Opinion
No. 40052.
March 19, 1956.
1. Intoxicating liquors — transporting beer in dry county allegedly for personal consumption — replevin action to recover beer seized by officer — evidence.
In replevin action in county wherein beer had been excluded against Chief of Police to recover possession of 450 cases of beer taken by police officers from truck driven by plaintiff, where issue under existing statutes was whether plaintiff was transporting the beer for her personal use and therefore lawful, evidence of prior raids at home of plaintiff and husband and finding there of beer in large quantities, together with evidence of prior sales of beer in plaintiff's home not shown to have been made by plaintiff and of issuance to plaintiff's husband of a retail dealer's license, were incompetent, but admission of such evidence did not constitute reversible error. Secs. 10207, 10208, Code 1942.
2. Replevin — beer seized while being transported in dry county allegedly for personal consumption — evidence — burden of proof — beer legally seized.
In such case, evidence was insufficient to meet burden resting on plaintiff to establish her right to immediate possession of the beer on ground that she was transporting beer for her own personal consumption, and hence legally, when it was seized. Secs. 10207, 10208, Code 1942.
Headnotes as revised by Holmes, J.
APPEAL from the Circuit Court of Lee County; RAYMOND T. JARVIS, Judge.
Adams, Long Adams, Tupelo, for appellant.
I. Under the plea "Not Guilty" the defendant below undertook to show that the beer was illegally held and was held for purpose of resale. Under these circumstances, the burden of proof was on the appellee to show these facts. Stewart v. First Natl. Bank Tr. Co. of Vicksburg, 192 Miss. 461, 5 So.2d 683; Stewart v. Graham, 93 Miss. 251, 46 So. 245.
II. Defendant attempted to show by isolated sales and isolated raids, where beer was found at plaintiff's husband's home in Union County, and by isolated sales all prior to the seizure of appellant's beer, the reputation of her husband and her husband's place. Timely objection was made to this evidence. All this evidence was incompetent and should have been excluded. It opened up many foreign and extrinsic issues. State v. Sisk, 209 Miss. 174, 46 So.2d 191; McGee v. State, 75 Miss. 352, 22 So. 890; Floyd v. State, 166 Miss. 15, 148 So. 226; Morris v. State, 16 Miss. 762, 8 Sm. M. 762; Slaydon v. State, 102 Miss. 101, 58 So. 977; Dedeaux v. State, 125 Miss. 326, 87 So. 664; Kehoe v. State, 194 Miss. 339, 12 So.2d 149; Bennett v. State (Miss.), 52 So.2d 837; Cotton v. State (Miss.), 17 So. 372; Kearney v. State, 68 Miss. 233, 8 So. 292.
III. There is a statute authorizing evidence of prior sale of liquor in prosecutions for sale of liquor, but it is limited strictly to the language of the statute. Craft v. State, 155 Miss. 465, 124 So. 488; Patton v. State, 209 Miss. 138, 46 So.2d 90; Bradley v. State, 134 Miss. 20, 98 So. 458; Lowe v. State, 127 Miss. 340, 90 So. 78.
IV. The evidence as to plaintiff's character and former actions should have been excluded. State v. Sisk, supra; Nelson v. State, 129 Miss. 288, 92 So. 66; 20 Am. Jur., Sec. 319 p. 299.
V. Had this evidence been competent, it could not have been shown by isolated acts of her and her husband's conduct but could have been shown only by the usual and customary way of showing reputation, as prescribed by our rules of evidence.
VI. Although there is some difference of opinion as to the kind of evidence by which character may be proved, the generally prevailing rule is that testimony to prove the good or bad character of a party to a civil action or of the defendant in a criminal prosecution must relate and be confined to the general reputation which such person sustains in the community or neighborhood in which he lives or has lived. 20 Am. Jur., Sec. 326 p. 305.
VII. The Court below agreed with the principles laid down in State v. Sisk, supra, but said the rule as to proof of character was different in civil cases to that of criminal. We think this is not so. Graves v. Johnson, 179 Miss. 465, 176 So. 256; Pounders v. Day, 151 Miss. 781, 118 So. 298.
VIII. Without this incompetent evidence, there was no contradictory evidence to that of plaintiff below and the presumption of lawful use stood uncontradicted; therefore, her motion for a pre-emptory instruction should have been sustained.
IX. The burden was on defendant below to show that the beer was illegally held by appellant, and there was no showing that it contained more than four per cent of alcohol by weight. For this reason also, the peremptory instruction should have been granted. City of Amory v. Yielding, 203 Miss. 265, 34 So.2d 726; Hoyle v. State, 216 Miss. 330, 62 So.2d 380.
C.B. Hutchison, Sam E. Lumpkin, Tupelo, for appellee.
I. Venue was never proven.
II. It devolved upon plaintiff to prove venue of the action of replevin and if she failed to so do, the defendant was entitled to a directed verdict.
III. The beer in question was seized by the lawful officers of the City of Tupelo as contraband. The intent of plaintiff to use the beer illegally is the question involved. If the plaintiff did not intend to sell or dispose of the beer in an illegal way, then the beer was not contraband and she had a right to the possession of same; but on the other hand, if she intended to sell same or have same sold in a dry county, then it was contraband. Defendant contends that the testimony introduced by defendant in Court below was not for the purpose of establishing guilt of a crime, for the reason that no one is charged with the commission of a crime. It only goes to show the intent of plaintiff to illegally dispose of the beer. Plaintiff testified in the Court below that she had four hundred and fifty cases of beer for her own use, and it is the contention of defendant that he had the right to show by the witnesses introduced in this cause the conduct of plaintiff with reference to the use and disposition of beer in her possession and at her home prior to and since the seizure of the beer in question in contradiction to her testimony. This testimony was introduced to show the intent of plaintiff, and that alone.
