King v. State

• Decision Date: 27 May 1889
• Citation: King v. State, 66 Miss. 502, 6 So. 188 (Miss. 1889)
• Court: Mississippi Supreme Court
• Parties: P. B. KING v. THE STATE

6 So. 188

66 Miss. 502

P. B. KING v. THE STATE

Supreme Court of Mississippi

May 27, 1889

FROM the circuit court of Copiah county, HON. J. B. CHRISMAN Judge.

The appellant was indicted under a local act of the legislature approved February 29, 1889, entitled," An act to prohibit the sale of intoxicating liquors in supervisor's district, number one, Copiah county, Mississippi." Section one of that act is as follows: "That hereafter it shall be unlawful for any person to sell or give away in any public place, or for the purpose of inducing trade, any intoxicating or malt liquors, or any kind of bitters, in any quantity whatever, in supervisor's district, number one Copiah county."

The indictment averred that appellant sold spirituous and intoxicating liquors, without any legal authority, but it did not state that the sale was in a public place or for the purpose of inducing trade. The defendant moved to quash the indictment because of this omission, but the motion was overruled.

The defendant then pleaded not guilty, and upon the trial the district attorney introduced evidence of three distinct sales of a corn pound, labeled "pine apple balm."

The sales were at different times and to different persons. After proving that the liquor was used as a beverage and was intoxicating, the state rested. Thereupon the defendant moved the court to require the district attorney to elect which sale testified to by the witnesses he would rely on for a conviction. This motion was overruled.

The defendant then testified in his own behalf that he sold the "pine apple balm" in good faith as a medicine, and not as a subterfuge for intoxicating liquor, and was not aware that it was a violation of the law.

The court instructed the jury in behalf of the state that "if they believed from the evidence beyond all reasonable doubt that King sold the pine apple balm, and that it is intoxicating if drunk in sufficient quantities, then the jury ought to convict King, whether King knew it was intoxicating or not."

The defendant asked for these instructions which were refused:

1. "If the defendant sold the pine apple balm in good faith as a medicine and not as a spirituous or intoxicating beverage, they should acquit, notwithstanding the fact that it contained spirituous liquor sufficient to intoxicate."

2. "The court instructs the jury that unless they believe from the evidence, beyond a reasonable doubt, that King willfully sold intoxicating liquors they must acquit."

The defendant was convicted and sentenced to imprisonment, in the county jail for sixty days and to pay a fine of twenty-five dollars, and from this judgment he appeals and assigns for error the action of the court on the above instructions, and its refusal to require the prosecution to elect the offense for which it would ask a conviction.

Judgment reversed and cause remanded.

H. C Conn, for appellant.

The circuit court held in its ruling that the words "in a public place," and "for the purpose of inducing trade," referred only to giving away; not to selling. This conclusion is reached only by taking for granted that the law must be what its title seems to indicate the intention to be. But the title is no part of the statute and cannot be used to extend or restrain any of its provisions. Bish. Stat. Cr., §§ 45, 46; People v. McCann, 16 N.Y. 58.

There is nothing ambiguous about the statute, nor is there reason to strain it so as to make all its parts harmonize. In fact it is entirely grammatical and consistent with itself and the laws of the state, easy to be understood, and capable of being enforced. It was already a violation of law to sell liquor in Copiah county, and if presumptions are to be indulged we would not presume that the legislature meant simply to re-enact the existing law. The obvious meaning was to make it more penal to sell in a public place. The legislative intent must be found in the act itself. Bish. Stat. Cr., §§ 81, 82.

The court erred in not requiring the prosecution to elect which offense it would pursue. Roscoe Crim. Ev. 216; Lebkovitz v. State, 14 N.E. 363; Whart. Cr. Ev., § 104.

The action of the court on the instructions was erroneous. By them the court makes the mere fact that a liquor or medicine sold by a druggist will, if drunk in sufficient quantities, produce intoxication, sufficient in any case, leaving out the good faith and honest intention of the druggist.

Perhaps a majority of the liquid medicines sold in drug stores contain alcohol or liquid that will intoxicate if drunk in sufficient quantities. This court, in King v. The State, 58 Miss. 740, laid down a more reasonable rule, and the main instruction asked and refused in this case is taken from that opinion. It should have been given.

T. M. Miller, attorney-general, for the state.

1. The indictment was sufficient. The act of 1888, when read in the light of the known policy of the state as declared in all the legislation on the subject of the liquor traffic, with reference to the former law and the mischief, will make it evident to the court that its intent was to make unlawful all sales under any circumstances punishable. The words "public place" and "for the purpose of inducing trade" relate to the giving away.

2. There was no error in allowing proof of more than one sale, and in refusing to require the state to elect. It is immaterial to whom the sale was made, or how many sales were made, and since the conviction would preclude a further prosecution for any of the sales given in evidence (as held in Bowman v. The State, 57 Ind. 76), no good reason can be perceived against the introduction of such evidence, or for requiring the district attorney to elect. Pearce v. The State, 40 Ala. 724; 1 Whart. Cr. Law, § 635. It was permissible to prove that the defendant was a common seller. "In view of the fact that the offense is not, like assault and battery, directed against the individual, but, like nuisance, is directed against the community, we may reconcile ourselves to the more convenient practice of omitting the vendee in all cases where the statute forbids sales irrespective of persons." 2 Whart. Cr. Law, § 2447.

3. The combined proof is that the liquor was sold as a beverage. If pine apple balm is a medicine, the fact does not appear in evidence. The good faith and intent of the defendant were immaterial. The fact of selling is enough trader a law of this kind.

4. There was no error in reference to the instructions. If this intoxicant were a genuine medicine, preserved in spirits, and was sold with due caution, it would be open to inquiry whether in a statute like this there is an exception implied in favor of such sales. 2 Whart. Cr. Law, §§ 2441, 2442; Bish. Stat. Cr., § 1020. I submit there is no prejudicial error in this case.

OPINION

ARNOLD, C. J.

The indictment is sufficient. It was not necessary to allege in it, that the sale was made in a public place, or for the purpose of inducing trade.

Manifestly, the act of 1888, on which the indictment was framed, prohibits selling, whether in a public or private place, and without reference to the purpose for which the sale may be made. The terms "public place," and "inducing trade," used in the statute, apply to giving away, and not to selling.

After the state had proved distinctly, one unlawful sale, it was error to admit testimony of other and different sales. The general rule is, that the issue on a criminal trial, shall be single, and that the testimony must be confined to the issue and that on the trial of a person for one offense, the prosecution cannot aid the proof against him, by showing that he committed other offenses. Whart. Cr. Ev., § 104; 1 Bish. Cr. Pro., § 1120 et seq. The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice and oppression in criminal prosecutions. Such evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that...