Price v. State

• Citation: 61 So. 314,104 Miss. 288
• Court: Mississippi Supreme Court
• Decision Date: 24 March 1913
• Parties: GEORGE C. PRICE v. STATE

61 So. 314

104 Miss. 288

GEORGE C. PRICE v. STATE

Supreme Court of Mississippi

March 24, 1913

March 1913

APPEAL from the circuit court of Harrison county, HON. T. H BARRETT, Judge.

Geo. C Price was convicted of selling intoxicating liquors and appeals.

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

Affirmed.

Neville & Brogan, for appellant.

The first error to which we call the serious attention of the court was the action of the circuit judge in permitting the district attorney to show the record of the justice of the peace in case No. 1667 on the docket of the justice of the peace, and the record of the justice of the peace in cases Nos. 1593 and 1331. Of course, the theory of the state in introducing this testimony was to create upon the jury, if possible, the impression that before each term of the circuit court in Harrison county, Mississippi, George C. Price was tried by the justice of the peace on the charge of selling liquors and acquitted. We may admit that the circumstance was suspicious, but that is all, and no person can be convicted of any offense in Mississippi on mere suspicion. There is nowhere in this record anything which smacks of collusion between George C. Price and Justice of the Peace Kelly, and the witness for the state, or the person who made the affidavit against him; but as far as the record discloses everything was regular, and yet the jury were permitted to take these facts and to infer therefrom that the judgments of the court of the justice of the peace in all these cases were fraudulent. The law presumes that judgments of courts are regular and legal, and fraud is never presumed, but must be proven, and there is no evidence in this case establishing fraud of any sort or kind, and on the testimony this defendant should have had the peremptory instruction.

The court erred in giving instruction No. 1 for the state, because there was absolutely no testimony in the case upon which to support the instruction; no single witness ever testified that he bought liquor from Price subsequent to December 20, 1911, or that Price through anyone else under his drection and for him in his place of business sold liquor subsequent to the 20th day of December, 1911, and we invite the careful attention of the court to the testimony of the witnesses, Dolan and Lemon, in this case on that point.

The court erred in charging the jury in giving instruction 2 for the state, the obnoxious part of the charge being found in the words in the beginning of the charge, to wit: "The court charges the jury for the state that the burden of proving a former acquittal on a charge of selling intoxicating liquor in Harrison county, Mississippi, on the 20th day of December, 1911, is upon the defendant." As we understand the law in Mississippi, the burden of proof is never upon the defendant. This court has repeatedly held that in criminal trials the burden of proof never shifts, but that the burden is always upon the state to show to the satisfaction of the jury, and beyond every reasonable doubt, the guilt of the defendant before his conviction can be asked, and yet the court seriously tells the jury that the burden of proof is upon the defendant to prove a former acquittal. All that the defendant would be required to do under the law at all would be to raise a reasonable doubt of his guilt, and the proof with reference to a former acquittal could be and would be no higher than the proof on any other phase of the case.

The court erred in giving instruction No. 3 for the state which is more objectionable than instruction No. 2 where he again asserts that the burden of proof of a former acquittal is not only upon the defendant, but also that the burden is upon the defendant to prove that on the trial of said cause more than one sale of intoxicating liquor in Harrison county, Mississippi, was inquired into by the state, and we submit that these two instructions are absolutely violative of all the rules which have prevailed in Mississippi for all time in the trial of criminal causes.

The record in this case discloses that this defendant was arrested upon an affidavit before J. R. Kelly, a justice of the peace, that he was tried, and witnesses were examined, that the sales of liquor by him prior to the 20th day of December, 1911, were inquired into, and that after hearing the testimony, the justice of the peace discharged the defendant; and yet, notwithstanding this trial, without the slightest evidence of fraud or of collusion or of wrong, this defendant is again placed upon trial for the same offense and is convicted and a severe penalty imposed by the court in this case.

While the vigorous prosecution of persons for crime is to be commended, yet there is a matter of greater moment and importance and that is that the court shall see that no citizen of the state is improperly convicted of any offense.

Geo. H. Ethridge assistant attorney-general for the state.

I submit that the appellant in this case has not pressed his plea of former acquittal to a trial; that he should have had the matter tried separately and apart from the question of his guilt or innocence and the jury should have been required to respond on this issue under proper instructions of the court, and that not having pressed this issue to a decision on its merits, and there being no verdict on this proposition, that the appellant by going into trial on the merits must be taken to have waived any benefit of his plea. The burden was on the defendant to establish by competent evidence the identity of the crime charged, or that he was entitled to the benefit of the former adjudication. If mistaken in...