Wortham v. State

• Decision Date: 26 May 1902
• Citation: 32 So. 50,80 Miss. 205
• Court: Mississippi Supreme Court
• Parties: JAMES WORTHAM v. STATE OF MISSISSIPPI

32 So. 50

80 Miss. 205

JAMES WORTHAM v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

May 26, 1902

FROM the circuit court of Harrison county. HON. JAMES H. NEVILLE Judge.

Wortham appellant, was indicted, tried, and convicted for selling whisky unlawfully, and appealed to the supreme court.

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

Affirmed.

Bowers Chaffe & McDonald and McWillie & Thompson, for appellant.

Wortham was indicted for the sale of liquor under code 1892, § 1592, and not under §§ 1604 or 1605 for soliciting orders or acting as agent for either purchaser or seller.

The agreement acquits the appellant of interest in the transaction, and establishes the fact that the liquor did not belong to him, but to the person from whom he bought it; that he was not interested therein, nor in the profits of the sale, but acted solely as the agent, and at the request of Thames, for whom the liquor was purchased.

The crime denounced by the statute is the unlawful sale of liquor, not the unlawful purchase. The object of the statute was to punish the man who dealt, not the man who drank, and we respectfully insist that he who acts for the purchaser and simply as his errand boy for the purpose of obtaining and returning the liquor unlawfully sold, has no connection whatever with the sale, and is only the "alter ego" of the purchaser.

This position was recognized by this court in the case of Johnson v. State, 63 Miss. 228, in which the appellant had purchased whisky jointly for himself and another, and had divided the liquor between himself and his copurchaser in proportion to the amount of money paid by each.

This conclusion accords with that reached by the supreme court of Alabama in Young v. State, 58 Ala. 358; a case similar in many respects to the one at bar, and finds affirmance in Monaghan v. State, 66 Miss. 513. The court said: "Undoubtedly a minor may be an agent or lawfully go on errands for an adult, and a person may buy through an agent, and in such case, there being no question of the fact of agency, although the dealing is with the agent, and the delivery is to him, in legal effect the sale is to the principal. The law is, that where a purchaser contracts as agent, or he is known to be such, the contract is with the principal and not with the agent. Beck v. State, 69 Miss. 217, is not at all like the case at bar.

Of course we are aware that the utterances in the case of Wiley v. State, 74 Miss. 727, are at variance with these views; but we respectfully submit that that case was ill considered, the law inaccurately stated, and the sound and wise decision in the Johnson case, 63 Miss. 228, utterly ignored and overlooked.

In the case at bar it is admitted that the appellant owned no liquor; that he sold no liquor; that he had no interest in any liquor sold; that he derived no profit from the transaction, but that he paid out the money given him by his employer in the purchase of the liquor for which his employer had sent him.

We are told that all who aid in the commission of a misdemeanor are principals--a proposition that no one will deny--but we are not told how the person who acts as the agent of the purchaser aids the seller in the commission of the offense. If one should be a party to the sale, or acting for the seller by soliciting the trade, or in any way assisting in the unlawful disposition of the liquor, we can see how he would be a participator in the misdemeanor, but we cannot understand how he who acts for the purchaser, and merely as a messenger, assists in the sale of liquor any more than a purchaser does himself.

If this conviction be correct, we shall be led to some very queer results. A merchant opens his store on Sunday and sells a barrel of flour. The vendee will be guilty, not of buying, but of selling a barrel of flour on Sunday. If a lawyer has failed to pay his privilege tax, and a third person, knowing of that failure, employs him to attend to legal business, that person is guilty of practicing law without license. A woman who falls by seduction will be indictable for working her own ruin.

We wish to emphasize the point that the court below erred in giving the peremptory instruction for the state, even on agreed facts. The instruction given is a peremptory one because it directed the jury, if they believed the agreed facts, "they will (peremptorily) find the defendant guilty." The following authorities maintain that in criminal cases juries are the judges of the law as well as of the facts. The instruction took from the jury the right to decide the law applicable to the agreed facts, and would have subjected them to being in contempt of court had they done so.

Bracton, who was chief justice under Henry II, says: "The jurors were necessarily the judges in all cases of life, limb, crime, and disherison of the heir in capite. The king could not decide, for he would have been both prosecutor and judge; neither could his justices, for they represent him." 1 Bract., 119. Littleton, about two hundred years later, declares: "If the jurors will take upon them the knowledge of the law upon the matter, they may give their verdict generally, as is put in their charge." 2 Litt., sec. 368. And, in 1628, Lord Coke said: "Although the jury, if they will take upon them the knowledge of the law, may give a general verdict, yet it is dangerous for them to do so; for, if they do mistake the law, they run into the danger of an attaint; therefore, to find the special matter, is the safest way, where the case is doubtful." 3 Co. Litt., 288, a.

In the case of State of Georgia v. Brailsford, in charging the jury, Chief Justice Jay, in 1794, said: "It may not be amiss here, gentlemen, to remind you of the good old rule that, on questions of fact, it is the province of the jury, and, on questions of law, it is the province of the court to decide. But it must be observed that by the same law which recognizes the reasonable distribution of jurisdiction, you have nevertheless the right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy." 3 Dall. (U.S.), 4.

In 1806, in the case of United States v. Smith and Ogden, Judge Tallmadge said: "You have heard much said upon the right of the jury to judge of the law as well as the fact. The law is now settled that this right appertains to the jury in all criminal cases. In exercising this right, they attach to themselves the character of judges, and are as much bound by the rules of legal decision as those who preside on the bench." Smith and Ogden Trial, 236.

In 1822, Richardson, Chief Justice of New Hampshire, in charging a jury, said: "It behooves us to aid you in these respects, though our remarks in the case are not binding, being yourselves, in this case, the judges of the law as well as of the facts; yet it deserves consideration whether it will be at all safe for you to depart from those legal principles which have been long adhered to in our courts of justice, and which were derived from that country where all our legal institutions originated." Blaisdell's Trial, 54.

Judge Prentice (Vt.), in 1829, said: "There is no doubt that, in criminal cases, the jury are the judges of the law as well as the fact. This is the true principle of the criminal law, and it is peculiarly appropriate to a free government, where it is unquestionably both wise and fit that the people should retain in their hands as much of the administration of justice as is consistent with the regular and orderly dispensation of it, and the security of person and property." State v. Williams, 2 Vt. 488.

Judge Kent, in 1804, said: "In every criminal case, upon the plea of not guilty, the jury may, and indeed they must, unless they choose to find a special verdict, take upon themselves the decision of the law, as well as the fact, and bring in a verdict as comprehensive as the issue." 3 Johns. (N. Y.), 327.

In 1828, Parker, Chief Justice (Mass.), said: "Each case stands almost independently of every other, depending upon the facts and circumstances which belong to it, and hence the principle now universally acknowledged in this country and England, that the jury, who are a selection from the people shall determine the whole case, both as to law and...