Schillings v. State

• Decision Date: 11 June 1928
• Docket Number: 27158
• Citation: 151 Miss. 361,118 So. 137
• Court: Mississippi Supreme Court
• Parties: SCHILLINGS v. STATE. [*]

118 So. 137

151 Miss. 361

SCHILLINGS v. STATE. ^[*]

No. 27158

Supreme Court of Mississippi

June 11, 1928

Division B

Suggestion of Error Overruled Sept. 24, 1928.

APPEAL from circuit court of Jones county, HON. WALTER A. WHITE Special Judge.

Obe Schillings was convicted of the unlawful possession of intoxicating liquor, and he appeals. Affirmed.

Judgment affirmed.

H. L. Finch, for appellant.

James W. Cassedy, Jr., Assistant Attorney-General, for the state.

OPINION

ETHRIDGE, P.J.

Obe Schillings was tried and convicted for the unlawful possession of intoxicating liquor, fined one hundred dollars and costs, and sentenced to thirty days in jail, but the jail sentence was suspended on good behavior. From said conviction and sentence, he appeals to this court.

The facts upon which Schillings was convicted were these: Joe Hill, a deputy sheriff of Jones county, Miss., on the 15th day of December, 1927, was driving along the public highway between Laurel and Ellisville, and, while passing a vacant house that had been a restaurant and filling station, he detected the odor of whisky, and got out of his car to make an investigation. He discovered appellant, with others, inside the building. Appellant, at the time he (the deputy sheriff) entered the house, had in his hand a bottle containing liquor, but, as the deputy sheriff approached him, he broke the bottle over an old stove which had been left in the abandoned restaurant. The deputy sheriff testified that there was liquor in said bottle so broken.

Appellant denied that there was liquor in the bottle, and denied that he had the unlawful possession, ownership, or control of any liquor and claimed that the bottle which the deputy sheriff found in his possession was an empty bottle that had been left in the old abandoned restaurant. Another witness testified for the appellant to the same effect.

There was also testimony to the effect that two women were sitting in a car near the old abandoned building at the time the deputy sheriff made this inspection of the building. It does not appear that the deputy sheriff had a warrant to make an arrest, nor does it appear that the appellant, or either of the other persons with him, owned or had any right to the possession of the building.

It is urged, first, that the evidence is insufficient to sustain the conviction. As we understand the law, the presence of whisky may be established by smell as well as by vision; and the fact that the deputy sheriff smelled liquor as he approached the building, and, deeming it his duty to investigate and ascertain, if possible, whether liquor was being possessed contrary to law, went inside the building and there saw the appellant break the bottle in which there was whisky, and smelled the whisky as it was spilled upon the floor, was sufficient to go to the jury upon the question of whether the appellant was in possession of intoxicating liquor. Having the bottle in his hand and breaking it himself is a fact which, coupled with the fact that the bottle contained whisky, when taken in connection with appellant's denial that there was whisky in the bottle, is sufficient evidence for the jury to infer that appellant was the possessor of the liquor.

Appellant next assigns as error certain remarks made by the county attorney in arguing the case. It is first argued as error that the county attorney made the following remark:

"What interest could the witness Joe Hill have in the case? He was a deputy sheriff and not an undercover man, getting a part of the fine imposed for his services."

The bill of exceptions shows that the court sustained this objection, and the record does not show that a motion was made to discharge the jury and enter a mistrial. Furthermore,...