Summary
In Grillis, supra, the Court was dealing with an indictment that attempted to charge a crime under separate statutes enacted at different times rather than a single statute that authorized different punishment.
Summary of this case from Johnson v. StateOpinion
No. 35448.
April 10, 1944.
1. FOOD.
Circumstantial evidence sustained conviction of restaurant proprietor of an attempt to sell for human food the flesh of a diseased animal (Code 1942, secs. 2017, 2338).
2. FOOD.
That restaurant proprietor was told by friendly policeman that, if diseased hog had been inoculated against cholera and was killed instead of being allowed to die naturally, the meat would be good and could be saved, did not furnish a valid excuse for having diseased hog slaughtered and brought to restaurant for sale as human food, but could serve only by way of extenuation (Code 1942, secs. 2017, 2338).
3. FOOD.
In entering promises for sanitary inspections and to investigate conditions detrimental to health, a search warrant is unnecessary if resort to force is not required, particularly in case of a business such as a public restaurant.
4. FOOD.
City health inspectors could lawfully search restaurant kitchen for meat of a diseased animal without a search warrant, though search was made upon information that the law was in fact being violated and not as routine inspection (Code 1942, sec. 2338).
5. FOOD.
Restaurant proprietor, who was convicted under indictment which charged an attempt to sell for human food the flesh of an animal slaughtered when diseased without specifically referring to statute under which offense was charged or alleging that accused was a butcher or engaged in an occupation classifiable with that of a butcher, should be sentenced under section 2338 for an attempt to sell for human food the flesh of a diseased animal, and not under section 2336 providing more severe punishment for a butcher or other person who knowingly sells the flesh of any animal slaughtered when diseased (Code 1942, secs. 2017, 2336, 2338).
6. STATUTES.
Criminal statutes must be strictly construed.
7. CRIMINAL LAW.
Where facts which constitute an offense may fall under either of two statutes or where there is substantial doubt as to which of the two is to be applied, the case will be referred to statute which imposes the lesser punishment.
8. CRIMINAL LAW.
Under the attempt statute, no greater punishment may be administered than that prescribed for the actual commission of the offense attempted (Code 1942, sec. 2017).
APPEAL from the circuit court of Hinds county.
HON. H.B. GILLESPIE, Judge.
Theodore Grillis was convicted of an attempt to sell for human food the flesh of a diseased animal, and he appeals. Judgment affirmed in part and reversed in part and cause remanded for proper sentence.
L.F. Easterling, Will S. Wells, and Jackson, Young Friend, all of Jackson, for appellant.
The court committed error in overruling the motion to exclude the evidence. The only evidence in the record that the appellant committed any of the overt acts charged in the indictment is that the appellant owned the cafe, owned the farm, and that the acts charged in the indictment were done and performed by the employees of the appellant, without prior knowledge or consent of appellant. It is submitted, with deference, that the fact that he owned the farm, owned the truck and owned the cafe could do no more than raise a mere suspicion that the appellant is guilty as here charged.
Billingsly v. Illinois Cent. R. Co., 100 Miss. 612, 56 So. 790; Sorrells v. State, 130 Miss. 300, 94 So. 209; Byrd v. City of Hazlehurst, 101 Miss. 57, 57 So. 360; Pickle v. State, 151 Miss. 549, 118 So. 625; Dill v. State, 149 Miss. 167, 115 So. 203; Cunningham v. State, 49 Miss. 685; Jones v. State, 172 Miss. 597, 161 So. 143; Bullock v. State, 195 Miss. 340, 15 So.2d 285.
In all criminal cases the burden of proof is on the state to prove every essential element of the crime charged beyond every and all reasonable doubt.
Hampton v. State, 99 Miss. 176, 54 So. 722; Hosey v. State, 136 Miss. 5, 100 So. 577; Page v. State, 160 Miss. 300, 133 So. 216; Garland v. State, 130 Miss. 310, 94 So. 210; 22 C.J.S. 881, Sec. 566.
If the verdict of the jury and judgment of the court are upheld in this case they must be upon the mere circumstances of the case, — upon the fact that the appellant, Theo Grillis, owned the farm, owned the hog, owned the cafe, and owned the truck on which the hog was brought to the cafe, which is all of the evidence in this record that he did or committed any of the overt acts charged in the indictment; that presumption of innocence which shields a person from the outset of a trial until he is finally convicted is set aside and overthrown, and inserted in its place is a presumption that a person is guilty merely because he happens to be placed in a particular set of circumstances or conditions. This is not the law and has never been the law.
