Irby v. State

• Decision Date: 04 November 1907
• Citation: 91 Miss. 542,44 So. 801
• Court: Mississippi Supreme Court
• Parties: JACOB IRBY v. STATE OF MISSISSIPPI

44 So. 801

91 Miss. 542

JACOB IRBY v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 4, 1907

October 1907

FROM the circuit court of, first district, Panola county, HON JAMES B. BOOTHE, Judge.

Irby the appellant, was tried and convicted for unlawfully selling whiskey, fined $ 50, sentenced to jail for sixty days, and appealed to the supreme court.

The affidavit charging the offense was made before the mayor of the town of Sardis, Panola county, an ex-officio justice of the peace of the county and was in the following words:

"State of Mississippi, Panola County. Before me, E. C. Howry, mayor of Sardis and ex-officio justice of the peace of the county aforesaid, appeared C. L. Gordon, who makes oath, on information, that Jake Irby, in the First district of Panola county, state aforesaid, did engage in selling whiskey in the town of Sardis on the 18th day of February, 1905, by selling one quart to Eugene Armstead, contrary to the peace and dignity of the state of Mississippi."

The trial in the court of the justice of the peace resulted in the conviction of Irby and he appealed to the circuit court and after his conviction there he moved for an arrest of judgment and for a new trial, because the affidavit failed to charge that the sale was "unlawful." The motions were overruled.

Affirmed.

Shands & Montgomery, for appellant.

The affidavit against appellant was defective and invalid in that it failed to charge that appellant engaged in a sale that was unlawful. It failed to use the word, "unlawfully" in charging that appellant sold the intoxicant. Jordan v. State, 87 Miss. 170; Railroad Company v. Poole, 72 Miss. 490; Riggs v. State, 26 Miss. 51.

It is not sufficient to charge the commission of an offense which is simply malum prohibitum, in the language of the statutes; for the act, not being malum in se, will be presumed to have been lawfully done unless this presumption is negatived by positive language. Wile v. State, 60 Miss. 260.

Even though the court should take judicial notice that Panola county is a dry county under the local option law, and the sale was made in that county, yet the court must bear in mind that intoxicating liquors may under some circumstances be legally sold in dry counties, as expressly stated in Laws 1896, ch. 71, p. 82, giving wholesale druggists, domiciled and doing business in Mississippi, the right to sell alcohol to retail druggists and physicians, in any quantity not less than one gallon, without license; and as stated in Laws 1896, ch. 100, p. 107, making lawful the sale of wine made of grapes grown by the seller, in any quantity not less than one gallon in counties in which an election has been held on the subject of the sale of intoxicants, and which resulted against the sale thereof, and making it lawful for the executor or administrator of a deceased person to sell wine made of grapes grown by the deceased and remaining as part of his estate, within six months after the passage of the act. Hence it was important and material that the affidavit should charge that the sale by appellant was unlawfully made.

In King & Wall v. State, 58 Miss. 737, which was a prosecution of appellants for the sale of intoxicating liquors, COOPER, J., in delivering the opinion of the court, used the following language: "And for the defendants, it (the court) instructed the jury that if they believed that defendants sold the compound in good faith as a medicine, and not as a beverage, they ought to be acquitted, although the medicine contained vinous and spirituous liquors sufficient to intoxicate. And this instruction, we think, fairly presented the law. And see Goode v. State, 87 Miss. 495, where TRULY, J., reaffirmed the above doctrine.

The case of State v. Bertrand, 72 Miss. 516, relied on by the learned assistant attorney-general, is not in point.

George Butler, assistant attorney-general, for appellee.

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