65 So. 641 | Miss. | 1914
delivered the opinion of the court.
Omitting the formal parts, the indictment in the present case reads—
“did unlawfully on the 7th day of October, 1913, within-said district, county and state, become the agent of one-Will. Hughey,..to procure for him, the said Will. Hughey, four quarts of whisky out-of the state of Mississippi, and to bring into said state, county, and district above-mentioned said four quarts of whisky, and intended'to-deliver the same to the said-Will Hughey. And that.in-pursuance of such agency, the said Jim Owens unlawfully • did act as agent, and did assist Will Hughey, the purchaser, in effecting the sale of whisky, and unlawfully did, on or about the 7th day of October, 1913, procure out of the state.of .Mississippi, and bring into the same, .and unto the county and district aforesaid, the said four-quarts' of whisky, with the intent of him, the said Jim Owens, to deliver the same to the said Will Hughey, as agent of the said Will Hughey, against the peace and dignity of the.state of Mississippi.” :
To this indictment a demurrer was interposed.- The demurrer was sustained, and defendant was discharged, from which judgment the state prosecutes this appeal
“From a careful reading of the affidavit in this case it appears that appellee had gone out of the state of Mississippi, procured whisky for Will Hughey, and delivered same to him in Mississippi, thereby acting as-agent for the said Will Hughey in violation of the Code-of 1906, section 1771, amended 1908, chapter 115.”
It will be noted that the alleged crime charged against appellee is alleged to have been committed on the 7th day of October, 1913. The indictment is therefore-drawn under chapter 115 of the Laws of 1908. A comparison of section 1771 of Code .1906 with the amendment of this section appearing on page 118, Laws of Mississippi 1908, discloses an'.important change in the statute, by omitting therefrom these words, “the sale of which without license is unlawful under the provisions-of this chapter, in any county, district, territory, or municipality in. which the Sale' of such liquor, bitters or drinks are prohibited by law, ’ ’ and inserting in lieu thereof these words, “the sale of which is unlawful under the-provisions of this act.”- Under section 1771, Code 1906, it was made a misdemeanor to assist “in effecting the sale” of intoxicating liquors in any county, district,, or municipality* wherein the "sale of such liquors 'was forbidden by law. This court, construing this section, in Powell v. State, 96 Miss. 608, 51 So. 465, said:
“The crime defined' by the statute is committed'when-the assistance rendered either the seller or the purchaser-in effecting a sale is rendered in a place where such salé-is prohibitd by law.”
The amendatory statute (chapter 115, Laws of 1908) provides that the crime is committed when assistance is-rendered to the seller or purchaser in effecting a sale, “which is unlawful under the provisions of this act'.”' The indictment in this case charges the defendant with having assisted Will Hughey to buy whisky in a place-outside the state of Mississippi, and of course the sale-
It is not a violation of the law to buy whisky outside the state, and as the sale outside the state was not unlawful, the indictment charges no violation of any of the provisions of chapter 115, Laws of 1908.
Affirmed.
