Pope v. State
| Decision Date | 08 February 1915 |
| Court | Mississippi Supreme Court |
| Parties | POPE v. STATE |
October 1914
APPEAL from the circuit court of Panola county. HON. N. A. TAYLOR Judge.
Frank Pope was convicted of unlawful selling of intoxicating liquors and appeals.
The facts are fully stated in the opinion of the court.
Affirmed.
Shands & Montgomery, for appellant.
Ross A Collins, Attorney-General, for the state.
This is an appeal from a conviction of the crime of unlawful retailing. There was no evidence introduced on behalf of appellant. According to the evidence introduced on behalf of the state, appellant was given two dollars by Ben Chamblin with which to purchase for Ben a fifty-cent bottle of whiskey. This he did, delivering the whiskey to Ben, together with the one dollar and fifty cents remaining of the money given him with which to make the purchase.
The first assignment of error is that the court erred "in giving instruction No. 1 asked by the state," which instruction is in the following language:
"The court instructs the jury for the state that if they believe from the evidence, beyond a reasonable doubt, that in the town of Sardis, on or before the 25th day of July of 1913, defendant received fifty cents, or any other sum of money, from Ben Chamblin, for which he (defendant) delivered to said Ben Chamblin one pint of whiskey, then he is guilty as charged, and the jury should so find."
The objection to this instruction is that the mere delivery of the whiskey was not of itself sufficient to constitute a sale; delivery being only one of the elements necessary therefor. This is true as an abstract proposition; and had there been evidence of a delivery other than as a part of a sale, or that the fifty cents was given appellant merely for delivery of whiskey, with the purchase of which he was in no way connected, it may be that this objection would not be without merit; but, when viewed in the light of the uncontradicted evidence, the instruction should not have misled the jury.
Appellant is clearly guilty within the rule announced in Wortham v. State, 80 Miss. 205, 32 So. 50. While it is true that no witness saw him purchase the liquor, it is manifest that, if he purchased it as he agreed to do, it must have been in the town of Sardis, and therefore in a place where the sale of liquor was prohibited, for he returned with it within fifteen minutes after receiving the money.
The second assignment of error is that the court erred "in overruling defendant's...
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