Simmons v. State

59 So. 849 | Miss. | 1912

Reed, J.,

delivered the opinion of the court.

Appellant was indicted for acting as agent of the buyer in the unlawful sale of intoxicating liquor. The indictment is under section 1771 of the Code of 1906, which declares that any person who acts as agent or assistant of either the seller or purchaser in effecting the sale of liquor is guilty of a misdemeanor. It appears from the testimony of the state that Alcus Rhymes gave appellant seventy-five cents, and that appellant contributed seventy-five cents himself, and then went to the house of Clemens Magee and purchased a bottle of whiskey for the price of one dollar and fifty cents. Rhymes drank and treated out of the bottle. Appellant denied that Rhymes had contributed seventy-five cents.

Appellant was tried and convicted. He claims that the court committed error in refusing to give the following instruction: “The court instructs the jury, for the defendant, that if yon believe from the evidence that Bhymes and Simmons each contributed seventy-five cents for the purpose of buying one quart of whiskey, and Simmons paid the money over to Clemens for the quart of whiskey, for himself and Bhymes, then yon will find the defendant not guilty.” Section 1771 of the Code of 1906 is a part of the general plan and scheme of the laws of Mississippi to prevent the sale of intoxicating liquors, and it goes to the extent of making any one who acts as agent, or assists the purchaser, as well as the seller, in effecting the sale, guilty.

It appears from the evidence in this case that Bhymes wanted to buy some whiskey and asked appellant’s assistance in attaining his purpose; that, instead of buying the quantity desired by Bhymes, appellant added the same amount of money for himself, and then purchased the liquor in question for the use of both. The fact that he purchased for his own use an undivided portion does not alter the fact that he aided and assisted Bhymes in buying his portion of the liquor. The mere device of putting the liquor in the same container does not disguise the fact that he aided and assisted as joint buyer, and also assisted the seller in effecting the sale. This is not a case where the purchase of whiskey is made for the use of the purchaser alone, but it goes further, and embraces an aiding and assisting of a buyer to purchase and the seller to sell; and that appellant had an undivided interest in the liquor sold and purchased in no wise changes the essential facts.

Affirmed.