22 C.J.S., Criminal Law, p. 917, Sec. 599.
Furthermore, the facts as presented by the state are not sufficient to raise a presumption that the appellant might have caused or performed the overt acts charged in the indictment, but merely raise a suspicion that he might have done so, which is never sufficient.
Loggins v. State, 161 Miss. 272, 136 So. 922; Johnson v. State, 186 Miss. 405, 191 So. 127; Ross v. State (Miss.), 42 So. 801; Jackson v. State, 118 Miss. 602, 79 So. 809; Taylor v. State (Miss.), 37 So. 498.
In the case at bar the only evidence offered by the state was the incriminating circumstances, and this court has held on many occasions that such evidence is insufficient, if it is inconsistent with the other proof in the case, and does not tend to prove the guilt of the party charged to the exclusion of every other reasonable hypothesis.
Simmons v. State, 106 Miss. 732, 64 So. 721; Hogan v. State, 127 Miss. 407, 90 So. 99; Nalls v. State, 128 Miss. 277, 90 So. 892; Harris v. State, 153 Miss. 1, 120 So. 206; Melson v. State, 152 Miss. 597, 120 So. 570; Howard v. State, 182 Miss. 27, 181 So. 525; Johnson v. State (Miss.), 198 So. 554.
The court committed error in refusing to grant the peremptory instruction requested on behalf of appellant at the close of the evidence. It is further submitted, with deference, that if the evidence in this case, at the close of the state's case, was sufficient to raise more than a mere suspicion or speculation that the appellant was guilty as charged in the indictment, it could at the very most do no more than raise a mere rebuttable presumption — speculative at that — of his guilt, and could be overcome by direct or positive proof to the contrary.
Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318; Southern Bell Telephone Telegraph Co. v. Quick, 167 Miss. 438, 149 So. 107; Bourgeois v. Mississippi School Supply Co., 170 Miss. 310, 155 So. 209; Pew v. State, 172 Miss. 885, 161 So. 678; Bullock v. State, 195 Miss. 340, 15 So.2d 285; Byrd v. City of Hazlehurst, 101 Miss. 57, 57 So. 360; Compare Algheri v. State, 25 Miss. 584; Hogan v. State, 127 Miss. 407, 90 So. 99; Stokes v. State, 92 Miss. 415, 46 So. 627; Stapleton v. State, 130 Miss. 737, 95 So. 86; Dill v. State, 149 Miss. 167, 115 So. 203, 204; State v. Burns, 278 Mo. 441, 213 S.W. 114; Hammond v. United States, 127 F.2d 752; Mansfield v. Commonwealth, 146 Va. 279, 135 S.E. 700; Ezzard v. United States (C.C.A. Okla.), 7 F.2d 808; Hall v. Commonwealth, 178 Va. 22, 16 S.E.2d 304; 16 C.J. 534, Sec. 1005; 22 C.J.S. 892, Sec. 579.
The court committed error in admitting evidence obtained by unlawful, illegal and unreasonable search and seizure, and in permitting witnesses to testify with reference to such evidence.
Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377; Iupe v. State, 140 Miss. 279, 105 So. 520; Orick et al. v. State, 140 Miss. 184, 105 So. 465; Cofer v. State, 152 Miss. 761, 118 So. 613; D'Aquilla v. Anderson et al., 153 Miss. 549, 120 So. 434; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Constitution of 1890, Secs. 23, 26; United States Constitution Amendments 5, 14.
The indictment is invalid and does not charge a crime against the criminal laws of the State of Mississippi. It is submitted, with deference, that the indictment in the case at bar is fatally defective for several reasons. First, the indictment is conflicting in its language. It alleges that the hog or the flesh of the animal was affected with a disease unknown to the grand jury, which made it unfit and unwholesome for human consumption, and, second, there is a fatal variance between the language of the indictment and the evidence offered in support thereof. It is an elementary rule of law that the indictment must charge the crime in language sufficient to inform the accused of the specific offense of which he is accused. The indictment is in the language of the statute, with the added conclusion based on what evidence we know not that the meat or flesh was unwholesome or unfit for human consumption. The mere fact that the indictment is in the language of the statute, however, does not make it sufficient.
27 Am. Jur. 662, Sec. 103.
The court erred in passing judgment and in sentencing the defendant as for a felony when the crime charged was a misdemeanor.
