219 Miss. 72 | Miss. | 1953
Appellant was charged in the justice court with the unlawful distribution of beer in a county where an election had been held and beer outlawed. On conviction he appealed to the circuit court where he was again convicted, and he appeals here.
It is contended first that the lower court erred in overruling a demurrer to the affidavit for the reason that the affidavit did not charge the per cent of alcoholic content of the beer, and it is contended secondly that a peremptory instruction should have been granted because the proof did not disclose the alcoholic content of the beer in question.
It is next contended that appellant’s requested peremptory instruction should have been granted because the facts of this case fail to show a distribution of the beer in question. The sheriff obtained a search warrant for the search of a place of business operated by appellant. In company with a deputy he went, shortly after dark, to the vicinity of the premises and for about thirty minutes they waited across the highway and kept a watch on the place. An automobile drove up and one person alighted therefrom and had a brief talk with appellant, and the two of them went inside. The place was lighted and the sheriff and his deputy saw the two men go into a back room. In a short time the two came out of the room; the third party came out to his car carry
In the case of Frank Fehr Brewing Co. v. Commonwealth ex rel Oates, Comn’r. of Revenue, 296 Ky. 667, 178 S. W. 2d 197, it was held that under a taxing statute on beer the word ‘ ‘ distribution ’ ’ covers only commercial transactions. It was pointed out in that case that taxing statutes are construed more strictly against the State and in favor of the taxpayer. This same rule applies in the construction of penal statutes. State v. Lee, 196 Miss. 311, 17 So. 2d 277.
The burden of proof in this case was upon the State to show the appellant guilty of the commercial transfer of the possession of the beer beyond a reasonable
The proof here falls short of the burden which the law casts upon the State, for which reason the requested peremptory instruction should have been granted.
Reversed and appellant discharged.