Parham v. State

• Decision Date: 14 November 1921
• Docket Number: 21712
• Citation: 89 So. 775,127 Miss. 8
• Court: Mississippi Supreme Court
• Parties: PARHAM v. STATE

89 So. 775

127 Miss. 8

PARHAM v. STATE

No. 21712

Supreme Court of Mississippi

November 14, 1921

INTOXICATING LIQUORS. Evidence held insufficient to show that liquor sold was intoxicating.

Where a defendant is convicted upon the charge of the unlawful sale of intoxicating liquor, and the testimony shows that the witness went to the defendant's place to get some whisky that he asked the defendant if he had "anything," and that finally the defendant told him he had a little "something," which "something" he placed in a half-gallon fruit jar which "something" was white in color and for which the witness paid the defendant ten dollars, and witness did not know whether it was whiskey or whether it was intoxicating, that he made no examination of the contents of the fruit jar, held, that this testimony is insufficient to sustain a conviction, and that the peremptory instruction requested by the defendant should have been granted.

HON. C P. LONG, Judge.

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

Andy Parham was convicted of unlawful sale of intoxicating liquors, and he appeals. Reversed, and judgment entered discharging the defendant.

Judgment reversed.

Geo T. Mitchell, C. R. Bolton and W. A. Blair, for appellant.

If it is still the law in Mississippi that a party charged with crime is presumed to be innocent until he is proven guilty beyond all reasonable doubt, and that the burden of proving him guilty is upon the state, and that every reasonable doubt arising from the evidence or the lack of evidence is to be given the defendant, and if it is still the law in Mississippi that a person charged with crime cannot be convicted upon mere speculation, conjecture or guess-work, then this court must necessarily reverse this case and discharge the defendant. While it is true defendant is charged with a violation of the liquor law, an offense against which the hand of every man is turned, yet we cannot conceive that even in a liquor case, a verdict will be permitted to stand upon such testimony as is disclosed by this record. It is difficult to find authority upon such a record as this for the reason that parties are not convicted upon such flimsy testimony and therefore they never reach the supreme court. In the case of Benoit v. City of Bay St. Louis, reported in 60 So. 137, the defendant in that case was convicted of having intoxicating liquor in his possession for sale, in violation of the city ordinance of the City of Bay St. Louis. The facts in that case were about as follows: "The city marshal, suspecting that defendant was going to bring whiskey on a train into Bay St. Louis, sent two special deputies to a station within the city limits to look out for him at that point. The defendant got off of the train at that point, and also took off two boxes, which the officers supposed contained whiskey. When defendant saw the officers, he put the boxes back on the train and got on the train himself and proceeded to the coal chute, also within the city limits. The marshal himself was on guard at the coal chute, and he testified that the defendant got off of the train and took off one of the cases, on which was printed in large letters 'Atherton Whiskey.' When defendant discovered the presence of the marshal he immediately reboarded the train with the boxes. This court in rendering its opinion, stated a very careful reading of the testimony fails to convince us that there was any sort of evidence upon which the jury's verdict could have been based, except mere suspicion."

We earnestly insist that the judgment of the court below should be reversed and appellant discharged.

H. Cassidy Holden, special assistant attorney-general, for the state.

The appellant contends that he was convicted on suspicion; that it was not proved that the liquor obtained from him was either intoxicating, vinous, malt, alcoholic, or spirituous liquor; that the liquor about which the witness testified was not shown to be prohibited by law. In other words, the appellant maintains that the verdict is not supported by the evidence. It is insisted that the court should have granted a peremptory instruction for the defendant which was requested at the close of the testimony for the state.

It is respectfully submitted that the court below committed no error in refusing to grant a peremptory instruction for the defendant. There was sufficient proof to establish guilt. It was shown that the witness Hines went to the defendant, told him that a dance was being...