Frazier v. State

• Decision Date: 09 November 1925
• Docket Number: 25065
• Citation: 141 Miss. 18,106 So. 443
• Court: Mississippi Supreme Court
• Parties: FRAZIER v. STATE. [*]

106 So. 443

141 Miss. 18

FRAZIER v. STATE. ^[*]

No. 25065

Supreme Court of Mississippi

November 9, 1925

Division A

Suggestion Of Error Overruled January 4, 1926.

APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.

H. K Frazier, a justice of the peace, was convicted of misdemeanor in office by reason of his unlawful possession of intoxicating liquor, and he appeals. Affirmed.

Affirmed.

Engle & Laub, for appellant.

I. The demurrer to the indictment should have been sustained. A justice of peace can be in the possession of liquor that has been seized as evidence, or which has been introduced in evidence, or is to be introduced as evidence, in the event that the person from whom the liquor was taken is later apprehended. In such a case the indictment should negative the exceptions.

The cases decided by this court dealing with the possession of a still apply with equal force to the case of an officer indicted for the possession of liquor, such as a sheriff, or a justice of peace, who under certain circumstances can lawfully be in possession of liquor. State v. Speaks, 96 So. 176, and Dawsey v. State, 100 So. 526.

II. The instruction given for the state is faulty and was prejudicial to the appellant. The state asked for one instruction, and this instruction told the jury to convict the appellant upon proof merely that whiskey was found in the possession of appellant, although there was testimony clearly showing, at the time, if the jury believed it, that appellant did not know that this liquor was in his possession, and that the liquor had been placed there by an acting constable to be used as evidence.

The instruction presents a conflict with the instruction given for defendant. It placed before the jury a proposition of law in conflict with the propositions contained in the instruction given for appellant. This instruction told the jury that if the appellant had the liquor in his possession, they should convict.

It enabled any member of the jury to reduce the case to the simple proposition that under the instruction for the state the case was clear, and there must be a conviction. Jurors are not learned in the niceties of the law and the instructions for the state and for the defendant should be harmonious, otherwise the likelihood of the jury being misled is great. We refer the court to the case of Murdin v. State, 82 Miss. 507, 33 So. 944.

III. The court should have given the instruction asked for by appellant. This is the only instruction that without qualification instructed the jury to acquit the defendant if the whiskey was placed in the kitchen of appellant by the witness Campbell.

If this whiskey was placed there by the witness Campbell, the appellant should have been acquitted. On the facts in this case, as testified to by Campbell, and as not disputed by any evidence, this whiskey was captured by him and placed in the kitchen of appellant. Campbell was an acting constable and appellant was a justice of the peace. Unless this instruction is the law, then any justice of the peace whose constable places whiskey on his premises is liable to conviction.

J. L. Byrd, Assistant Attorney-General, for the state.

I. A demurrer to the indictment was filed, which the appellant claims should have been sustained, because it did not negative the fact as to the possession of the intoxicating liquor by the appellant for lawful purposes. In the first place the indictment states that the appellant unlawfully had the liquor in his possession, and in the second place the statute on the possession of intoxicating liquor provides by its terms that in any indictment, or prosecution for any violations of this act, it shall not be necessary to negative the exceptions herein contained, or that the liquors, bitters and drinks were ordered shipped, transported or delivered for any of the purposes set out in the succeeding sections hereof. Chapter 189, Laws of 1918.

II. The instruction granted at the request of the state was proper in every respect, because it set out all of the necessary elements of the crime, and it did not ignore the right of the appellant to have the whiskey for lawful purposes, but on the other hand instructed the jury that if they believed that the defendant wilfully and unlawfully possessed the intoxicating liquor, as charged in the indictment, etc., then they should find the defendant guilty. We say that this was the state's whole case, and this was the theory on which it was tried by both the state and the defendant. There was no error in that instruction.

There was no conflict between that instruction and instructions granted to the defendant, because the defendant's instructions all told the jury that the justice of the peace had a right to have the liquor in his possession, if it was there for the purpose of having it destroyed according to law and the jury could not convict unless it was held for some other purpose than being destroyed according to law.

OPINION

COOK, J.

The appellant, a justice of the peace of district No. 3 of Adams county, was indicted and convicted of a misdemeanor in office in that he "willfully and unlawfully had in his possession more than one quart of intoxicating liquors;" and from a judgment removing him from office and sentencing him to pay a fine of three hundred dollars and serve sixty days in jail, this appeal was prosecuted.

The substance of the testimony for the state was that, pursuant to the command of a search warrant previously issued, the...