Forbert v. State, 32616

• Court: Mississippi Supreme Court
• Writing for the Court: Cook, J.
• Citation: 174 So. 248,179 Miss. 66
• Decision Date: 17 May 1937
• Docket Number: 32616
• Parties: FORBERT v. STATE

174 So. 248

179 Miss. 66

FORBERT
v.
STATE

No. 32616

Supreme Court of Mississippi

May 17, 1937

Division A

1. CRIMINAL LAW.

In prosecution for unlawfully possessing wine, questions involving admissibility of testimony, regarding circumstances under [179 Miss. 67] 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.).

HON. W. J. PACK, Judge.

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 [179 Miss. 68] 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 [179 Miss. 69] 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...