Buford v. State

• Court: Mississippi Supreme Court
• Writing for the Court: SMITH, C. J.
• Citation: Buford v. State, 146 Miss. 66, 111 So. 850 (Miss. 1927)
• Decision Date: 21 February 1927
• Docket Number: 25764
• Parties: BUFORD v. STATE. [*]

111 So. 850

146 Miss. 66

BUFORD v. STATE. ^[*]

No. 25764

Supreme Court of Mississippi

February 21, 1927

Suggestion of Error Overruled March 28, 1927.

(In Banc. February 21, 1927. Suggestion of Error Overruled)

1. INTOXICATING LIQUORS. Law, providing that no property rights shall exist in liquor, held not to repeal laws prohibiting sale of liquor (Laws 1918, chapter 189, section 5).

Laws 1918, chapter 189, section 5, providing that no property rights shall exist in liquors, held not to have affected the repeal of statute prohibiting the sale of intoxicating liquor, in view of legislative history (Code 1906, sections 1746, 1748; Laws 1908, chapter 115; Laws 1912, chapter 214; Laws 1916, chapter 103) showing no conflict in prior statutes, one of the provisions of which is brought forward in present act.

2. INTOXICATING LIQUORS. Jury. Law authorizing state in liquor prosecution to give evidence of offenses committed before date alleged in indictment held constitutional (Hemingway's Code, section 2098; Const. 1890, sections 26, 31, 32).

Code 1906, section 1762 (Hemingway's Code, section 2098) authorizing state in liquor prosecutions to give evidence of offenses of same character committed anterior to date laid in indictment, held not in violation of Const. 1890, sections 26, 31, 32, as depriving accused of right to be advised of accusation, depriving him of jury trial, or denying or impairing rights retained by, and inherent in the people.

3. INTOXICATING LIQUORS. Failure of indictment to inform defendant names of persons to whom sales of liquor were made held not in violation of Constitution (Const. 1890, section 26).

Failure of an indictment, in prosecution for sale of intoxicating liquor, to inform defendant of names of persons to whom sales were made, held not in violation of Constitution 1890 section 26.

4 STATUTES. Statute referring to prior law for fine to be imposed held unconstitutional (Laws 1922, chapter 210, section 2; Hemingway's Code, section 2086; Constitution 1890, section 61).

Laws 1922, chapter 210, section 2, making it mandatory on trial judge to impose ninety-days imprisonment on conviction for selling intoxicating liquor in violation of Laws 1912, chapter 214 (Hemingway's Code, section 2086), held in violation of Constitution 1890, section 61, in that it refers to prior statute for fine to be imposed.

5. Criminal law. Judgment imposing sentence on verdict will be reversed, and cause remanded for new sentence, where statute authorizing sentence is held void (Laws 1922, chapter 210, section 2).

Since Laws of 1922, chapter 210, section 2, making it mandatory that trial judge impose ninety-day imprisonment on conviction for sale of liquor, is void, judgment of lower court on conviction for sale of liquor will be reversed, in so far as it imposes sentence on the verdict and cause remanded for a new sentence.

ETHRIDGE and ANDERSON, JJ., dissenting.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS, Judge.

Mike Buford was convicted for selling intoxicating liquor, and he appeals. Reversed, and remanded for a new sentence, and otherwise affirmed.

Reversed and remanded.

Kimbrough, Tyson & Kimbrough, for appellant.

I. Consider first the question of admitting evidence of more than one sale of intoxicating liquor in the trial of a cause. See sections 26, 31 and 36, Constitution of 1890. Section 1762, Code of 1906 (section 2098, Hemingway's Code) is not good law. We find no case in which this court has directly sustained the constitutionality of the above section.

To state not only the gross injustice, but, as we see it, the utter flouting of section 26 of the Constitution, allowing the state to charge defendant with committing an offense, by charging that he unlawfully did sell intoxicating liquor and then without giving him warning, information or notice of any character, introducing one or several witnesses to testify to the commission of various offenses, occurring at different times, different places, under totally different circumstances, and to totally different persons, is to convict the statute as an outlaw.

In the case of murder the name of the person alleged to have been killed must be given; in the case of larceny, grand or petit, a description of the property, its value, and its ownership must be laid in the indictment; in burglary, or in burglary and larceny, the same is true; in bigamy, in rape, in false pretenses, in being drunk or profane swearing in a public place--in, we might say, all cases known to the law the nature of the cause of accusation must be set forth in the indictment.