Floyd v. State, 140 Miss. 884, 105 So. 765; John v. State, 191 Miss. 152, 2 So.2d 800; Barton v. State, 94 Miss. 375, 47 So. 521; Code of 1930, Secs. 793, 1100, 1101, 1102, 4958, 4959, 4970, 4976, 4978; Code of 1930, Ch. 121; Poindexter's Code of 1823, p. 302, Sec. 32; Hutchins' Code of 1823, p. 979, Sec. 14, p. 283, Ch. 13, p. 285; 24 C.J.S. 1193, cases under note 75.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
This prosecution is based on Section 2336, Code of 1942, Section 1100, Code of 1930, and not upon the provisions of Section 2338, Code of 1942, Section 1102, Code of 1930. These two statutes were enacted at different times and for different purposes. The indictment charges an attempt to violate this section, which is covered by Section 2017, Code of 1942, Section 793, Code of 1930.
The indictment charges all of the necessary elements of these two statutes according to the holding of this court in Miller v. State, 130 Miss. 730, 95 So. 83; Stapleton v. State, 130 Miss. 737, 95 So. 86; Stokes v. State, 92 Miss. 415, 46 So. 627, 21 L.R.A. (N.S.) 898; Dill v. State, 149 Miss. 167, 115 So. 203, and other decisions annotated under Section 2017, Code of 1942.
The appellant in his brief discusses the sufficiency of the indictment at considerable length, but he did not demur to the indictment for any defects appearing upon the face of the indictment as required by Section 2449, Code of 1942, nor did he make a motion to quash the indictment for anything not appearing on the face of the indictment as required by Section 2450, Code of 1942. These sections provide the method of raising questions as to the sufficiency of the indictment, first, for defects appearing on the face of the indictment, and, second, for defects not appearing on the face of the indictment but which might be raised, if properly pleaded, for any defect that would render the indictment illegal or void. These sections are the exclusive method of raising question as to indictment unless the indictment was utterly void, and the facts attempted to be pleaded, if well pleaded, would charge no crime.
Under the facts the jury had a right to convict the appellant of the offenses charged. The jury is the judge under such facts of their sufficiency and may find a verdict of guilt based thereon.
City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785.
The appellant was engaged in a business so affecting the public use that his place of business became lawfully subject to inspection by the health authorities to see that no unwholesome food was served and that sanitary conditions were observed. The health authorities in going through the premises to make inspection thereof were not trespassers but were in the discharge of lawful duties imposed upon them by the statutes of the state and regulations of the health authorities of the state.
Code of 1942, Secs. 7019, 7022, 7029, 7031, 7043, 7114, 7115, 7119.
The provisions of Section 23 of the State Constitution and the Fourteenth Amendment to the Federal Constitution are not violated in the present case.
Goodman v. State, 158 Miss. 269, 130 So. 285; Consolidated Rending Co. v. State of Vermont, 207 U.S. 541, 52 L.Ed. 327; 11 Am. Jur. 991, Sec. 259; 47 Am. Jur. 508, Sec. 12.
Argued orally by Forrest B. Jackson, for appellant, and by Geo. H. Ethridge, for appellee.
Appellant was convicted of an attempt, that is, of overt acts in the design and endeavor, Section 793, Code 1930, Section 2017, Code 1942, to violate Section 1100, Code 1930, Section 2336, Code 1942, or else Section 1102, Code 1930, Section 2338, Code 1942, which makes it a criminal offense for any person to sell the flesh of any diseased animal.
Appellant at the time in question operated a restaurant in the City of Jackson, and also maintained a small farm on which there were about sixty head of hogs. On Wednesday the hog here involved was discovered by appellant to be sick and down. Appellant sent for a veterinarian and personally assisted the veterinarian in giving the animal several injections. The next day, Thursday, the hog was slaughtered by an employe of appellant in charge of the farm who brought the dressed carcass to appellant's cafe, where on Friday it was discovered and condemned by the inspectors of the city health department. It is not claimed, or in any way intimated, that meats or any part thereof brought to this cafe were intended for any other purpose than for the preparation of food for human consumption.
