Gann v. State, 45703

• Court: Mississippi Supreme Court
• Writing for the Court: SMITH; ETHRIDGE
• Citation: Gann v. State, 234 So.2d 627 (Miss. 1970)
• Decision Date: 23 February 1970
• Docket Number: No. 45703,45703
• Parties: Melvin GANN v. STATE of Mississippi.

Page 627

234 So.2d 627

Melvin GANN v. STATE of Mississippi.

No. 45703.

Supreme Court of Mississippi.

Feb. 23, 1970.

Rehearing Denied May 18, 1970.

John P. Fox, Clyde Ratcliff, Houston, for appellant.

A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., and Samuel H. Wilkins, Special Asst. Atty. Gen., Jackson, for appellee.

SMITH, Justice.

Melvin Gann was convicted in the Circuit Court of Chickasaw County of the illegal possession of beer. For that offense, he was sentenced to pay a fine of $500 and to serve a term of 60 days in jail, with 60 days suspended during good behavior. He appeals from that conviction and sentence.

On September 24, 1957, an election had been duly called and held under the provisions of Mississippi Code 1942 Annotated section 10208 (1952) in which a majority of the qualified electors of Chickasaw County, voting in the election, had voted against the proposition that light wines and beer be legalized.

On August 31, 1968, for the purpose of obtaining a warrant to search Gann's house for intoxicating liquor, an enforcement agent of the Alcoholic Beverage Control Division for the State Tax Commission made an affidavit before a magistrate stating, among other things, that he 'had reason to believe and did believe' that Gann had in his possession in his house 'intoxicating liquor in violation of Chapter 3, Title 11, recompiled Volume 2-A, Mississippi Code of 1942 and/or H. B. 112, 1966 Regular Session of Legislature.' The factual basis for this belief set forth in the affidavit was of sufficient substance to support the magistrate's finding that probable cause did exist and justified the issuance of a search warrant.

Acting under authority of the warrant, the enforcement agents entered Gann's dwelling, where he was at the time, but found no whiskey or other alcoholic beverages of that character generally classified as 'hard liquor.' In the course of the search, however, they did find 102 16-oz. cans of beer, of assorted brands, in two refrigerators. The enforcement agents seized the beer as contraband and arrested Gann upon a charge of illegally possessing it.

He was convicted in justice of the peace court and, on appeal, upon trial de novo in the circuit court, he was again convicted.

Of the grounds assigned as error, requiring reversal, the following should be noticed:

(1) Enforcement officers of the Alcoholic Board of Control may not execute a search warrant for beer, their search was illegal (as only beer was found), and, therefore, their evidence against Gann was improperly admitted.

(2) No proof having been made that the alcoholic content of the beer found exceeded 4 per cent by weight, the State failed to show that its possession was illegal.

The first of these propositions is without merit for several reasons. The affidavit and warrant show that the objective of the agents in making the search was unlawfully possessed 'intoxicating liquor.' The discovery and suppression of violations of the law with respect to intoxicating liquor are within the legitimate scope of the duties imposed upon the enforcement agents of the Alcoholic Beverage Control. In the course of their lawful search for intoxicating liquor, the beer was discovered. Since the agents were lawfully on the premises and beer was contraband in Chickasaw County, it was lawful for the officers to seize the beer, under the circumstances, and their testimony with respect to it was properly admitted. Williams v. State, 216 Miss. 158, 61 So.2d 793 (1953).

In Walton v. State, 219 Miss. 72, 68 So.2d 87 (1953) it was held that the mere possession of beer for personal use was not unlawful, even in a county where an election had been held and beer outlawed under Mississippi Code 1942 Annotated section 10208 (1952). However, in Walton, the Court said:

Beer is an alcoholic beverage and of this fact we may take judicial notice. Fuller v. City of Jackson, 97 Miss. 237, 248, 52 So. 873, 30 L.R.A.,N.S., 1078. The statute makes the distribution of beer a misdemeanor regardless of the amount of its alcoholic content in those counties where it has been outlawed. (id. 219 Miss. at 76, 68 So.2d at 88).

Since 1953, when Walton was decided, the legislature has amended Mississippi Code 1942 Annotated section 10208 (Supp.1968) in several respects, including the...