Jenkins v. State

82 Miss. 500 | Miss. | 1903

Calhoon, J.,

delivered the opinion of the court.

The indictment is drawn under the concluding clause of code, sec. 1594. That whole section is in these words:

“Sec. 1594. If any person, whether having license to retail liquors or not, shall sell any vinous, alcoholic, malt, intoxicating or spirituous liquor, or intoxicating bitters or other drink which if drunk to excess will produce intoxication, in any quantity to any person in the habit of becoming intoxicated, to any Indian, or to any minor, or, not being a parent, guardian, or in loco parentis to the, minor, shall procure such liquor, bitters or drink for a minor, or shall procure the same for an Indian, or for a person in the habit of becoming intoxicated, he shall, on conviction, be fined not less than one hundred dollars nor more than one thousand'dollars, or imprisoned in the county jail not exceeding six months, or both.” (Italics ours.)

■It is true that the indictment reads: “Did unlawfully procure vinous and spirituous liquor for W. S. Brown, knowing the said Brown to be in the habit of becoming intoxicated, not then and there being the parent and guardian of said Brown, nor in loco parentis to said Brown, etc.” The word “knowing” is pure surplusage, knowledge being not at all essential to tbe offense. The other words underscored in the above copy of the statute are also useless and immaterial, since they refer to minors only, as will be seen by reading the whole of section 1594. Here there is no charge that Brown was a minor, and no pretense that he was in the evidence. So we repudiate the view that a new trial should be had because there is no evidence to show negatively that Jenkins was not parent, guardian, or in loco parentis to Brown. The words do not involve such a description of the offense as to compel proof.

Neither do we subscribe to the contention that the offense is not completed if the liquor is not actually delivered to the drunkard. One of the definitions given by Webster of the word “procure” is “to acquire or provide for one’s self or for another.” Jenkins was provided by the inebriate with money to buy in Alabama, just across the line, and bring to him the. liquor. Jenkins accordingly bought it in Alabama, and brought it to Mississippi for delivery to Brown, when he was arrested. It is idle to say he did not bring it to Mississippi. True, he gave it, for some purpose of his own, easily to be surmised, to á boy on the train for notice and safe-keeping. But he came with it on that same train, and was the real custodian. The boy was his mere instrument.

Affirmed.