Harris v. State, 74 So. 323

Harris v. State

74 So. 323 | Miss. | 1917

Holden, J.,

delivered the opinion of the court.

The appellant, Charles Harris, was indicted and convicted in the circuit court of Tishomingo county on the charge of selling intoxicating liquors. He appeals here, and contends that the lower court erred in not excluding the testimony offered by the state and discharging him, because, he contends, the testimony was insufficient to establish his guilt as charged in the indictment.

The testimony introduced by the state at the trial shows that three young white men, Allie Brown, W. H. Clay, and Dalton Harris, went to the appellant’s house in a buggy one afternoon about dark for the purpose of purchasing some whisky. They stopped a little distance down the road from appellant’s house, and Allie Brown went in quest of the liquor. He went up to the appellant’s house and gave him the money for the whisky which he desired to purchase, and appellant walked off a few steps, but returned and handed back the money to Brown, stating that “he did not have any whisky, but *459there was another fellow up there who had some whisky and he would tell him to bring the whisky to ns.” Allie Brown then returned to the road about thirty yards behind the buggy and waited there until some man unknown to him came with a quart of whisky, which he received and paid for.

With this testimony before the jury, the court instructed the jury that, if they believed from the evidence beyond a reasonable doubt that Charley Harris aided or abetted or assisted in the unlawful sale of liquor at the time and place alleged in the indictment, then they would find him guilty as charged. The jury found the defendant “guilty of aiding and assisting in the unlawful sale of intoxicating liquor. ’ ’

It will be observed that the charge here is not that the appellant was acting as “agent” in the sale of the liquor, but he is charged with selling the liquor. The proof offered by the state does not sustain the charge in the indictment, as the testimony does not show that the appellant did anything in aid of the sale of the liquor. 'All that the appellant did, if he did anything at all after leaving Witness Brown, was to aid the purchaser in buying the whisky. And it being no violation of law for a person to purchase liquor, there can be no violation of the law by the appellant here in merely aiding the purchaser in buying the liquor at his instance. Such a state of facts may at some time in the future constitute a violation of law, should the legislature see proper to enact a law penalizing the purchaser as well as the seller of liquor.

In view of the above conclusions, we are compelled to hold that the proof offered by the state in the lower court was insufficient to sustain the indictment, and therefore the lower court erred in refusing to exclude the testimony of the state and discharging the appellant.

The judgment of the lower court is reversed, and the appellant discharged.

Reversed.