Presley v. State, 38611
| Decision Date | 23 March 1953 |
| Docket Number | No. 38611,38611 |
| Citation | 217 Miss. 112,63 So.2d 551 |
| Parties | PRESLEY v. STATE. |
| Court | Mississippi Supreme Court |
Bidwell Adam, Gulfport, H. W. Gautier O. L. McLeod, Pascagoula, for appellant.
J. P. Coleman, Atty. Gen., for appellee.
On January 25, 1952, a raid was made on the Sage Patch Cafe, located on the north side of U. S. Highway 90 near the line between Mississippi and Alabama; and certain slot machines found there, in the possession of appellant, were confiscated. Thereafter, appellant was convicted of the unlawful possession of said gambling devices in District No. 3 of Jackson County, Mississippi. The sole question raised on this appeal is whether the state has proved that the Sage Patch Cafe is in said district and county of Mississippi rather than in Alabama.
The evidence on this point can be summarized more succinctly and with greater clarity by presenting it as a whole, rather than as that for the state and that for appellant. In the first place, it was shown by several witnesses that for a number of years there had been a dispute, or uncertainty, as to the exact location of the state line. Among these witnesses were the sheriff of Jackson County, the chancery clerk, and two ex-sheriffs. There was evidence that several grand juries and a former sheriff had asked the board of supervisors to have the line located, and that a statute, Chap. 319, Laws of 1946, had been enacted, directing the governor and the attorney general to have the boundary line established. The sheriff stated that he did not know where the state line is actually located, that he did not believe that anybody else knew, and that since he had been sheriff he had kept slot machines out of Jackson County, but had not raided the Sage Patch Cafe because of the dispute as to its location.
Two of the state's witnesses testified on direct examination that the Sage Patch Cafe is in Jackson County, Mississippi. But, on cross-examination, one of them stated that he could not swear that it is, because he did not know, and that his statement on direct examination was based on the fact that, for a number of years, the operators of the cafe had paid privilege and ad valorem taxes in Jackson County. The other stated on cross-examination that he had testified that the cafe is in Jackson County because 'Sam Presley' owned quite a bit of acreage north and south of Highway 90 'against the Mississippi-Alabama line' and because the sheriff of Jackson County had collected ad valorem and privilege taxes on the property and business for a number of years. This witness, the sheriff, then testified at some length with reference to the dispute over the location of the line.
It was shown that for a number of years operators of the Sage Patch Cafe had paid ad valorem and privilege taxes in Jackson County, but the receipts are not in the record and it is not shown whether appellant had paid any such taxes as an operator of the cafe. There was testimony that one W. E. Howard had constructed the buildings (referring to the Sage Patch Cafe and the Sage Patch, a separate building on the south side of the highway, opposite to the cafe), that he was the owner of 100 or more acres of land in Jackson County against the eastern boundary lying north and south of U. S. Highway 90, and that after the buildings were constructed he acquired a parcel of land in Mobile County, Alabama on the highway at the state line. A deed dated in 1944 from Howard and wife to Sam Presley was identified, and it was stated that it conveyed certain land in Jackson County against the Alabama state line north and south of Highway 90, and also one acre of land in Mobile County, Alabama. The deed is not in the record. It was testified that land, buildings and improvements in Jackson County 'against the state line' were assessed to Sam Presley and others for a number of years. Ad valorem tax receipts for a number of years on property assessed to Sam Presley on the Mississippi side of the state line 'astraddle' of U. S. Highway 90 were identified, but they are not in the record.
The proof shows that there is a large granite boulder on the south side of the highway near the northeast corner of the Sage Patch, that a line run north from the boulder would strike the Sage Patch Cafe near the east side, and that the slot machines were found in the cafe west of such line. On the north side of the boulder, facing the highway, there is a bronze plaque with the following inscription: On top of the boulder there is a bronze disc bearing this inscription: In the center of the disc there is a triangle with a dot or hole in the center. A deputy sheriff testified that the boulder had been there for several years, and that the circular disc was placed there by the U. S. Coast and Geodetic Survey. A former sheriff stated that the boulder was placed there by 'some highway society or organization' and that afterward the U. S. Coast and Geodetic Survey disc was placed on top of it. There was no proof from any official source to show whether or not the boulder was located as the result of a survey of the state line. The superintendent of a construction company which had done highway work for the State of Alabama at this point in 1951 testified that the boulder was moved several times during the construction work, but only a few feet on each occasion, that he did not know what its original location was, and that it was finally left near the northeast corner of the Sage Patch. On the south side of the highway just east of the Sage Patch, there is a concrete monument about eight inches square. There is a similar marker on the north side of the road near the east side of the Sage Patch Cafe. The witness first stated that these markers bore the inscription 'Mississippi-Alabama State Line'; but, after the court and jury had visited the scene, he withdrew the statement about the inscription, stated that these monuments were highway right-of-way markers, and added that similar markers are located further east in Alabama. There was testimony that these markers were not placed to mark the state line.
There are several photographs in the record showing the Sage Patch and the Sage Patch Cafe, as well as the highway and the signs hereinafter mentioned. The proof shows that at a point about 160 feet west of the Sage Patch Cafe there are two large rectangular highway signs. One, on the south side of the road, bears the inscription: 'Enter Mobile Co. Alabama, Leave Jackson Co. Mississippi'. The other, on the north side, is lettered as follows: It was testified that these signs were erected by the Mississippi Highway Department in 1951 after the Alabama Highway Department had constructed new pavement on U. S....
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