State v. Cannon
| Decision Date | 08 July 1918 |
| Citation | 79 So. 85,118 Miss. 230 |
| Court | Mississippi Supreme Court |
| Parties | STATE v. CANNON |
March 1918
APPEAL from the circuit court of Lincoln county, HON. D. M. MILLER Judge.
Luther Cannon was indicted for a violation of the liquor laws. From an order sustaining a demurrer to the indictment, the state appeals.
The facts are fully stated in the opinion of the court.
Affirmed.
Earl N Floyd, for appellant.
A person may order liquors in the name of another, either for himself or for the consignee, but unless the consignment of liquor comes within the exceptions of section 27 as to use, amount, etc., the act of so ordering it would be illegal. In other words, the said section 6 was aimed at the practice of ordering liquor in the name of another both to be used of the person ordering and the mere allegation that it was ordered in the name of another carries with it according to the ordinary meaning of the language, the inference that the interest of the consignee was only nominal and not real.
Section 26 of the said chapter 103 provides: "That in any indictment or presentment for any violation of this act it shall not be necessary to negative the exceptions herein contained, or that the liquors, bitters and drinks were ordered shipped, transported or delivered for any of the purposes set out in the succeeding section hereof; but such exceptions may be relied upon as defense and the burden of establishing the same shall be upon the person claiming the benefits thereof."
It is to be observed that the above section makes it unnecessary to negative in an indictment any of the exceptions under which liquor might be lawfully received, but expressly says that such exceptions shall be relied on as a defense. I therefore respectfully submit that the appellant should have been put to the necessity of proving that the liquors ordered in the name of another party came within the exceptions provided for in the act.
It is a well-established rule of criminal pleading that only when an exception in a penal statute is so incorporated with the enactment as to constitute a material part of the definition or description of the offense that it need be negatived in the indictment; otherwise, it is a matter of defense merely. An illustration: in an indictment under a peddler's license act which excepted from its operation goods manufactured in the state it was held in State v. Hogdon, 41 Vt. 139, that it was not necessary to aver that the goods peddled were not manufactured in the state. Under another statute of the same state prohibiting the killing of deer, the third section of which provides that it should not apply to deer partially or wholly domesticated. It was held in State v. Norton, 45 Vt. 258, that it was unnecessary to aver that the deer referred to was not domesticated. Joyce on Indictments, section 390, page 452.
Conceding that the foregoing rule is a true test we have only to determine whether the language of section 6 of the above act is such in itself as to make it necessary to negative the fact that the liquor so ordered in the name of another was not for the use of the person ordering the same. This rule of construction considered in the light of the express provisions of section 26, which is a statutory announcement of the same rule, is sufficient in my opinion to throw grave doubt on the correctness of the order sustaining the demurrer.
If mistaken in the foregoing contention, I submit that the court erred when it did not permit the amendment of the indictment in accordance with the motion to that effect so as to bring it beyond the peradventure of a doubt within the scope of the requirements of section 6. This amendment must, at most, be descriptive of the real ownership of the liquor alleged to have been ordered, and, under well established views of this court, descriptive matter may be inserted by amendment into an indictment.
That it is the policy of our state to permit liberal amendments in the way of indictments that do not affect prejudicially the accused and his defense is further shown by section 1426, Code of 1906, (section 1182 Hemingway's Code), which expressly provides that the court may cause the indictment to be amended for any formal defect.
Luther L. Tyler, for appellee.
The state complains that: 1. The demurrer should have been overruled; and, 2. The amendment should have been allowed.
Chapter 103, Laws 1916, contains many prohibitions regarding shipment, possession and use of intoxicating liquors. Section 1 forbids the shipment and transportation by any means, any liquors to be used or possessed in violation of any of the provisions of the act.
Section 2 forbids any person to accept any delivery in violation of the act. Section 3 prohibits banks handling drafts, etc. Section 4 prohibits the giving of an order for the delivery of any shipment to any person whereby the party receiving the shipment would obtain or receive it for himself.
This latter section is the only prohibition against ordering liquor, to be found in the entire chapter. All other prohibitions have to do with the acceptance, receipt, possession or use of such liquors. It is clear, therefore, that the intention of this section, on which the indictment in this case was attempted to be predicated, was to prohibit persons from ordering liquors shipped to him or for his use in the name of another person so as to thereby secure and obtain more liquor than he would otherwise be entitled to receive under this act.
The language of the section does not include any prohibition against ordering a quart of liquor shipped to a friend for the lawful use and possession of that friend, either specifically or by inference.
If Bolian had given Cannon an order for the shipment so as to enable the latter to secure the shipment, then there would have been a violation of section 4.
If Bolian had received the shipment and the same had been in excess of the amount allowed to be received by one individual within fifteen days, then there would have been a violation of section 9 of the act.
Under either state of facts, however, Bolian would have been the criminal, and not. Cannon. Unless, and not unless. Cannon ordered the liquor shipped "to him" in the name of Bolian, he violated no law. In other words, unless he had some interest in the liquor after its arrival and delivery unless by that...
To continue reading
Request your trial