Miller v. State

• Decision Date: 03 November 1913
• Citation: 63 So. 269,105 Miss. 777
• Court: Mississippi Supreme Court
• Parties: MILLER v. STATE

63 So. 269

105 Miss. 777

MILLER v. STATE

Supreme Court of Mississippi

November 3, 1913

October 1913

APPEAL from the circuit court of Winston county, HON. J. A. TEAT Judge.

Jim Miller was convicted of the unlawful sale of cocaine and appeals.

The facts are sufficiently stated in the opinion of the court.

Affirmed.

H. L Hopkins, for appellant.

It will be seen that this is a conviction under Chapter 186, Acts 1910, for the unlawful sale of cocaine. It will also be seen that the defendant was tried without the aid of counsel, and that counsel first appeared in the case upon the presentation of a motion for a new trial.

The motion should have been sustained, because the required elements of said act and of the indictment necessary upon which to sustain a conviction were not attempted to be brought out and proved by the state; that is, that the person to whom the cocaine was charged to have been sold was not a regular practicing physician or dentist, or that it was not upon the prescription of such physician, etc. Neither was it shown by the testimony that the thing sold, if anything, was cocaine, although there was an attempt to do it.

It may be argued that it devolved upon the defendant to have shown as a matter of defense, that the person to whom the cocaine was charged to have been sold was not a regular practicing physician, etc., as is required of defendant to show license if he has it on a charge of unlawful retailing. But now in these cases of unlawful retailing this court has uniformly held that it is incumbent on the defendant to show license in such cases as he has it upon one proposition only; and that is, "that when a fact is peculiarly within the knowledge of one of the parties so that he can have no difficulty in showing it, the presumption of innocence, or acting according to law, will not render it incumbent on the other side to prove the negative." Of course to possess a license for anything is peculiarly in the knowledge of the individual possessing it. But what some other person might possess, or what they might be or not be, cannot be said to be peculiarly within the knowledge of the defendant. The severity of the punishment in a case like this requires the state to make out its case according to law, and not leave the jury to assume anything of a material nature not bought out by the evidence.

This being a felony, and the defendant being before the court without counsel, the court should have instructed the jury fully as to defendant's rights in the premises. So upon the whole we think this case should be reversed.

Frank Johnston, assistant attorney-general, for the state.

After the fact of the sale was proven and after the state had shown that this man, Jim Miller, the vendor of the cocaine, was walking around with a lot of cocaine on his person and that he was a negro and that Genie Hickman was a negro boy, the inference was clear, in the absence of any further testimony on the subject, that neither Miller nor Genie Hickman were physicians or dentists, and moreover, there is nothing in the case, even in the remotest degree, suggestive of the idea that this cocaine was dispensed by Jim Miller who was a cocaine dealer, on the prescription of a physician. The least that can be said of the evidence for the state is that it makes out an ample prima facie guilt against the defendant.

Aside from this point, I call the attention of the court to the fact that the objection that the state did not prove that these parties were not physicians or dentists was never made in the case except in a motion for a new trial. The point is not technically well taken in a motion for a new trial on the ground of a defect in evidence, because it...