Forbert v. State
| Citation | 174 So. 248,179 Miss. 66 |
| Decision Date | 17 May 1937 |
| Docket Number | 32616 |
| Court | United States State Supreme Court of Mississippi |
| Parties | FORBERT v. STATE |
1. CRIMINAL LAW.
In prosecution for unlawfully possessing wine, questions involving admissibility of testimony, regarding circumstances under which wine was obtained and use made thereof before grand jury by circuit judge, were not presented for review in absence of motion to quash indictment or plea in abatement based on undue influence before grand jury.
2. SEARCHES AND SEIZURES.
Where circuit judge directed deputy sheriff to obtain wine and deputy went to defendant's place of business and informed defendant that he desired to purchase wine for circuit judge and defendant told deputy that if judge wanted it to take it without paying for it, manner in which wine was secured did not violate unreasonable search or seizure provision of Constitution (Const. 1890, section 23).
3. INTOXICATING LIQUORS.
In charging offense of unlawful possession of wine, it is not necessary to negative exception of homemade wine, and state is not required to prove that wine was not homemade wine used for domestic and household purposes only (Laws 1934, chapter 171; Code 1930, section 1973 et seq.).
4. INTOXICATING LIQUORS.
In prosecution for unlawful possession of wine, omission of word "unlawful" in instruction to jury held not prejudicial to defendant where bottle containing wine tended to show that it was not homemade and there was no evidence suggesting that it was homemade wine, since possession of wine containing more than 15 per cent. of alcohol by weight was necessarily unlawful (Laws 1934, chapter 171; Code 1930 section 1973 et seq.).
APPEAL from the circuit court of Forrest county HON. W. J. PACK, Judge.
Max Forbert was convicted of unlawfully possessing wine of alcoholic content greater than four per cent. by weight, and he appeals. Affirmed.
Affirmed.
Earl L. Wingo, of Hattiesburg, for appellant.
The indictment charged the appellant with the crime of wilfully and unlawfully having in his possession wine of an alcoholic content greater than four per centum by weight; but the instruction to the jury merely stated that if they believed from the evidence in the case beyond a reasonable doubt that the defendant, Forbert, had in his possession wine of an alcoholic content of more than four per centum by weight, then you will find the defendant guilty as charged.
In other words, the jury was not instructed on behalf of the state or by any instruction whatever that the burden was upon the State to prove not merely that the appellant had in his possession wine of an alcoholic content of more than four per centum by weight, but that such possession, if at all, must have been wilful and unlawful.
Stepp v. State, 95 Miss. 838, 132 Miss. 132.
A study of the history of our state prohibition laws enacted in the past thirty years reveals the fact that the manufacture and possession of home-made wine for domestic or household purposes has never been, and is not now, prohibited by law.
Section 1622, Code of 1892; Chapter 100, Laws of 1896; Section 1791, Code of 1906; Chapter 113, Laws of 1908; Section 2113, Hemingway's Code; Chapter 103, subd. 5, Laws of 1916, being Section 2155, Hemingway's Code; Chapter 189, sec. 12, subd. 4, Laws of 1918.
There being no law prohibiting the possession of home-made wine for domestic purposes, even though this home-made wine is intoxicating, the appellant should not have been found guilty in this case, unless the jury believed that the intoxicating quality of the wine was due to the addition of alcohol, and not due to the natural fermentation of the wine. But the lower court committed the error of refusing the appellant an instruction submitting this question to the jury; the court going upon the theory that, if the wine found in the possession of appellant was intoxicating, then he was guilty as charged under the law.
In the case at bar there was no proof offered by the state to show anything other than that the wine in question contained an alcoholic content greater than four per centum by weight.
Certainly the appellant was entitled to a peremptory instruction of not guilty. This is true because the manner in which the two bottles of wine were offered in evidence over the objection of appellant was illegal and their introduction incompetent and all testimony in regard thereto wholly inadmissible.
