State v. Labella

• Decision Date: 23 February 1970
• Docket Number: No. 45710,45710
• Parties: STATE of Mississippi v. Louis P. LABELLA.
• Court: Mississippi Supreme Court

Page 354

232 So.2d 354

STATE of Mississippi v. Louis P. LABELLA.

No. 45710.

Supreme Court of Mississippi.

Feb. 23, 1970.

A. F. Summer, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellant.

Robertshaw, Merideth & Swank, Philip B. Terney, Greenville, for appellee.

JONES, Justice:

Having been convicted in the Justice of the Peace Court of District three of Sunflower County, appellee appealed to the Circuit Court where a demurrer to the affidavit as amended was sustained. The State appeals, and we reverse and remand.

The affidavit against appellee was drawn under Section 10223(b), Mississippi Code of 1942 Annotated (1952), the pertinent part of which reads as follows:

(I)t shall be unlawful for the holder of a permit authorizing the sale of beer or wine at retail:

(b) to sell, give, or furnish any beer or wine * * * to any person under the age of eighteen years.

The affidavit as amended charged:

Before me, L. A. Dodd, a Justice of the Peace of the County aforesaid, in Justice District No. 3, acting in the absence of D. C. Wiggins, Jay Blount makes affidavit that on or about the 8th day of February, 1969, in the State, County and District aforesaid, Louis P. Labella, the holder of a wine and beer permit issued by the State of Mississippi, did, by his servants or agents, to-wit: one, Curtis Clegg, unlawfully sell, give or furnish to Jay Blount, a minor 15 years of age, beer at Labella's Drive Inn, U.S. Highway 82 West, Sunflower County, Mississippi, against the peace and dignity of the State of Mississippi.

The appellee says the affidavit is defective because it does not charge appellee knew of Clegg's action. There are certain rules of law permeating this entire case. In misdemeanors, all who aid, incite, participate or abet the commission of such crime as well as those who perpetrate same are guilty as principals. Hathorn v. State, 246 Miss. 135, 149 So.2d 845 (1963); Smith v. State, 221 Miss. 184, 72 So.2d 215 (1954); State v. Treveilder, 103 Miss. 859, 60 So. 1015 (1912); suggestion of error overruled, 60 So. 1039 (1913); Reed v. Greenville, 83 Miss. 192, 35 So. 178 (1903); Johns v. State, 78 Miss. 663, 29 So. 401 (1900).

It is not necessary that he be present at the commission of the crime. Noble v. State, 221 Miss. 339, 72 So.2d 687 (1954); Smith v. State,221 Miss. 184, 72 So.2d 215 (1954); Kittrell v. State, 89 Miss. 666, 42 So. 609 (1906).

Under the above decisions, all who incite, participate in, or abet the commission of a crime are principals. Since, under this law, the appellee was a principal, he might be indicted as a principal and convicted as such on proof of aiding in, abetting of inciting the crime. Goss v. State, 205 Miss. 177, 38 So.2d 700 (1949). The manner or means employed generally need not be averred. 42 C.J.S. Indictments and Informations § 131, p. 1023 (1944). Neither do matters of evidence need averment, nor those of defense negation. 42 C.J.S. Indictments and Informations §§ 115, 116, p. 996 (1944).

Under these laws, the words '* * * by his servants or agents, towit: one, Curtis Clegg * * *' are surplusage and were not necessary to be included in the affidavit. The affidavit did not charge that Clegg was an employee and gave beer to a minor, for which appellee was responsible. It charges that Labella 'did * * * unlawfully sell, give or furnish * * *' beer to the minor. (emphasis added). This is a direct charge that Labella himself did it. He could not do it unlawfully unless he knew what he was doing. As stated, the indictment could have been drawn omitting the surplus words and have been a perfectly good indictment.

Generally, an indictment which is substantially in the language of the statute is sufficient. In State v. Coltharp, 176 Miss. 883, 889, 170 So. 285, 286 (1936), this Court said:

We are unable to apprehend wherein the indictment fails to be specific in presenting an indictment on this statutory charge. This indictment was drawn under section 889, Code 1930, is substantially in the language thereof, and is not subject to condemnation, as delineated in the case of State v. Cahn et al., 171 Miss. 458, 158 So. 202.

The evidence upon which the state relies for a conviction is not necessary to be recited in an indictment. The indictment is quite sufficient to inform the appellee that he is called upon to answer a charge of the embezzlement of two thousand four hundred dollars.

Generally, an indictment presented by virtue of a particular statute, which follows the language thereof, is sufficient. There are exceptions, but they are not referred to by the appellee, nor applicable in the case at bar.

