No. 23337 | Miss. | Mar 15, 1923
delivered the opinion of the court.
Appellee was indicted by the grand jury of Yazoo county of a crime defined by Chapter 211, Laws of 1922, viz. of owning, controlling, and having in his possession the integral parts of a still. Appellant by demurrer raised the question as to whether the indictment charged any offense under said statute. The trial court sustained the demurrer and quashed the indictment, from which judgment the state prosecutes this appeal.
The indictment, leaving off the formal parts, is in this language :
“The grand jurors for the state of Mississippi, taken from the body of good and lawful men of Yazoo county, elected, impaneled, sworn, and charged to inquire in and for Yazoo county at the term aforesaid of the court aforesaid, in the name and by the authority of the state of Mississippi, upon their oaths present Pete Speaks in said county, on the 16th day of October, A. D. 1922, did then and ¡here willfully and feloniously own, control, and knowingly have in his possession the integral parts of a still', contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Mississippi.”
The statute under which appellant was indicted (chapter 211, Laws of 1922) is in this language:
“Section 1. Be it enacted by the Legislature of the state of Mississippi, that it shall be unlawful for any person, persons or corporations to own or control, or knowingly have in his, their or its possession any distillery commonly called a still/ or any integral part thereof, except as hereinafter provided.
“Penalty for Violation.
“Sec. 2. That any person or persons violating the foregoing section shall be guilty of a felony and upon conviction thereof shall be confined in the penitentiary for a term not exceeding three years or by a fine of not less than three hundred dollars or both such fine and imprisonment.
“Exceptions under This Act.
“Sec. 3. That it shall not be unlawful for the following to own or to have in possession a distillery or still:
■ “(a) Where the same is used exclusively for the distillation of rosin products.
“(b) Where the same is used exclusively for the distillation of water.
“(c) Where the same is kept and lawfully used in any laboratory.
“(d) Where the same is in the possession of an officer of the law, to be disposed of according to law.
“(e) Where the person or corporation can prove that the same is in his or its possession for the purpose of being delivered up to an officer of the law to be disposed of according to law.”
It will'be observed that the indictment fails to negative by averment that appellant was not within any of the exceptions of the statute.
The authorities state the principle involved in varying phraseology, but we do not understand that there is any ■real conflict among them. Some of them state that, if the exception or proviso appears in the enacting clause of the statute, the indictment must negative the exception; others that, where the enacting clause defines the crime and also contains the exception, the indictment musf nega
The appellant was indicted for owning, controlling, and knowingly having possession of parts of a still. Under the statute it is not unlawful to have either parts of a still or an entire still in one’s possession for the distillation of rosin products or of water or where the same is kept and lawfully used in a laboratory, or where it is in the possession of .an officer to be disposed of according to law. If these exceptions are not negatived by proper averment, no offense is charged.
Under sections 1103, 1104, 1105, Code of 1906 (Hemingway’s Code, sections 829, 830 and 831), making it a crime to carry concealed certain weapons therein described and prescribing the punishment therefor, the exceptions defined by said statute do not have to be negatived in the indictment because the statute provides that such exceptions are defensive alone. And, furthermore, the section of that statute defining the crime denounced does not contain the exceptions.
Affirmed.