Section 23 of the Constitution; Polk v. State, 142 So. 480; Orick v. State, 105 So. 465; Iupe v. State, 105 So. 520; Butler v. State, 101 So. 193.
Our court has constantly held that section 23 of the Constitution protects the citizen from unreasonable searches and unreasonable seizures, and certainly this man's constitutional rights were violated and trampled upon during every step and stage of the trial of the case at bar, and even before an indictment was rendered against him.
Certainly it could not have been argued that the appellant was denied substantial rights when it is admitted in the record that the circuit judge held the two bottles of wine before the eyes and persons of the grand jury and urged an indictment. In support of this proposition, while there was no motion qualifying an indictment, we think the following is applicable:
State v. Owen, 126 So. 25; Welch v. State, 8 So. 673; Wilson v. State, 138 So. 225; State v. Barnett, 541 So. 313.
Our Supreme Court has constantly held that the law prohibits outsiders from taking any part in the deliberations of the grand jury, and that the investigations of the grand jury should be confined strictly to the testimony of witnesses having knowledge of facts touching matters under inquiry.
Furthermore, there has long been a law that no indictment is legal where its procurement was brought about through the exercise of undue outside influence.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
It is not prejudicial error to omit the word "unlawfully" in an instruction in a prosecution for the unlawful possession of intoxicating liquors, since all possession of such liquor is unlawful, except in the hands of an officer.
Bufkin v. State, 134 Miss. 1, 98 So. 452; Falkner v. State, 134 Miss. 101, 98 So. 345.
Possession of home-made wine, becoming such through own fermentation and for household purposes is not unlawful under our criminal statutes. This statute was construed in Stepp v. State, 132 Miss. 132, 95 So. 838. But in charging the unlawful possession of wine, or other intoxicating liquor, it seems that the state is not required to negative the exception.
Frazier v. State, 106 So. 443.
If the state is not required to negative the exception in the indictment, its proof is required to rise no higher and it is not incumbent upon the state to prove that the wine was not such as is exempted by statute.
There is nothing in the record anywhere to suggest an issue for the jury as to whether this wine was home-made, etc., or otherwise manufactured. Since there was no issue by the evidence, it would be improper to raise it by instructions. This is not permissible.
Hanna v. State, 168 Miss. 352, 151 So. 370; Singleton v. State, 71 Miss. 782, 16 So. 295; Boyd v. State, 84 Miss. 414, 36 So. 525.
If the wine here was "home-made" wine, it was an affirmative defense. It is no part of the State's case to show that it was not such.
Holley v. State, 144 Miss. 726, 111 So. 139; Miller v. State, 105 Miss. 777, 63 So. 269.
Nothing appearing of record to show that this motion was ever called to the attention of the court, and no order of the court thereon, there is nothing for this court to review.
Boatwright v. State, 143 Miss. 676, 109 So. 710; Sherrod v. State, 90 Miss. 856, 44 So. 813; Clinton v. State, 163 Miss. 435, 142 So. 17.
Was appellant entitled to a directed verdict? This argument all goes back to the remarks of the trial judge in charging the grand jury about the possession of wine of greater alcoholic content than allowed by law. It is said that his remarks constituted an outside influence which brought about this particular indictment and hence the indictment was void. In this argument, we believe appellant has possibly misconstrued his rights, if he ever had any in this respect. The matter referred to is such as to constitute a defect in the indictment which was de hors the record and this can only be reached by motion to quash.
Gates v. State, 71 Miss. 874, 16 So. 342; State v. Coulter, 108 Miss. 764, 61 So. 706; Chandler v. State, 143 Miss. 312, 108 So. 723; State v. Mitchell, 95 Miss. 130, 48 So. 963; Section 1207, Code of 1930.
Even a studied entrapment is no defense.
Appellant was indicted and convicted in the circuit court of Forrest county on a charge of...
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