Fullwood v. The State

• Decision Date: 21 April 1890
• Citation: 7 So. 432,67 Miss. 554
• Court: Mississippi Supreme Court
• Parties: WILLIAM FULLWOOD v. THE STATE

7 So. 432

67 Miss. 554

WILLIAM FULLWOOD v. THE STATE

Supreme Court of Mississippi

April 21, 1890

April 1890

FROM the circuit court of Yazoo county, Hon. J. B. CHRISMAN Judge.

Appellant Fullwood, owned and ran the bar on the steamer Katie Robins which navigated the Yazoo river, and was indicted for selling liquor in Yazoo county in violation of the local option law which had been put into operation by an election held in that county. One Wade, as a witness for the state, but whose name was not on the indictment, testified that he bought a drink of whisky at the bar of said boat while at a landing in said county. Fullwood did not sell it, and was not present. The name of the person who sold the liquor was not shown; but it was sold by a person in charge as bar-tender, and it was shown that Fullwood had bar-tenders on this and other boats running on said river. When arrested on this charge he stated that he did not know that his bar-tenders had been selling liquor in Yazoo county, but that if they had he would stand by them and was responsible for it. The precise date of the sale was not shown. Defendant offered no evidence to explain or contradict this testimony on behalf of the state.

The state also introduced the order of the board of supervisors directing the local option election and appointing three commissioners to hold it, in pursuance of the statute. The certificate and affidavit accompanying the returns of said election were made by only two of the commissioners, the record being silent as to the other commissioner after the appointment. Defendant objected to the introduction of this record in evidence.

At the instance of the state, the court gave the following instruction:--

"If the jury believe from the evidence, beyond all reasonable doubt, that William Fullwood, at any time between the 22d day of August, 1886, and the finding of this indictment, was the owner of the bar where liquor was sold on the Katie Robins, and that during the time of his ownership Mr. Wade purchased whisky from the bar of the steamer, then William Fullwood is guilty as charged, and the jury will so find."

Defendant was convicted, and was sentenced to pay a fine of $ 50 and to be imprisoned sixty days. After motion for a new trial overruled, he prosecuted this appeal.

Judgment affirmed.

R. Bowman and D. R. Barnett, for appellant.

1. The election return was made by only two commissioners, and so of the affidavit required by the statute. The statute is explicit in requiring "their" affidavit, meaning the affidavit of all three. This cannot be construed to mean a majority merely. The duties of the commissioners are ministerial, and the statute contemplates the individual action of each. We submit that the evidence is not sufficient to show the adoption of the local option law.

2. Under the instruction of the court, the jury was not permitted to pass upon the question whether the person selling the liquor, was the servant of defendant? It is immaterial how the jury might have decided this question; the court had no right to invade its province. To say the jury would have inferred that the person selling was the servant of defendant, is to assume that if this was not so, defendant could have shown it. Selling liquor from defendant's bar may be a stronger circumstance against defendant than the possession of goods recently stolen; but it is only a question of degree, and the jury must be the arbiters. Would the jury have acted improperly in rejecting a presumption that might ordinarily be indulged? Did the court have the power to determine the question of fact that the person selling was defendant's agent?

Ordinarily it is said that the proof of the precise time fixed in an indictment is not necessary; but we submit that the doctrine is not applicable to a case of this character, where the defendant is prosecuted for the act of another. Either the time must be proved as laid or the identity of the other person must be fixed. This case is distinguishable from Whitton v....