Opinion
No. 34185.
December 9, 1940.
1. INTOXICATING LIQUORS.
In prosecution for unlawful possession of intoxicating liquor wherein testimony disclosed that accused was seen at place where whisky was when accused stooped over and picked up something before making deliveries to customers, whether accused visited the place where whisky was located on the right of way to get any of legitimate articles of merchandise which accused kept only on inside of building for sale was for jury.
2. INTOXICATING LIQUORS.
Evidence sustained conviction of unlawful possession of intoxicating liquor.
3. CRIMINAL LAW.
In prosecution for unlawful possession of whisky, permitting state to show that accused in possession of the whisky also had some wine about the premises was not prejudicial.
APPEAL from the circuit court of Copiah county; HON. J.F. GUYNES, Judge.
J.H. Garth, of Hazlehurst, for appellant.
The indictment limited the admissible evidence against the appellant to the unlawful possession of whiskey. In the opinion of the attorney for the appellant the court should not have permitted the state to offer any evidence with reference to both whiskey and wine. The testimony conclusively shows that the officers found the whiskey at one place and the wine nearby but another place. Both the whiskey and the wine were found on the highway right-of-way and were not found upon the premises of the appellant. The officers did not testify that the appellant had any connection whatsoever with the whiskey or the wine. The nearest that the officers could come to make out a case against the appellant was that one of the officers testified that he saw the appellant sometime prior to the time when they found the whiskey and wine walk to the place where the whiskey and wine were found. The officer did not state whether the appellant was at the place where the whiskey was found or at the place where the wine was found. All of the officers did testify, however, that the whiskey was found at one place and the wine found nearby, but at a different place. One of the officers testified that he saw the appellant pick up a package at this place. There was no testimony, however, with reference to what the package contained. There was no testimony that the package was whiskey or wine.
The entire case against the appellant is based upon mere suspicion and the record discloses no evidence whatsoever proving that the appellant had possession of or control over any intoxicating liquor.
Mere grounds for suspicion do not justify a conviction of crime.
City of Hazlehurst v. Byrd (Miss.), 57 So. 360.
This court has held that the mere presence of a person at a still will not authorize a conviction of that person for the unlawful possession of the still.
Medlin v. State, 143 Miss. 856, 108 So. 177; Tallent v. State (Miss.), 119 So. 175; Ray v. State, 175 Miss. 623, 168 So. 617.
This court has held in many cases that the guilt of an accused must be proved beyond a reasonable doubt.
King v. State, 21 So. 235, 74 Miss. 576; Lamb v. State, 79 So. 849, 118 Miss. 693; Garland v. State, 94 So. 210, 130 Miss. 310; Loggins v. State, 136 So. 922, 161 Miss. 272; McLaurin v. State, 113 So. 445, 148 Miss. 53; Johnson v. State (Miss.), 191 So. 127.
The state failed to prove by direct or circumstantial evidence that the appellant unlawfully possessed or controlled intoxicating liquor in Copiah County, Mississippi and, therefore, has failed to prove the venue of the crime charged in the indictment.
None of the officers who testified with reference to finding the whiskey and wine on the highway right-of-way near the premises of the appellant testified that the whiskey and wine were found in Copiah County, Mississippi. None of these officers testified that the premises of the appellant were located in Copiah County, Mississippi. None of the officers testified that the appellant exercised any control over the whiskey and wine in Copiah County, Mississippi. None of the officers testified that the appellant had any connection with the whiskey and wine in Copiah County, Mississippi. There is no evidence whatsoever proving that the appellant had the unlawful possession of whisky and wine in Copiah County, Mississippi, nor in any other county in the State of Mississippi.
Proof of venue in criminal cases is jurisdictional, and the failure to make such proof may be objected to for the first time in the Supreme Court.
Johnson v. State (Miss.), 191 So. 115; Kitchens v. State, 191 So. 116.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
The evidence shows that the raid which was made on the premises of appellant and on property adjoining it disclosed both whiskey and wine, although the two liquors were not found in exactly the same spot. The proximity of these two types of liquors, under all circumstances, indicates that they were possessed by one and the same party. They were found at the same time and under the same circumstances and, if evidence of one was admissible, so was the other, as we think.
Appellant was seen to go in and out of the building waiting on automobiles which came up to his place of business. He was seen to go to a certain spot off of his premises but on the right-of-way of the highway, stoop over, pick up something and deliver that something to an awaiting automobile. This procedure seems to have occurred more than once. Subsequent investigations revealed that wine and whiskey were concealed on the right-of-way adjoining this place of business.
It is in evidence that those things which were handled at this place of business as legitimate articles of merchandise were located in the building. No part of the legitimate stock was stored outside of the building anywhere. Under all of the facts and circumstances, we think the record clearly shows that this cache of liquor and wine belonged to appellant and that he was engaged in disposing of it as and when customers called for it. Under the testimony of the officers, it is clear that appellant was in the conscious possession of this liquor and any motion to exclude or request a directed verdict would be improper and should be denied.
The evidence shows that the place of business operated by appellant was two and one-half to three miles north of Crystal Springs, on Highway 51. The district attorney asked the witness where all of this occurred, and he stated that it was in Copiah County, State of Mississippi. Appellant takes the position that this answer had reference to where the search warrant was procured and to whom and when it was returnable. We think that a fair construction of this testimony would be that it related to all of the things which happened both at the raid as well as prior thereto when the search warrant was being procured.
The appellant was convicted of the unlawful possession of intoxicating liquor, to-wit, whisky; whereupon, he was sentenced to pay a fine of $350, and serve a term of ninety days in jail.
He owns and operates what is known as Sim's Place on U.S. Highway No. 51, two or three miles north of the City of Crystal Springs in Copiah County. In his place of business he keeps for sale coca cola and other soft drinks, cigarettes, chewing-gum, and sandwiches. On the night of Sunday, August 6, 1939, the sheriff of the county in company with two of his deputies went to this place armed with a search warrant and looking for intoxicating liquors. On arrival two of them took their stand behind the building in the dark and the other went out in front near the highway, from where they all watched the appellant deliver a package to the occupants of two or three automobiles in succession that came to the place for service. In each instance, he went to a place beside his driveway entrance, but on the right-of-way of the public highway, about twenty-one steps from his building, stooped over, picked up something and returned to the automobile of the customer and delivered what the officers termed a "package." The witnesses did not undertake to say that the packages contained whisky, but frankly admitted that they were unable to swear that they did contain whisky. Hence, the evidence may have been insufficient to establish a sale of whisky, if that had been the offense charged. But on the issue of possession, it was shown that within about ten minutes after the last delivery, the officers visited the place on the highway right-of-way, where the appellant had been seen to go, and found ten pints of whisky and some wine nearby. The testimony is that the appellant was seen at the place where the whisky was when he stooped over and picked up something each time before making the deliveries. It was therefore for the jury to say whether he visited the place where the whisky was located on the right-of-way to get any of the articles of merchandise which the evidence shows he kept only on the inside of the building for sale.
We are of the opinion that the proof was sufficient to show circumstantially that he was in the conscious control and possession of the "cache" of whisky found on the right-of-way, without regard to the lack of positive testimony as to what may have been in the packages delivered to the customers.
On the question of venue, we think that the testimony as a whole is sufficient to show that Sim's Place is located in Copiah County, Mississippi, where the indictment was returned and the conviction had.
Nor do we think that it was harmful error to permit the State to show that one in the possession of intoxicating liquors also had some wine about the premises.
Affirmed.