By what process of reasoning can the legislature be given authority to charge a defendant with the commission of one offense and without notice or warning to him, offer proof of any number of entirely separate and distinct offenses? It cannot be done under the common law. We can find no warrant for it under our constitution. On the contrary, section 26 and 31 specifically protect defendant; and if they did not, sections 14 and 32 most assuredly do.

Suppose two witnesses testified: one that he bought intoxicating liquor from defendant in a certain quantity, at a certain time, at a certain place, and narrates the physical surroundings and the conversation that took place resulting in said purchase; the other that he bought a different quantity, for a different price, of a different kind, at a different place and under totally different circumstances. The evidence of both witnesses is allowed to go to the jury. They come in with a verdict of guilty as charged. Have the several minds of the jurors met on either offense? Suppose six jurors totally disbelieve the testimony of the first witness, but were convinced beyond a reasonable doubt of the truthfulness of the second; and suppose the other six jurors' minds were convinced of the exact contrary, that they believe all the testimony of the first witness, but totally disregarded that of the second. Has the defendant, in such cases, been given the benefit of the constitution and common justice? We submit that he has not.

Even when the state confines its proof to a single sale of intoxicating liquor, the defendant, under the rules as they now exist, may be wholly in the dark until he has entered upon the trial. He can prepare no defense, he does not know the person or his name, to whom he is charged with having made the sale. He does not know when it was made, who was present, what price is claimed to have been paid, how the price was paid, by whom, when, where, or in whose presence it was paid. He does not know what kind or character of intoxicating liquor he is charged with having sold, whether whiskey, wine, gin, ale or whatnot. What is his consternation and helplessness when two, three or a dozen witnesses, all perhaps unknown to him, are allowed to testify to the details of as many separate, independent, distinct and disconnected transactions? We do not believe the statute can stand the test. For light on this subject, see: King v. State, 66 Miss. 502, 6 So. 188; 1 Bish. Cr. Pro., paragraphs 1124-29; Gassheimer v. State, 52 Ala. 313; State v. Crimmins, 31 Kan. 376; Lebovitz v. State, 113 Ind. 26, and authorities there cited; Bailey v. State, 67 Miss. 333, 6 So. 188; Naul v. McComb City, 70 Miss. 699, 12 So. 903; Ware v. State, 71 Miss. 204, 13 So. 936; Kettrell v. State, 89 Miss. 666, 42 So. 609.

As to the proposition that the foregoing cases all arose before the operation of the statute under consideration, our answer is that if it was unlawful then to offer evidence of more than one sale, it was unlawful because it violated, especially, sections 14, 26 and 31 of the constitution.

Thomas v. Yazoo City, 95 Miss. 395, 48 So. 821, is the first case in which this court held, in a written opinion, that convictions based on evidence of several sales, even where the court declined to put the state to an election, would be sustained; and further held that, because of section 1762, supra, the rule announced in the foregoing cases was abrogated.

The question of the constitutionality of section 1762, Code of 1906, is not raised in the Thomas case although section 26 of the constitution is discussed. However, it is discussed in an entirely different light and from an entirely different angle. Therefore, the Thomas case is no authority for the constitutionality of said section of the code.

Whether this statute is a rule of evidence or "far more than a rule of evidence," we insist that it is violative of appellant's rights under section 14, 26, 31 and 32 of the constitution. He is deprived of due process of law. He is deprived of the nature and cause of the accusation against him. He is deprived of the right of trial by jury, of the opinion, or judgment, of twelve men on the one offense of which he is charged. He is deprived of an inherent right to have a fair charge and competent evidence against him. Orick v. State, 105 So. 467.

II. We have no valid law against the sale of intoxicating liquor. Historically, we know that until modern times it was never dreamed by the people that a time would come when there would be no property rights in intoxicating liquors. Until recently the right of property in such liquors was uniformly and universally recognized.

The first statute passed in the state, infringing upon, or qualifying, this unlimited and unrestrained right was section 1748, Code of 1906. At that time it was not "against the law" to own or possess liquors. But that statute related only to liquors kept or offered for sale in violation of law. The effect of the statute was to destroy the right of property in, to make contraband, liquor kept or offered for sale in violation of law. What constituted a ...