We think the court below was in error in sustaining the demurrer to the indictment.

Appellee places reliance upon Kittrell v. State, 89 Miss. 666, 42 So. 609 (1906). It was held in that case that there is no variance between an indictment charging a defendant with the unlawful selling of intoxicants and proving that sale was made by defendant's employee acting for the defendant with his knowledge and consent. In the Kittrell, case, the Court gave an instruction for the State that a merchant is liable for the acts of his clerk in the unlawful sale of liquor even if the sale was made without his knowledge or consent, and that if the facts existed, the jury should find him guilty.

In that case the indictment was based solely on the ground that the defendant 'did unlawfully sell and retail intoxicating liquors without a license.' Speaking for the Court, Judge Calhoon said:

The court below was right in overruling the motion to exclude the state's evidence because of variance between allegations of the indictment and the proof. One who aids and abets in the commission of a misdemeanor is indictable as a principal, and there was evidence tending to show such aiding and abetting. Beck v. State, 69 Miss. 217 (13 So. 835); Wynn v. State, 63 Miss. 260.

Kittrell kept, in the building in which the liquor was said to have been sold, a general mercantile business, and was there only about once a week; he having another business six miles away, where he chiefly was. The sales were by a negro, who, Kittrell says, had nothing to do with the store, and that he (Kittrell) had no knowledge of any sale; and so, under the evidence for defense, which it was for the jury to consider, it was error to give the first charge for the state. That required conviction if the negro was permitted to sell by agents or clerks, even without the knowledge of Kittrell. If this be the law, any citizen may be criminally guilty, where a servant makes a furtive sale of liquor. 89 Miss. at 670, 42 So. at 610.

Under this case it is clear that lack of knowledge is a defense and a question of fact to be submitted to the jury.

In Smith v. State, 221 Miss. 184, 72 So.2d 215 (1954), appellant was convicted for transporting whiskey through Forrest County when he was not present in said county. The proof showed that the one that actually transported the whiskey was doing so for Vardaman Smith.

This indictment under the wording of the statute involved is not required to charge appellee with knowing that the employee sold or gave the beer to the minor. The statute does not use the word 'knowing' and besides the affidavit here involved is so worded as to show that the defendant knew of the employee's activities.

In State v. Brunjes, 187 S.W.2d 473, 475 (Mo.App., 1945), the Missouri court held:

Defendant was convicted under Section 4469, R.S.1939, Mo.R.S.A., our petit larceny statute, which provides 'every person who shall steal, take and carry away any money or personal property or effects of another under the value of thirty dollars * * * shall be deemed guilty of petit larceny. * * *' There is no statutory requirement that it be done with the intent of appropriating it to his own use and depriving the owner thereof. This for the reason that the words take, steal and carry away are commonly understood expressions and mean the theft of property; and theft is uniformly held to mean the fraudulent taking of personal property belonging to another, without his consent and with the intent to deprive the owner of the value thereof and to appropriate it to the use of the person taking. Black's Law Dictionary, 3d Ed., pp. 1658, 1725, and cases there cited.

In State v. Richmond, 228 Mo. 362, 366, 128 S.W. 744, 745, the court announces the Missouri rule as follows: 'For the practical administration of justice, we think it must be conceded that if a jury are told that if they believe from the evidence that the defendant feloniously took, stole, and carried away a horse, the property of 'A.,' they will understand as lawyers would that the defendant had taken the horse without the consent of the owner, and hence the adding of the phrase 'without consent of the owner' would add nothing to the strength or sense of the instruction. In Hughes v. Territory, 8 Okl. (28) 32, 56 P. 708, it is said: 'An examination of the authorities will show that 'larceny' and 'stealing,' at common law, had the same meaning, and such we think is the common understanding. State v. Schatz, 71 Mo. (502) loc. cit. 504."

In that case the court did hold the instruction erroneous because defendant was being prosecuted for grand larceny and that statute, Sec. 4456, R.S.1939, Mo.R.S.A., requires that the property be feloniously taken, and the instruction did not include that word. However, the petit larceny statute does not require that the property be feloniously taken. There is no merit in defendant's second criticism of instruction 2.

In the same case of Brunjes, the court quoted from another Missouri case as follows:

In State v. Johnson, 316 Mo. 86, 96, 289 S.W. 847, 851, the court said: 'When 'the act itself is criminal, and necessarily involves a knowledge of its illegality, no averment of knowledge or bad intent is necessary other than is involved in a statement of the facts of the offense." Furthermore, in ...