Smith v. State, 39149

• Decision Date: 10 May 1954
• Docket Number: No. 39149,39149
• Citation: 221 Miss. 184,72 So.2d 215
• Parties: SMITH v. STATE.
• Court: Mississippi Supreme Court

Page 215

72 So.2d 215

221 Miss. 184

SMITH v. STATE.

No. 39149.

Supreme Court of Mississippi.

May 10, 1954.

Wingo & Finch, Hattiesburg, for appellant.

J. P. Coleman, Atty. Gen., By Wm. E. Cresswell, Asst. Atty. Gen., for appellee.

ROBERDS, Presiding Justice.

This is an appeal from a conviction of the unlawful possession of intoxicating liquor.

Appellant says he could not be convicted of this crime under the facts of this case; that he did not have possession of the liquor; that this, at most, could only be possession by 'remote control'.

The undisputed facts are that on January 10, 1952, Harrison Brown was an employee of appellant in Simpson County at a wage of $30 per week. On that day appellant, while in Simpson County, placed in the possession of Brown $143 and instructed him to go to a certain place in Forrest County and there purchase whiskey and pay for it with that money and bring it to him. Brown went, driving his own automobile. When he got to the designated place he was told by some one to go to another place apparently a short distance away and there he would be delivered the whiskey. Brown did that and there two cases of whiskey were delivered him by some person he did not know. It was transferred from the motor vehicle of the delivering party to Brown's truck. Brown gave the party the $143, who delivered back to Brown $2. Brown, with the whiskey in his truck, started back on U. S. Highway 49 to deliver the whiskey to his employer in Simpson County. As Brown drove through Hattiesburg he was arrested for speeding and the officers found the two cases of whiskey in his automobile. They arrested Brown and took possession of the whiskey. Both appellant and Brown were charged in Forest County with unlawful possession of this whiskey. The case was nol-prossed against Brown and he was used as a state's witness. However, none of the stated facts are disputed. It is also not contradicted that, after the apprehension of Brown and the whiskey, and while Brown was in jail, that appellant came to Hattiesburg to bail Brown out of jail, and that he, Smith, told Mr. Hugh Herring, Assistant Chief of Police of Hattiesburg, that he, Smith, had sent Brown with the money to purchase the whiskey and he was the owner of the contraband.

Appellant was convicted of a misdemeanor. In this State there are no accessories in misdemeanors, but all who aid in and incite the commission of a misdemeanor are guilty as principals. Johns v. State, 78 Miss. 663, 29 So. 401; Reed v. Greenville, 83 Miss. 192, 35 So. 178; State v. Treweilder, 103 Miss. 859, 60 So. 1015; Grantham v. State, 190 Miss. 887, 2 So.2d 150. Indeed, this seems to be the general rule. Griffith's 'Outlines of the Law', page 948; 14 Am.Jur. page 835, Sec. 100. Of course, under the circumstances of this case, appellant did instigate, aid and abet in the commission of this misdemeanor.

Appellant says he committed no crime in Forrest County; that he was not in that county. We do not think the contention well taken. The possession of Brown was the possession of Smith. In Watson v. State, 166 Miss. 194, 146 So. 122, 127, this Court said: 'The appellant next contends that the venue was not shown to be in Marion county, because the proof failed to show where she was at the time of the robbery. There is no merit in this contention. The appellant was prosecuted and convicted on the theory that she was an accessory before the fact to a felony that was consummated in Marion county, and, as such, by virtue of the provisions of section 769, Code 1930, she is deemed and considered a principal, and is indictable and punishable as such, and it is immaterial whether she was in the county at the time the crime was consummated by her coconspirators.' In 22 C.J.S., Criminal Law, Sec. 184, [221 MISS 188] page 278, it is said: 'In misdemeanors all who take part are liable as principals and are indictable in the county where the offense is committed, although their participation may have been in another county.'

A case in point, supporting the stated rule, is Jackson v. State, 29 Ga.App. 324, 115 S.E. 507; Id., 154 Ga. 544, 114 S.E. 811.

The court refused the defendant the following instruction: 'The court instructs the jury for the defendant that the term 'conscious control' means, under the law, actual exercise of control with knowledge, and unless you believe, from the evidence, beyond a reasonable doubt that the defendant, Vardaman Smith, either actually possessed intoxicating liquor or actually knowingly controlled such intoxicating liquor in Forrest County, Mississippi, then it would be your sworn duty to find the defendant 'Not guilty'.' We think this instruction would have been misleading to the jury. The words 'actual exercise of control' convey the idea of necessity of physical, manual possession of the whiskey by Smith. That was not necessary to conviction. In addition, other granted instructions set forth the essential elements necessary to conviction.

Appellant says the court granted conflicting instructions to the State and defendant which necessarily...