Johns v. State

• Decision Date: 11 February 1901
• Citation: 29 So. 401,78 Miss. 663
• Court: Mississippi Supreme Court
• Parties: THOMAS JOHNS v. STATE OF MISSISSIPPI

29 So. 401

78 Miss. 663

THOMAS JOHNS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 11, 1901

October 1900

FROM the circuit court, first district, of Chickasaw county. HON EUGENE O. SYKES, Judge.

Johns the appellant, was defendant in the court below, and appealed to the supreme court from a judgment convicting him of unlawfully selling whisky. The opinion states the case.

Affirmed.

Buchanan & Orr, for appellant.

The verdict is too uncertain upon which to predicate a conviction. The indictment charged appellant with unlawfully selling whisky on October 2, 1899, in the first district of Chickasaw county. The verdict does not find him guilty as charged, but, by implication rather, finds to the contrary. It says he is "guilty of aiding selling whisky." When? Where? How? We have a statute (code 1892, § 1604) making it a distinct misdemeanor to act as agent of either the seller or the purchaser in an unlawful sale of intoxicants, but appellant was not indicted thereunder.

Monroe McClurg, attorney-general, for appellee.

The indictment was drawn under § 1592 of the code of 1892. It charges a misdemeanor, and all who aided or abetted are principals, hence it is immaterial whether he did the direct selling or aided therein, he was properly convicted. This rule is not changed because § 1604 provides for the indictment and conviction of an agent or assistant. There is a clear legal distinction between one who merely aids and abets, especially in the manner disclosed by the testimony in this case, and those who act as agents or as servants as contemplated in § 1604. The latter class are generally compensated in some way, while the former generally are not, unless they get a drink. Beck v. State, 69 Miss. 217; Dahmer v. State, 56 Miss. 787.

The verdict is responsive to the issue. It is in the language of the testimony. "Of aiding in selling whisky" may be treated as surplusage, but it means, "We, the jury, find the defendant guilty as charged." It is not a special verdict. Traube v. State, 56 Miss. 153; Timmons v. State, 56 Miss. 786.

OPINION

TERRAL, J.

The appellant was indicted in the circuit court of Chickasaw county, first district, for the sale of vinous and spirituous liquors without license. The court instructed the jury that if they believed from the evidence, beyond all reasonable doubt, that the defendant sold the whisky as charged, or in any way aided and abetted in making the sale, they should convict, whereupon the jury returned this verdict: "We, the jury, find the defendant guilty of aiding selling whisky."

It is urged that the verdict is insufficient to support a judgment. At common law there are no accessories or distinction of...