the defendant's instructions, which fully informed the jury of the circumstances under which this officer might lawfully possess this liquor. When these instructions are considered as a whole, they correctly announce the law, and they come within the rule announced in Skates v.State, 64 Miss. 644, 1 So. 843, 60 Am. Rep. 70. In support of this assignment the appellant relies on the case of Murdin v.State, 82 Miss. 507, 33 So. 944, in which it has held that in a prosecution for carrying concealed weapons, where there is evidence clearly showing, if believed, that the weapon was carried because of communicated threats against the defendant, it was error to instruct the jury to convict upon proof merely that the weapon was carried concealed. The instructions are not set out in the report of the Murdin case, but an inspection of the original record discloses the fact to be that the instruction there condemned did not contain the qualification that there must be an unlawful carrying of the concealed weapons to authorize a conviction, but, on the contrary, it directed the jury to convict upon proof merely that the weapon was carried concealed. This was in conflict with the defendant's instruction, which directed an acquittal if the jury believed from the evidence that this weapon was carried because of threats that had been made against the defendant and communicated to her, and consequently the jury was left without any proper guide. In that case, however, the court expressly recognized the doctrine of the Skates case that a case will not be reversed where the whole body of instructions taken together announce the law correctly, although one of the instructions for the state ignored a special feature of the defense. In the case at bar the instructions are not conflicting, and, when considered as a whole, correctly and fully announce the law applicable to the facts.

The appellant complains of the refusal of one instruction. As drawn, this instruction was erroneous and therefore properly refused, but if it had been correct, its refusal would not have been reversible error, for the reason that every phase of appellant's defense was fully covered by the instructions granted.

The other assignments of error present no reversible error. The verdict is amply supported by the evidence, and consequently the judgment of the court below will be affirmed.

Affirmed.