Holley v. State

• Decision Date: 31 January 1927
• Docket Number: 26110
• Citation: 144 Miss. 726,111 So. 139
• Court: Mississippi Supreme Court
• Parties: HOLLEY v. STATE. [*]

111 So. 139

144 Miss. 726

HOLLEY v. STATE. ^[*]

No. 26110

Supreme Court of Mississippi

January 31, 1927

Division B

1. CRIMINAL LAW. Judge determines facts in reference to admissibility of evidence whose competency depends on preliminary proof; if evidence and facts conflict, judgment will not be disturbed where facts found by trial judge sustain admissibility of evidence; in prosecution fort possessing intoxicating liquors, evidence that search warrant was timely served held to render evidence secured admissible.

When the admissibility of evidence depending upon preliminary proof for its competency is offered, the judge determines the facts in reference thereto, and if the evidence and facts are conflicting, the judgment will not be disturbed where the facts found by him sustain the admissibility of the evidence.

2. INTOXICATING LIQUORS. In prosecution for possessing liquor not described as wine, defendant must show that it comes within statute excepting homemade wine; all intoxicating liquor becoming such by its own fermentation is not excepted from Prohibition Law as wine.

In a prosecution for unlawful possession of intoxicating liquor if the liquor is not described as "wine" within the meaning of the statute excepting homemade wine from the criminal purview of the statute, it devolves upon the defendant to show that it comes within such exception. All intoxicating liquor that becomes such by its own fermentation is not excepted as wine.

3. INTOXICATING LIQUORS. Possession of liquor, not exclusive but with right of control, is illegal.

In a prosecution for the unlawful possession of intoxicating liquor, it is not necessary to prove exclusive possession but if defendant was in possession with the right of control at the time, this is sufficient.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Itawamba county, HON. C. P. LONG, Judge.

Ben Holley was convicted of the possession of intoxicating liquor, and he appeals. Affirmed.

Judgment affirmed.

J. H. Brown, for the appellant.

Defendant, appellant, attempted to show that the search warrant was executed after the return day and was void. The evidence on this point was sharply contested. The court ruled that this was a question of fact to be determined by the court and should not go to the jury, to which ruling the defendant excepted.

I. The court erred in not permitting this question of fact to be passed on by the jury. If this search warrant was served after the return day, it was void. See Taylor v. State, 102 So. 267. And if the search warrant was void, then the evidence was not admissible. Tucker v. State, 128 Miss. 211; Owens v. State, 133, Miss. 753.

The question to be solved by this court is whether this is a question of fact for the jury or for the court to pass upon in determining the admissibility of the evidence. I have carefully searched for authority on this point and I fail to find where this case has been passed upon by the court.

This case differs from McNutt v. State, 108 So. 721, because in that case the main question discussed was the question of probable cause and the court has correctly said that this was the question to be determined by the court and must be solved before a search warrant can be issued. I submit that the court erred in its ruling concerning the above question.

II. Now if the court should find that the lower court was correct in its holding, then I maintain that the evidence offered by the state does not warrant the court's finding.

III. The court erred in giving an instruction for the state which instruction disregards the right of an individual to use his fruits in making any kind of wine, beer or anything that it might be called, where the same is made by its own natural fermentation. See Step v. State, 95 So. 838.

If this instruction is correct, then the case of Step v. State, must be overruled.

J. A. Lauderdale, Assistant Attorney-General, for the state.

I. The defendant objected to the testimony secured by the search warrant on the ground that it was not executed until its return date had expired. He insisted that the proof with reference to the time the warrant was executed be made before the jury and that the jury pass upon the question as to whether or not the search warrant was actually executed on the eleventh or twelfth day of December. The trial court held that it was a question of the admissibility and competency of the testimony to be decided by the court on proof taken by the parties.

The court found as a matter of fact that the search warrant was executed on December 11, its return date, and that the testimony secured by the search under it was competent and admissible. See McNutt v. State, 108 So. 721, where if the court found the sheriff had probable cause for believing McNutt had intoxicating liquor in his car, then the search without a warrant was legal and the testimony secured thereby competent and admissible.

In the case at bar if the search warrant was actually executed on December-11, 1925, then the testimony was competent and admissible. If as a matter of fact it was not executed until December 12, 1925, then the testimony was incompetent and inadmissible. The inadmissibility and competency of testimony is always a question of law to be judicially determined by the court. The weight and credibility of testimony is a question of fact to be determined by the jury.

II. Counsel for appellant contends that even though the admissibility of this testimony was a question for the court, on the testimony before him he committed error in finding that the search warrant was executed on December 11. The judge as a trier of fact certainly has a right to take into consideration his knowledge of the witness.

III. The defendant contends that the granting of instruction for the state was error and cites Step v. State, 95 So. 838; but see section 11, chapter 189, Laws of 1918, and paragraph 4, section 12 of said act.

This instruction was correct for two reasons; (1) The officers testified that the liquor was "home brew" or "beer" and that it was intoxicating. If it was beer or home brew, it was not wine. In the Step case the testimony showed that the liquor found in Step's home was home-made wine and raisins and grapes in the process of fermentation. Wine is the fermented juice of grapes. Caswell v. State, 21 Tenn. 402; Hilton v. State, 31 So. 563 (Ala.); Smith v. State, 19 Conn. 493; Schwab v. People, 4 Hun 520. See also Words and Phrases Judicially Defined, Series Old and New.

(2) Because the statute, as hereinbefore quoted, places upon the defendant the burden of proof to show that the liquor in his possession came within one of the exceptions provided in said section.

OPINION

ETHRIDGE, J.

Appellant was convicted of having intoxicating liquors in his possession and sentenced therefor, and appeals from said judgment to this court.

The evidence was obtained by means of a search warrant. When the evidence was offered, it was objected to on the ground that the warrant was void because it was served after the expiration...