State v. Owen

• Decision Date: 06 July 1914
• Citation: 65 So. 641,107 Miss. 565
• Court: Mississippi Supreme Court
• Parties: STATE v. OWEN

65 So. 641

107 Miss. 565

STATE v. OWEN

Supreme Court of Mississippi

July 6, 1914

March 1914

APPEAL from the circuit court of DeSoto county. HON. N. A. TAYLOR Judge.

Jim Owens was indicted for acting as agent in the sale of intoxicating liquor. From an order sustaining a demurrer to the indictment the state appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

J. M Varderman, for appellant.

The laws of Mississippi relating to intoxicating liquors do not require a person to sell liquor; if he acts as agent he is as guilty as if he had sold the liquor. Under the facts stated in the affidavit in this case it appears to me that this case would be governed by the Hart case, 87 Miss. 182, wherein the court had before it practically the same state of facts as exists in the case at bar. In that case the court held that a crime had been committed and that appellee was guilty of acting as agent, even though the liquor was ordered from out the state. In the course of the opinion the court said: "A sale of intoxicating liquors was made. Appellant assisted in effecting the sale, and acted as agent of the seller in this state at a place 'in which the sale of such liquor is prohibited by law.' This constitutes the specific offense dealt with by this particular statute, and every element of appellant's guilt is plainly shown." Hart v. State, 87 Miss. 182, 39 So. 526. This case is the leading case in Mississippi and has been quoted and followed in numerous cases. See Powell v. State, 96 Miss. 608, 51 So. 465, which cites and follows the Hart case, supra. The case of Anglin v. State, 96 Miss. 215, 50 So. 492, 728, is also a leading case on the question before the court in the case at bar.

With these considerations I submit this case to the court and insist that the judgment of the lower court be reversed and appellee be required to answer for his crime.

OPINION

COOK, J.

Omitting the formal parts, the indictment in the present case reads--

"did unlawfully on the 7th day of October, 1913, within said district, county and state, become the agent of one Will Hughey, to procure for him, the said Will Hughey, four quarts of whisky out of the state of Mississippi, and to bring into said state, county, and district above mentioned said four quarts of whisky, and intended to deliver the same to the said Will Hughey. And that in pursuance of such agency, the said Jim Owens unlawfully did act as agent, and did assist Will Hughey, the purchaser, in effecting the sale of whisky, and unlawfully did, on or about the 7th day of October, 1913, procure out of the state of Mississippi, and bring into the same, and unto the county and district aforesaid, the said four quarts of whisky, with the intent of him, the said Jim Owens, to deliver the same to the said Will Hughey, as agent of the said Will Hughey, against the peace and dignity of the state of Mississippi."

To this indictment a demurrer was interposed. The demurrer was sustained, and defendant was discharged, from which judgment the state prosecutes this appeal

In the brief for the state we find this observation:

"From a careful reading of the affidavit in this case it appears that appellee had gone out of the state of Mississippi, procured whisky for Will Hughey, and delivered same to him in Mississippi, thereby acting as agent for the said Will Hughey in violation of the Code of 1906, section 1771, amended 1908, chapter 115."

It will be noted that the alleged crime charged against ...