Smothers v. City of Jackson

• Decision Date: 30 March 1908
• Citation: Smothers v. City of Jackson, 92 Miss. 327, 45 So. 982 (Miss. 1908)
• Court: Mississippi Supreme Court
• Parties: EMMA SMOTHERS v. CITY OF JACKSON

45 So. 982

92 Miss. 327

EMMA SMOTHERS v. CITY OF JACKSON

Supreme Court of Mississippi

March 30, 1908

March 1908

FROM the circuit court of, first district, Hinds county, HON WILLEY H. POTTER, Judge.

Madame Smothers, appellant, was convicted in the police court of Jackson on the charge of unlawfully keeping for sale or barter intoxicating liquors within the city limits, and was fined $ 100 and costs. She appealed to the circuit court where she was tried and again convicted of the charge, the same fine being imposed; and from such conviction and sentence she appealed to the supreme court.

The evidence for the prosecution showed that, as a result of a visit, under search warrant, made upon appellant's premises by two policemen, two casks of beer, hidden away and a large quantity of empty beer bottles were found. Code 1906, § 1746, makes the unlawful sale, or keeping for sale or barter, of intoxicating liquors a misdemeanor under the state law. The city of Jackson, at the time of the visit and trial, had no special ordinance declaring such unlawful sale, or keeping for sale or barter, a municipal offense, but by an ordinance adopted in 1903, all acts constituting a misdemeanor under the laws of the state were made offenses against the municipality when committed within its limits. On the trial the state, in addition to showing the finding of the intoxicating liquors on appellant's premises introduced evidence to show that appellant had the general reputation, in the community where she lived, of being the keeper of a resort for the illegal sale of intoxicants; and by the testimony of the city police justice and by his official docket, the state was allowed, over appellant's objection, to show that she had been arrested on such charges four separate times before. Appellant's objection was based on the ground that her reputation was not in issue. No evidence was introduced by appellant.

Reversed and remanded.

W. J. Croom, for appellant.

The city of Jackson has no ordinance expressly touching this alleged offense of appellant, but to sustain conviction the city depends upon the ordinance of 1903 providing that all offenses made misdemeanors under the state laws shall, when committed within the limits of the municipality, be an offense against the city. Now, in 1903, practically three years before the adoption of our present code of laws, there was no such offense as the "unlawful keeping of intoxicating liquors for sale." Such act first became a misdemeanor in 1906. The city ordinance of 1903 manifestly included only such misdemeanors under the state laws as were in force in 1903. The case of Winfield v. City of Jackson, 89 Miss. 272, 42 So. 183, is not in point.

It was error in the court below to admit evidence as to the reputation of the appellant, inasmuch as her reputation had not been placed in issue by any action of her own. She had not introduced any evidence of any sort. The sole question was whether she was guilty of the special charge of illegally keeping intoxicants, within the city limits, for sale or barter. See Hubbard v. State, 64 Miss. 317, 1 So. 480.

Garrard Harris and George Butler, assistant attorney-general, for appellee.

By the undisputed testimony of reputable witnesses the prosecution showed that when the visit to appellant's premises was made, large quantities of intoxicating liquors were found hidden away behind hatracks, under the grates, in piles of soiled clothing, and elsewhere; and that a huge array of empty beer bottles adorned the rear of her...