McMillian v. State, 38819

• Decision Date: 12 October 1953
• Docket Number: No. 38819,38819
• Citation: 218 Miss. 264,67 So.2d 290
• Parties: McMILLIAN v. STATE.
• Court: Mississippi Supreme Court

Page 290

67 So.2d 290

218 Miss. 264

McMILLIAN v. STATE.

No. 38819.

Supreme Court of Mississippi.

Oct. 12, 1953.

Clayton Lewis, Philadelphia, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

ROBERDS, Presiding Justice.

This is another 'beaten path' liquor conviction. Appellant says the testimony does not sustain the verdict that the whiskey was in his possession. This, in substance, is the evidence:

The sheriff, armed with a search warrant, and accompanied by a deputy and two city policemen, appeared at the residence of appellant situated some five miles northwest of Philadelphia, Mississippi. Appellant was not at home. The sheriff served the warrant upon Mrs. McMillian and proceeded to make a search of the residence and the outhouses. In what he termed a 'shed' he found two or three empty jugs. He thought, from his sense of smell, the jugs formerly had contained whiskey. The policemen roamed the open spaces. They detected an old log road extending south from the residence. This they followed to a wire fence, running east and west, which had been constructed across this road. About this point they noted a path, or trail, beginning at the fence and extending in a southwesterly direction into a sedge field some two hundred yards. They crawled under the fence and followed this trail. Along beside, or near it, and at the end thereof, where it 'faded out', they found a total of fourteen gallons of whiskey. They conveyed this information to the sheriff, who got into his automobile and drove down the old road to the fence and viewed the scene. The wire fence was the south line of appellant's farm, consisting of 100 acres, and the fence was a quarter of a mile, or more from the residence of appellant. The land where the whiskey was found did not belong to appellant. Also, it was shown that the owner of the land, and two or three other persons, lived as near, or nearer, to that place than did appellant, and the whiskey was as accessible, or more so, to these parties than to appellant.

The road had been made years before by hauling staves from a sawmill and originally extended some distance south, or southeast, from the wire fence, which appellant had constructed a year before, and which fence, of course, obstructed travel by vehicles along that road. That road ran from the residence of appellant through his pasture and near his pond and cultivated fields. The sheriff thought he detected tracks of vehicles other than his automobile along that road. However, a number of witnesses, who inspected and examined the road the next morning, said no vehicle tracks were apparent upon it other than those made by the automobile of the sheriff.

The only other incident tending to connect appellant with the whiskey was that the policemen said as they went along this road they saw appellant some two hundred yards from his residence walking towards it from a southerly direction.

We have held that the finding of whiskey at the end of a beaten path on premises in the possession and under the control of accused, which path extends from the residence or place of business of accused to the whiskey, raises a presumption that the liquor is in his possession. Creel v. State, 183 Miss. 158, 183 So. 510; Smith v. State, 187 Miss. 96, 192 So. 436; Goss v. State, 187 Miss. 188, 192 So. 494; Wallace v. State, 189 Miss. 763, 199 So. 78; Williamson v. State, 191 Miss. 643, 4 So.2d 220; Jenkins v. State, 207 Miss. 281, 42 So.2d 198; McInnis v. State, 213 Miss. 491, 57 So.2d 137; Brown v. State, 192 Miss. 314, 5 So.2d 426. But where the whiskey is not found upon premises in the exclusive possession and control of the accused there must be additional incriminating facts connecting him with such possession, other than the...