Levy v. State

• Decision Date: 18 February 1907
• Citation: 42 So. 875,89 Miss. 394
• Court: Mississippi Supreme Court
• Parties: ISAAC LEVY v. STATE OF MISSISSIPPI

42 So. 875

89 Miss. 394

ISAAC LEVY v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 18, 1907

November 1906

FROM the circuit court of, second district, Perry county, HON WILLIAM H. COOK, Judge.

The appellant, Levy, was indicted and convicted of violating the act of 1900, ch. 104, sec. 3, making it a misdemeanor for the occupant of a building in which unlawful retailing is carried on, or liquors are unlawfully kept, to fail to give information thereof to some conservator of the peace. He was fined $ 500 and sentenced to jail for ninety days. From such conviction and sentence he appealed to the supreme court.

The indictment charged that Levy was the occupant of a certain building in Hattiesburg, in which building intoxicating liquors were unlawfully sold, and that he failed to give information of the same to a conservator of the peace although having knowledge of such sales. The indictment described the building as "a certain one-story frame building situated on lot 5, block 106, of the Kamper &amp Whinnery survey of the city of Hattiesburg, Mississippi, same being owned by Mrs. Nellie P. Shehan."

The proof showed that the defendant had leased and was occupying a one-story frame building situated on the aforesaid lot 5 and consisting of a storeroom and three back rooms, and owned by Mrs. Nellie P. Shehan. Behind this house was a small one, used as a market. The two houses, while in the same yard, were separated by a small fence having a gate, and the usual way of ingress and egress to and from this small market-house was through this gate and through the building leased and occupied by defendant. The sales of intoxicating liquors were made, with the knowledge of defendant, in this small market-house, and in every instance of sale the purchasers came and returned through the gate and building occupied by defendant and owned by Mrs. Nellie P. Shehan. The small market-house was owned, not by Mrs. Shehan, but by her brother, one Hamner. It was undisputed that defendant failed to inform any peace officer of the unlawful sales.

The act of 1900, under which defendant was prosecuted, is set out in the opinion of the court.

Reversed and remanded.

Currie & Currie, for the appellant.

The indictment charged that the defendant, Levy, was an occupant of a certain one-story frame building situated on lot 5, block 106, of the Kamper and Whinnery survey, which building belonged to Mrs. Nellie P. Shehan. But although the testimony showed that defendant occupied a building owned by Mrs. Shehan, fronting on Mobile street, in said lot 5, it failed to show that the sales were made in such building. Instead, it is undisputed that the sales were made in a little outhouse used as a market, and while situated on lot 5, of block 106, and near the house occupied by defendant, this little market-house was owned by one Hamner, a brother of Mrs. Shehan. So far as the record shows defendant never was in this small market-house.

The fact that the house occupied by defendant and the little market-house were very near each other does not change matters, as regards our contention that the houses were entirely separate. We contend that even if the little market-house where the liquors were sold was a part of the same premises, and not separated by fence from the house occupied by defendant, such market-house would still be, in contemplation of law, an entirely different building from the Shehan house.

Chapter 104, sec. 3, of the act of 1900, under which the indictment was drawn, does not contain the word "outhouse." But the Code 1906, § 1764, which is the same act brought forward with changes, does contain such word, showing that under the aforesaid act a conviction could not be had where the sales were made in a house different from the one occupied by the accused, no matter how close the two houses might be to each other.

For one to be an "occupant" of a building he must have an actual use and control as well as possession of the building there must be a subjection of the property, or some part...