Gillespie v. State

• Decision Date: 28 March 1910
• Citation: 96 Miss. 856,51 So. 811
• Court: Mississippi Supreme Court
• Parties: WILHELMINA GILLESPIE v. STATE OF MISSISSIPPI

51 So. 811

96 Miss. 856

WILHELMINA GILLESPIE v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 28, 1910

March 1910

FROM the circuit court of, first district, Hinds county, HON WILEY H. POTTER, Judge.

Madame Gillespie, appellant, was indicted, and tried for and convicted of unlawfully selling intoxicating liquors and appealed to the supreme court.The facts are sufficiently stated in the opinion of the court.

Affirmed.Suggestion of error is overruled.

Robert P. Thompson, for appellant.

Appellant was indicted for unlawfully selling intoxicating liquors; she was convicted upon testimony showing nothing more than that she was found in possession of appliances adapted to the dram-shop business.The Statute Laws 1908, ch. 115, p. 116 sec. 1747, makes the facts proved presumptive evidence "that the person owning or controlling such * * * appliances, * * * is engaged in keeping for sale * * * or in selling * * * intoxicating liquors contrary to law."

The presumption is not that she was keeping the liquors for sale and selling them, but that she was doing one or the other of the two things, both of which are misdemeanors.The word "or" is said to be the most equivocal word in the English language and its use is discountenanced, if not prohibited, in criminal pleadings.

If the presumption be that the good woman was engaged in keeping intoxicating liquors for sale, she could not be convicted under the indictment on which she was tried.What was the presumption?This court cannot say, nor could the trial court rightfully have said, because the law has not specified as between the two separate and distinct things, both of which are crimes.

"Or" never means "and," but each is often mistakenly used for the other.Warren County v. Boothe,81 Miss. 267.Criminal statutes are to be strictly construed and there is no warrant for claiming that the word "or" was mistakenly used for "and" in the statute under consideration.The legislature did not intend to relieve the state from showing, in cases like this, something more than the possession of the appliances; something more had to be shown in order to exclude one of the presumptions and make the other applicable.Unless the state showed something more the statute could not be invoked, and the case stood just as if the statute had never been passed.

A presumption that defendant was guilty of the crime charged or of some other crime can never prove guilt of the crime charged beyond all reasonable doubt.Such a presumption is too uncertain to uphold a conviction for crime.This court cannot from this record adjudge that the presumption was that Madame Gillespie sold intoxicating liquors, since the statute just as effectually makes the presumption that she kept such liquors for sale.It does not create a presumption that she did both.

Presumptions cannot prove crime any more effectually than admitted facts.If it had been admitted on the trial that the woman had kept intoxicating liquors for sale or had sold such liquor, she could not have been convicted in the absence of evidence showing which of the two crimes had been committed by her.While all good men abhor both crimes, and all crimes, we should not lose sight of fundamental principles.

George Butler, assistant attorney-general, for appellee.

The word "or" in the statute means "and," otherwise the whole legislative intent miscarried.It will be noted that the instruction required as a condition to a conviction the jury to believe from the evidence beyond doubt that appellant had sold the intoxicants.Responding to the instruction the jury convicted.This court cannot, in the face of the statute, vacate the verdict.4 Wigmore's Evidence, p. 3534, sec. 2491.

OPINION

MAYES, J.

Under section 1747, c. 115, p. 117, of the Acts of 1908, the verdict of the jury was fully warranted by the proven facts.This section provides, among other things, that the fact that any person has in his possession appliances adapted to retailing liquors shall be presumptive evidence that the person owning or controlling the appliances is engaged in selling or bartering...