Hall v. State ex rel. Waller, 42813

• Decision Date: 25 November 1963
• Docket Number: No. 42813,42813
• Citation: 247 Miss. 896,157 So.2d 781
• Parties: John HALL v. STATE of Mississippi ex rel. Bill WALLER, District Attorney.
• Court: Mississippi Supreme Court

Page 781

157 So.2d 781

247 Miss. 896

John HALL v. STATE of Mississippi ex rel. Bill WALLER, District Attorney.

No. 42813

Supreme Court of Mississippi.

Nov. 25, 1963.

W. E. Gore, Jr., Jackson, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

BRADY, Justice.

This is an appeal from a final judgment of the Circuit Court of the First Judicial District of Hinds County, Mississippi, which ordered the destruction of 658 cases of intoxicating liquor seized by the municipal authorities of the City of Jackson under a search warrant and in custody of the sheriff of said county. Proceedings in this case were begun under Sec. 2618, Miss.Code of 1942, by the district attorney against the whiskey and L. N. and Kenneth Muse, d/b/a Muse Brothers, Rankin County, Mississippi, the consignees in the invoices which were found in the glove compartment of the truck containing the whiskey when it was stopped by the City Police in the City of Jackson while traveling east on U. S. Highway 80 in the direction of Rankin County, near Valley Street. The Muse Brothers, by their attorneys, filed an answer to the petition of the district attorney and disclaimed any interest whatsoever in the whiskey. One John Hall, an alleged resident of Tuscaloosa, Alabama, filed an affidavit claiming the whiskey belonged to him, that he purchased it from Muse Brothers at Delta Point, Louisiana, and that it was an interstate shipment to his place of business in Tuscaloosa, Alabama. The Circuit Court of Hinds County denied the claim of appellant John Hall to the 658 cases of intoxicating liquor, and adjudicated that said liquors were not being shipped in interstate commerce but were consigned to and were the property of L. N. and Kenneth Muse, residents of Rankin County, Mississippi, and further ordered that said quantity of liquor be condemned and destroyed according to law.

An appeal with supersedeas was granted by the lower court, with said liquors being stored in Hinds County, Mississippi, awaiting the decision of this Court.

There are three assignments of error urged by the appellant in his suggestion that the decision and judgment of the court below was manifestly wrong. These assignments of error are: (1) The court erred in entering judgment against appellant; (2) the judgment is against the overwhelming weight of the evidence; and (3) the court erred in sustaining the objection of appellee to the introduction by appellant of certain invoices shown on pages 40 through 44 of the record. These unsigned, typewritten invoices, which Kenneth Muse testified he notified one of his employees to prepare, purported to show that this whiskey was sold by the Muses to appellant. The invoices were dated the same day and were offered to the testimony of Kenneth Muse. This date was December 13th, the date upon which the liquor was seized, and showed that it was sold to John Hall of Tuscaloosa, Alabama, and that the terms of the sale was for sale and delivery at Delta, Louisiana. These invoices, which the lower court permitted to be introduced for identification only, merely showed the quantity, type or brand, and the cost of the various brands of intoxicating liquors. The heading of the invoices shows 'Muse Brothers, Old Brandon Road, Jackson, Miss.' as the consignor or vendor and that it is to be shipped to John Hall at Tuscaloosa, Alabama, no other address indicated. It is to be noted that these invoices wholly fail to show the serial numbers on the cases of liquor or on the federal stamps placed thereon. Appellant argues that the principal questions involved, as shown in his assignment of errors, is that the judgment is against the overwhelming weight of the evidence and that the court erred in refusing to admit into evidence the aforementioned invoices offered by appellant through the testimony of the witness Muse.

Our opinion, however, is directed not only to these two grounds, but also to the claim of the appellant that the whiskey was an interstate commerce shipment and was beyond the reach of the search and seizure, and the impounding by the Circuit Court of Hinds County. No objection is made by appellant to the search warrant issued for the search and seizure by appellee, but it is the order to destroy the intoxicating liquors by the Circuit Court to which appellant takes exception. It is to be noted that by agreement of the state and the appellee, Hon. Leon F. Hendrick, Circuit Judge, was to try and did try this cause without a jury, the said judge acting in lieu of the jury.

The record discloses that the appellee, Kenneth Muse, procured on William Tommy Hinton for the said John Hall as a truck driver; that the said Hinton, at the request of John Hall, leased a 1960 International truck of sufficient size to haul the almost $27,000 liquor purchase, from the Ryder Truck Rental of Jackson, Mississippi, on December 10. Hinton testified that John Hall was to pay him $100 to drive the truck when loaded with the whiskey from Delta Point, Louisiana to Tuscaloosa, Alabama. The record further discloses that William T. Hinton is a brother to a brother-in-law of Kenneth Muse, and was out of work at the time Muse recommended him to John Hall as a driver. The record also discloses that one Dewey Clinton, a trusted employee of Muse, drove this truck to Tallulah, Louisiana, where, from various wholesale dealers, he purchased the intoxicating liquor in question. Disclaimer Kenneth Muse alleged that he was paid in cash by John Hall and that he in turn purchased from the Louisiana dealers this quantity of liquor by check. The export sale reports, which are exhibits in the record, required by the Department of Revenue of the State of Louisiana, show that the intoxicating liquors were sold to L. N. and Kenneth Muse, the address being 'either 5 1/2 miles Old Brandon Road, Jackson, Mississippi, or 3526 Old Brandon Road, Jackson, Mississippi.' The record discloses that these addresses are one and the same. These export sale reports and invoices which were likewise issued were all signed by disclaimer's employee, Dewey Clinton.

On these export sale reports the 1960 International truck was listed, and that it was owned by Ryder Rental; that the driver was Dewey Clinton; it shows the route to be taken as 80 East; and the driver's license number is shown to be 82383. On the invoices, the brand of the liquor, the size in which the brand is bottled, and the price thereof, are all listed, and receipt therefor is signed by the said Clinton. Furthermore, the serial numbers under each of the various purchases are listed, the serial numbers being on the cases or on the stamps placed thereon. These invoices disclose that Clinton purchased for the said L. N. and K. Muse--Muse Brothers--from four different wholesale liquor dealers in...