Price v. City of Gulfport

• Decision Date: 06 June 1910
• Docket Number: 14520
• Citation: Price v. City of Gulfport, 52 So. 486, 97 Miss. 477 (Miss. 1910)
• Court: Mississippi Supreme Court
• Parties: GEORGE C. PRICE v. CITY OF GULFPORT

52 So. 486

97 Miss. 477

GEORGE C. PRICE v. CITY OF GULFPORT

No. 14520

Supreme Court of Mississippi

June 6, 1910

FROM the circuit court of Harrison county, HON. THOMAS H. BARRETT Judge.

Price appellant, was convicted in the municipal court of Gulfport of keeping intoxicating liquors, with intent unlawfully to sell them, in violation of an ordinance of the city. He appealed to the circuit court, was there tried de novo, was again convicted and appealed to the supreme court. The ordinance was the same as Laws 1908, ch. 114, sec. 1797. The facts upon which the case was decided are stated in the opinion of the court.

Affirmed.

J. H Mize, for appellant.

The court erred in admitting in evidence the whiskey seized in the depot by the officer. We think it was error to admit this evidence because the four cases found in the depot had never been in the actual possession of the appellant.

The court below erred in admitting in evidence copies of the records of the Louisville & Nashville Railroad Company. We think this error well taken because the records introduced are shown to be carbon copies and not originals, and further, we think that evidence to show that appellant had been getting quantities of liquor previous to the finding of the whiskey in his residence is incompetent, and only tended to prejudice the appellant in the eyes of the jury.

The court below erred in admitting in evidence the forty-two pints of whiskey found in Caspar Vahle's room and claimed by Vahle.

This is flagrant error, for which this case should be reversed. It is uncontradicted in the record, and Caspar Vahle himself testified that the room in which the forty-two pints of whiskey were found was Caspar Vahle's room, which he rented from Price and that the whiskey belonged to him. In this, he is corroborated by witnesses, Steiffer and Krebs, both of whom say that it was Vahle's room.

"The evidence of the possession by others of liquors kept for unlawful sale is not permissible where the defendant is in no way connected with the keeping of them." Efird v. State, 71 S.W. 957; 7 Ency. of Ev. 741.

This is not a prosecution for the sale of liquor. Until the enactment of Code of 1906, § 1762, the state even in prosecutions for the sale of liquor, had to select one sale within two years and then give all the evidence it could to substantiate that particular sale, the first sale located, but, having located a sale, it could not give evidence of any other sale; if so, it was reversible error. 70 Miss. 699; Ware v. State, 71 Miss. 204. The code section, 1862, does not apply to having in one's possession intoxicating liquors for the unlawful purpose of sale, as the court will see by even a casual reading of the section that it limits such evidence to cases of sale or giving away of liquors, bitters, etc., and does not apply to this case.

John J. Heiss, and James R. McDowell, assistant attorney-general, for appellee.

Fulmer, who testified to searching the apartments of appellant, stated that, upon being told the object of the search, the appellant showed him certain bottles of beer in the refrigerator; then pointed out the trap door in the floor and afterwards opened up all the doors of the various rooms in the apartment, including the one afterward claimed by Caspar Vahle as his own, telling him to search as he pleased. The witness found forty-two pints of whiskey concealed in a folding lounge in one of these rooms thrown open to him by appellant. He further testified that, on the same morning, he searched the Louisville & Nashville Railroad Company's freight depot at Gulfport, and there seized four boxes containing twelve gallons of whiskey marked and consigned to appellant. This is not all, for this witness further said that on returning to this depot on the afternoon of the same day, he saw and heard the defendant say he was reshipping two boxes of whiskey back to New Orleans.

During the testimony of this witness, on request of the appellant, the jury was taken for an inspection of the premises of appellant, and what they saw in the arrangement and paraphernalia of the place with reference to its equipment and adaptability for a blind tiger resort, in view of their verdict, could not have been favorable to the defendant.

There was one other witness for the city, Call, the local cashier of the freight depot. This witness produced the official duplicate freight bills covering a period of twenty-three days prior to the arrest of the defendant. These freight, or expense bills, as he termed them, showed shipments of whiskey to the appellant consisting of seventeen cases of whiskey which, from the testimony of officer Fulmer, contained three gallons in each box, or fifty-one gallons. Fifty-one gallons received at the depot on November 10th, 13th, and 20th. It is further testified to by Call that the appellant himself signed for all of this whiskey, and that his signature, so made,...