IV. Plaintiff testified that she had the beer in her possession for her own use. The burden of proof is on plaintiff to establish this fact by a preponderance of the evidence, and the burden never shifted to the defendant.
V. This testimony of defendant placed in issue the intent of plaintiff and became a question of fact for the jury.
VI. The beer in question was contraband, and the defendant had a legal right to seize same and destroy same according to law.
The appellant brought a replevin action against the appellee to recover the possession of 200 cases of Blue Ribbon beer, 200 cases of Schlitz beer, and 50 cases of Falstaff beer. She alleged in her affidavit and in her declaration that she was the owner of the beer, that it was of the value of $2360.00, that it was being wrongfully detained by the appellee, that it had been wrongfully taken from her possession within thirty days, and that she was legally entitled to the immediate possession thereof. She demanded in her declaration both actual and punitive damages for the alleged wilful and wrongful taking of the beer. She withdrew her demand for punitive damages, and there was no proof of actual damages.
The replevin writ was duly issued and executed by seizing the beer in the appellee's possession and summoning the appellee to answer the suit. By agreement of the parties, neither entered into bond for the beer and it remained, and still remains, in the possession of the officer. The appellee entered a plea of not guilty to the action.
On the trial of the case, the appellant testified that she was the owner of the beer; that she had bought it in Columbus, Mississippi; that on the night of May 11, 1955, at about 8:30 o'clock, she was transporting the beer into Lee County in a truck driven by her, and was proceeding to take the beer to her father's home, to which she had prepared to move; that she was apprehended by police officers in the City of Tupelo and arrested on a charge of speeding and driving without a driver's license; that the beer was discovered in the truck of the appellant and taken from her by the officers; that she had the beer for her personal use or consumption; that she usually drank four to five cans of beer per day. The proof showed that the 450 cases when counted in cans, comprised 10,800 cans and constituted approximately a six-year's supply for appellant at the rate of her daily consumption of five cans per day.
The appellee's proof showed the arrest of the appellant as testified by her and the seizure of the beer and the quantity thereof. The appellee further introduced testimony, over the objection of the appellant, showing prior raids by officers on the home of the appellant and her husband and the finding there of beer in large quantities on prior occasions, and showing sales of beer at the home of appellant and her husband on prior occasions without identifying such sales as having been made by appellant, and showing the prior issuance to appellant's husband of a retail dealer's license to sell whiskey, beer and wine. It was stipulated by the parties that beer had been excluded from Lee County as the result of an election lawfully held for such purpose.
(Hn 1) Under the statutes as written at the time of the seizure of the beer and the institution of this action, it was not unlawful to possess beer having an alcoholic content of not more than four percentum by weight in a county where beer had been excluded by an election as in Lee County, and neither was it unlawful to transport beer into such county for purposes of personal use or personal consumption. Secs. 10207 and 10208, Code of 1942; Hoyle v. State, 216 Miss. 330, 62 So.2d 380.
The issue involved was whether the appellant was transporting the beer for her personal use or consumption and therefore lawfully, or whether she was transporting it for purposes other than for personal use or consumption and therefore unlawfully, thus rendering it subject to seizure by the officer.
At the conclusion of the evidence, the appellant moved the court to exclude the evidence for the appellee and direct a verdict for the appellant. This motion was overruled and the case was submitted to the jury, resulting in a verdict for the appellee, and judgment was entered accordingly.
The appellant complains that the trial court erred in not excluding as incompetent the evidence of prior raids at the home of appellant and her husband, and the finding there of beer in large quantities on prior occasions, and the evidence of prior sales of beer not shown to have been made by the appellant, and the evidence of the issuance to appellant's husband of a retail dealer's license, and further erred in not sustaining the appellant's motion to direct a verdict for the appellant.
(Hn 2) We think that the evidence complained of as being incompetent was inadmissible and should have been excluded. Lowe v. State, 127 Miss. 340, 90 So. 78. Nevertheless, we are of the opinion that the trial court committed no error in refusing to direct a verdict for the appellant. The burden of proof was upon the appellant to establish her right to the immediate possession of the beer by a preponderance of the credible evidence. In order to meet this burden, the appellant relied solely upon her own uncorroborated testimony that she bought the beer and was the owner thereof; that it was of the value of $2360.00; that in quantity it consisted of 450 cases, or 10,800 cans, in assorted brands of Blue Ribbon, Schlitz and Falstaff; that she customarily drank from four to five cans a day, and that she was transporting it for her personal use and consumption. Thus her testimony shows that at the rate of her daily consumption, she had a supply of beer sufficient to last her approximately six years in the future. The testimony that she was transporting the beer for purposes of her personal use and consumption is so wholly unreasonable as to be utterly incredible. It was the duty of the jury to consider the whole of the evidence and all reasonable inferences to be deduced therefrom, and when so considered, the jury was wholly justified in rejecting this testimony as untrue. This the jury manifestly did, as indicated by its verdict. We can not conceive that the jury could have logically rendered any other verdict, even excluding from consideration the claimed incompetent evidence, unless the jury had concluded, which is highly improbable, that the appellant was an extremely provident person who was anticipating a tremendous drouth in the beer market and was protecting her inordinate thirst for the invigorating beverage for six years to come.
We think that the verdict of the jury was not affected by the claimed incompetent evidence, and that, therefore, the admission of such evidence constitutes no reversible error.
In view of the finding of the jury, which we think was fully warranted, we are of the opinion that the appellant's evidence was insufficient to meet the burden of proof resting upon her, and that the judgment of the court below should be and it is affirmed.
Affirmed.
Roberds, P.J., and Hall, Lee and Kyle, JJ., concur.