Ellard v. State
| Decision Date | 16 December 1963 |
| Docket Number | No. 42802,42802 |
| Citation | 248 Miss. 313,158 So.2d 690 |
| Parties | Angie ELLARD v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
John Gregg, Jackson, for appellant.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
This is an appeal by Mrs. Angie Ellard from a judgment of the Circuit Court of Holmes County under which she was found guilty and sentenced for unlawfully giving or furnishing beer to a seventeen year old boy.
The indictment charged, in the disjunctive, the unlawful and willful sale, gift or furnish of a quantity of beer to the named person, under eighteen years of age. But the defendant made no attack thereon because of the disjunctive charge.
The evidence for the State was to the effect that Mike Kinnebrew and Charles Pritchard went into the cafe and store of the defendant around 9:30 o'clock on Friday evening, November 16, 1962; that they stepped up the counter and ordered two quarts of Budweiser beer; that Kinnebrew, after handing the money to Pritchard for the purchase, walked away; that Pritchard gave the money to Sue Rigsby, a clerk, and she, in turn, handed it to the defendant who was sitting nearby at the cash register: that the defendant made the change and gave it to Sue Rigsby, who, in turn, handed it over to Pritchard; and that Pritchard, seventeen years of age, and Kinnebrew, then left the the building. Two men, working under cover for the sheriff, and young Pritchard, testified to the foregoing facts.
The testimony of the defendant was a categorie denial of the State's version, saying that no such act occurred. Her husband testified that it was impossible for the two State witnesses, sitting where they said they were, to see this alleged transaction. The evidence of an employee was of little corroborative value.
In the State's only given instruction, the jury was told that 'if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Mrs. Angie Ellard, on November 16, 1962, unlawfully and wilfully did then and there sell, give or furnish a quantity of beer to one Charles Pritchard, a person under the age of eighteen years, then it is your sworn duty to find the defendant guilty, and the form of your verdict may be:
'We, the jury, find the defendant guilty as charged in the indictment.'
Th defendant was given eight instructions. One of these informed the jury that, unless it believed that the State had proved beyond a reasonable doubt that the defendant willfully and knowingly sold beer to a minor, then it should acquit her. Another instruction informed the jury that unless it believed, from the evidence beyond a reasonable doubt, that the defendant sold beer to Charles Pritchard, acting in his own behalf, and not as an agent for Mike Kinebrew, it should return a verdict of not guilty.
Following the submission of the case, the return of the jury was as follows: 'The Jury agrees that the defendant did give or furnish Charles Pritchard (a minor) beer.
'The Jury cannot agree that the State proved that the defendant sold said Charles Pritchard (a minor) beer.'
The bill of exceptions, obtained at the instance of the defendant, shows that, following the above return, a juror, as spokesman for the panel, 'advised the Court that they were unable to agree on anything except the foregoing,' which referred to the jury's return.
This bill of exceptions also shows that 'The Court then asked each juror in substance if the statement of Gaddis Young was a correct statement of the jury's position, and each juror answered in the affirmative.'
The appellant has assigned and argued three alleged errors. Simply stated, those assignments charged that the return, which was made by the jury, did not find her guilty and was in fact an acquittal. Consequently the court should have discharged and not sentenced her. But at all events, the court was in error in overruling her motion for a new trial.
Section 10223, subd. 1. (b), Code of 1942, Rec. makes it unlawful for the holder of a permit authorizing the sale of beer '[t]o sell, give, or furnish any beer * * * to any person under the age of eighteen years.' In other words, the statute makes the commission of each of these distinct acts a violation of the law. If all three acts are charged conjunctively, the jury may, for instance, find guilt on only one of the elements. In Lenoir v. State, 237 Miss. 620, 115 So.2d 731, the Court said:
Consequently, where the indictment is based on Sec. 10223, subd. 1. (b), supra, if it charges the unlawful sale, gift, and furnish of beer, the jury is authorized, if the evidence so warrants, to find guilt of the defendant as to the gift or furnish of beer.
The next question of concern is whether the language usd by the jury constituted a verdict, and if so, the effect of such...
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...Henderson v. State, 342 So.2d 744 (Miss.1977); and Jackson v. State, 337 So.2d 1242 (Miss.1976). Furthermore, in Ellard v. State, 248 Miss. 313, 158 So.2d 690 (1963), we stated and " 'The general rule as found in the texts is, that ordinarily the verdict is sufficient in form if it expresse......
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