Miller v. State

68 Miss. 533 | Miss. | 1891

Woods, C. J.,

delivered the opinion of the court.

The statute, code 1880, § 2953, on which the indictment in this case was framed, makes it unlawful “ to keep open the bar, or place where such liquors are sold, or to sell any such liquors,” on Sunday. The offense here charged was the keeping open the bar.

The statute was designed to prevent sales of liquors by retail dealers on Sunday, and to prevent access to the place where the liquors were kept for ordinary sale. To not keep open the bar is equivalent to keeping it closed. But was it the purpose of the law makers to require the place where liquors are sold to be closed absolutely, under all circumstances, against all persons, even the proprietor and his employes, and against the officers of the law properly demanding admission ? That would be a compliance with the very letter of the law. But in human jurisprudence, as in the divine, “ the letter killeth: the spirit giveth life.” The spirit of the law requires bars closed in such manner, and to such extent, as will prevent usual and ordinary access to them. But this will not forbid the proprietor going into his place of business, although he open the door of the bar to do so; nor would it justify the proprietor, or his servant, in refusing to open, to permit an officer to enter to execute his office; nor would a bar-keeper be chargeable with criminality in thus momentarily opening his door in other cases-readily conceivable.

It is not contended for the state that the bar of defendant was opened with the purpose or intent of giving the constable and his prisoner, or those who idly entered after them, access to the place where the liquors were sold. The door was closed and fastened on the inside when the officer knocked ; and it was opened in response to his request, for the sole purpose of permitting him to see if a certain person, desired by the prisoner as security on an appearance bond, was inside the house. When the officer ascertained that the person sought was not in the room, all those who had entered instantly retired.

This was the only evidence of the keeping open of the bar, as charged in the indictment, and was insufficient to justify the conviction.

It is unnecessary to pass upon the many other questions, thought by appellant’s counsel to be involved, in view of the foregoing opinion on the point considered.

Reversed and remanded.