2 Morr. St. Cas. 1291 | Miss. | 1872
The plaintiff in error was indicted and convicted for unlawfully selling spirituous liquors in less quantity than five gallons, within five miles of the University of Mississippi.
Several bills of exception were taken in the court below, which present the grounds of error here assigned.
The first ground of exception was, that after the jury had been empaneled and sworn, the district attorney objected to one Addington, who had been sworn on the panel, sitting as a juror in the case, because there were then pending in that court several indictments against him for retailing spirituous liquors; and the court sustained the objection, and set aside the juror, and caused another person'to be summoned and sworn in his place.
It is held by this court that the court below has the power to*
•As to the sufficiency of the objection to the juror, that is a matter which should rest, :for the • most part, in the sound discretion of the court, especially in cases- of misdemeanor. It has been held to be a sufficient objection to the competency of a jtiror, that there are reasonable grounds- to suspect that he will act under some undue influence or prejudice. Whart. Or. L., 858. The' fact that a juror ’stood indicted and untried for the same kind of offense as that upon which he was called upon to try another person, would most naturally create a bias in his mind, and a disinclination to finding a verdict against the accused. For the verdict would, in a greater or less degree, have the effect of a precedent, either for or against a conviction in similar cases, and the situation of such a juror appears to come fully within the principle which requires a juror’s: mind to be free from all bias and prejudice, and especially such as has relation to his own interest.
It does not appear that there was any objection to the - competency of the juror sworn in the place of the one who was set aside,'so that it must be taken that the case was tried by a fair and impartial jury. We think that this ground of error is untenable.
The next error assigned applies to the instructions. asked in behalf of the accused and refused- by the court.
The second instruction is as follows: “ If the jury believe,. from the testimony, that the defendant sold the liquor to witness in good faith, for medicinal purposes, believing, at the time,' that witness wanted the liquor for medicinal purposes,
The evidence in relation to the sale consisted of the testimony of James B. Dunlap, who testified that he had obtained spirituous liquor in quantities, never more than a quart at a time, as many as twelve times; that sometimes he wanted it for medicinal purposes, and sometimes not; that once he got it from the-defendant, when witness was intoxicated, but was not certain whether defendant knew he was intoxicated or not, but thinks he could have known it, because other persons could tell when, he was intoxicated. That defendant always asked him if he-wanted the liquor for medicinal purposes before he got it, and sometimes he told him it was for that purpose, and sometimes he answered, “ Of course.” That he did not tell him directly and positively that it was for medicinal purposes when it was not, but that he always replied to defendant’s question whether it was for medicinal purposes, “ Of course,” in an emphatic-way. That witness was a married man and had a family; that-defendant was a druggist at Oxford, within five miles of the. University of Mississippi.
It has been settled by this court that, in prosecutions under the statute upon which this indictment is founded, a. druggist-selling spirituous liquor in the quantities and within the limits prohibited by the statute, cannot justify himself by the mere representations of the purchaser that the liquor was purchased, for medicinal purposes, but that it devolves upon him to prove that it was purchased for that purpose. Haynie v. The State, 32 Miss., 400.
It is clear, from the evidence, that some of the liquor in this case was purchased for other than medicinal purposes; and hence the instructions, which rely as a justification upon the-belief of the defendant, founded on the statements of the purchaser, that the liquor was for medicinal purposes, were properly refused. But, in addition to this, it is quite apparent from the testimony that these representations of the purchaser were
' These instructions were, therefore, properly refused.
The fourth and fifth instructions state the general rule, that if the jury had a reasonable doubt of the defendant’s guilt, they should acquit.
• This, as a general rule of law, is unquestionably correct; and the instructions should have been given. But yet, the refusal of them is not necessarily error. As abstract propositions, it is true, they are correct. But did the refusal to give them, prejudice the defendant ? It clearly could not have had that effect; for, upon the evidence, there was no such state of doubt as could be resolved in his favor. The sale was fully proved, and there was an entire .failure to show that it was made under the circumstances of justification stated in the case above cited. If the instructions had been given, there was not a state of case made to which they' could have had any proper application; and they could not, therefore, have benefited the defendant. Hence the refusal of them is no ground of reversal.
The instructions granted at the instance of the state are erroneous, for the same reason as those asked in behalf of the defendant ; in holding that the representations of the purchaser, in order to justify the sale, must have been such as to satisfy a reasonable man that the liquor was purchased in good faith for medicinal purposes. But this error was favorable to the defendant, and he cannot complain of it.
Upon consideration of the evidence, it is clear that the judgment is correct, and that the technical errors committed could not, in law, have operated to the prejudice of the defendant. The judgment is, therefore, affirmed.