It is earnestly insisted, nevertheless, that the evidence is insufficient to sustain the verdict. Because of the fact that the employe who handled the slaughter of the hog and who took it to the restaurant was missing when the case came on for trial, the state was obligated to supply the proof by evidence which in some of its features is circumstantial; but without going into details which would serve no useful purpose, we are of the opinion that when all the testimony is reconciled which can be reconciled and interpreting the proved circumstances in the only reasonable way in which they can be interpreted, the jury was warranted in believing, and this beyond a reasonable doubt, that a certain friendly policeman, who had seen the hog on Wednesday afternoon, told appellant that night that if the hog had been inoculated against cholera — and the testimony shows that this had been done — and that if the animal were killed instead of being allowed to die naturally, the meat would be good and could be saved, and that the next day, moved by the thought that if questioned he could take refuge under the color of official sanction, appellant directed his employe to do as was done and which was sufficient to constitute the offense charged — and as charged against appellant. As a matter of course, the stated circumstance furnishes no valid excuse, and can serve only by way of extenuation.
Appellant raises the point that the inspection or search of the restaurant kitchen where the diseased meat was found on Friday morning was unlawful because without a search warrant. The consensus of the authorities is that no such warrant is necessary in entering premises for sanitary inspections and to investigate conditions detrimental to health so long as no resort to force even of the mildest nature is required, and especially is this true as respects a business such as a public restaurant. A sufficient number of the cases is gathered in the notes 47 Am. Jur. p. 510, title Searches and Seizures, Section 13.
When a person carries on a business for the dispensation and sale of food for human consumption and members of the public are invited to become patrons, the proprietor of the establishment thereby impliedly consents that the public, through its authorized departmental agents or officers, may from time to time make such reasonable inspections as will protect against unwholesomeness of the food and against any unwholesome conditions surrounding the preparation thereof, and against disease which might result therefrom, and so consenting the search and seizure prohibition of the state and federal constitutions is not involved, so far as health officers are concerned. D'Aquilla v. Anderson, 153 Miss. 549, 120 So. 434, relied on by appellant, is not a health inspection case, and therefore if there were no other reason, is not in point.
Appellant concedes that the guaranties against unreasonable searches and seizures do not apply to routine inspections by sanitary officers, those made in the ordinary or every day pursuit of their duties, but contends that in this case they went to the restaurant in pursuance of information received by them that the law had been or was about to be violated and that they went not to inspect but to search for evidence whether the information was true. It would be a strange rule that would permit health officers, without previous information, to inspect to discover whether the health laws are being complied with — whether such laws are being violated — and yet would cut off this right if they should have happened to receive information in advance that the law was in fact being violated, which would be to say that the more urgent the duty to inspect, the less the right to make it. We cannot subscribe to the contention.
We have laid aside, but it is a fact moreover, that no objection was made by any of those in charge of the restaurant at the time the search or inspection was made.
We have examined the other assignments and find no reversible error except that we are of the opinion that appellant's point that he was sentenced under the wrong statute is well taken and must be sustained.
Section 1100, Code 1930, Section 2336, Code 1942, reads as follows: "Any butcher or other person who shall knowingly sell the flesh of any animal . . . slaughtered when diseased . . . shall, on conviction thereof, be punished by imprisonment in the penitentiary not more than five years nor less than one year."
Section 1102, Code 1930, Section 2338, Code 1942, reads as follows: "If any person shall sell or offer for sale as human food, the flesh . . . of any diseased animal, . . . such person shall be fined, on conviction, not less than one hundred dollars and imprisoned not less than thirty days."
There is no mention in Section 1100 of a sale for human food, and in Section 1102 nothing is said about slaughter when diseased. In the indictment both these elements are charged. The indictment was evidently drawn in an effort to make it come under either of these sections, and neither of them is specifically referred to in the indictment. It is not charged that appellant is a butcher, or that, under strict construction which must be extended to criminal statutes, his occupation was such as may be classified with that of a butcher.
The case, then, is one for the application of the rule that when the facts which constitute a criminal offense may fall under either of two statutes, or when there is substantial doubt as to which of the two is to be applied, the case will be referred to the statute which imposes the lesser punishment. See cases cited 24 C.J.S., Criminal Law, Sec. 1979, p. 1193, under Note 75. And under the attempt statute Section 793, Code 1930, Section 2017, Code 1942, no greater punishment may be administered than that prescribed for the actual commission of the offense attempted.
The judgment will be affirmed on the issue of guilt, but will be vacated as to the punishment, and the case will be remanded so that sentence may be imposed under Section 1102, Code 1930, Section 2338, Code 1942.
Affirmed in part and reversed and remanded for proper sentence.