Norris v. State

108 So. 809 | Miss. | 1926

^* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 769, n. 91; p. 989, n. 85; p. 1006, n. 67 New; p. 1049, n. 82; p. 1050, n. 84; p. 1053, n. 93. Appellant was indicted and convicted in the circuit court of Clarke county of the unlawful sale of intoxicating liquors and fined five hundred dollars and sentenced to six months' imprisonment. From that judgment he prosecutes this appeal.

Two questions are argued on behalf of appellant: Whether the venue of the crime was sufficiently proven; and the giving of an instruction for the state which told the jury that the law took judicial notice that whiskey was intoxicating and omitted the requirement of the law that the evidence was required to show guilt beyond reasonable doubt. We will consider the questions in the order stated.

Without setting out the evidence with reference to the venue of the crime, we deem it sufficient to say that the only fair inference that could have been drawn therefrom was that the crime was committed in Clarke county. It is true that no witness testified in so many words that the crime was committed in Clarke county, but that was not necessary. Venue may be proven as any other material fact in a cause. It may be proven by direct, positive testimony, or it may be proven by circumstantial evidence. We think the circumstantial evidence in this case excludes every reasonable hypothesis that the crime of which appellant was convicted was committed elsewhere than in Clarke county.

The instruction was erroneous, in that it failed to inform the jury that appellant's guilt had to be proven beyond reasonable doubt. However, that error was fully cured by two instructions for appellant in which the jury were told that they could not convict appellant unless his guilt was shown by the evidence beyond a reasonable doubt. This court has often held that all of the instructions in a case should be read together, and when they can be made to so fit into each other as to announce correct principles of law, then errors in particular instructions are harmless. When so construed, if the jury is given the true guide for reaching a proper verdict, errors in individual instructions can do no harm.

Criticism of the instruction because it told the jury that the law took judicial notice that whiskey was intoxicating is a little out of the ordinary, it is true, but in a way it embodied the correct principle of law. By that instruction the court meant to tell the jury, and the jury must have so understood, that the state did not have to prove that whiskey was intoxicating. That is the law. The statute prohibits the sale of whiskey. Whiskey is denominated by the law as intoxicating; proof that a liquid is whiskey is proof that it is intoxicating. The fact that whiskey is intoxicating perhaps could be said to be a conclusive presumption of law. There was really no substantial error in that respect.

Affirmed.