Opinion
No. 36483.
November 10, 1947.
1. INTOXICATING LIQUORS.
Evidence that 1 1/2 pints of whisky and one pint of gin were found in cabinet in defendant's cafe, but that a number of persons other than defendant had access to cabinet, and that they actually used cabinet in discharge of their duties and for personal convenience, was insufficient to sustain conviction of unlawful possession of intoxicating liquor (Code 1942, sec. 2613).
2. CRIMINAL LAW. Intoxicating liquors.
In prosecution for unlawful possession of intoxicating liquor, burden is on State to establish defendant's guilt as required by law, and defendant is presumed to be innocent until that is done (Code 1942, sec. 2613).
APPEAL from the circuit court of Pearl county. HON. J.C. SHIVERS, J.
Grayson B. Keaton, of Picayune, for appellant.
Before a search warrant can be lawfully issued, there must be a valid affidavit for the issuance thereof. The affidavit in this case was made before Ray M. Stewart who signed both as police justice and as mayor. As a matter of fact, Ray M. Stewart has never been a mayor of the City of Picayune. Objection was made that the proof did not show the creation of a city court under the laws of Mississippi and that there is no ordinance of the City of Picayune creating the office of police justice and that consequently the police justice had no authority to issue a search warrant.
The only way the city could prove the creation of the office of police justice was by the minutes of the City of Picayune. The trial court did not agree with that position but permitted counsel for the City of Picayune to prove its existence by oral evidence. In view of the specific objection made at the trial upon this point, then the burden was upon the city to prove that such a court had been legally created. Under Sections 3645 and 3646 of the Code of 1942 it was necessary for the city to establish by competent proof in this case the creation of such courts and particularly the election of a police justice where, as in this case, the reputed police justice is not the mayor of the city. A board of aldermen can speak only by its minutes and it had no minutes in this respect and consequently Ray M. Stewart had no authority to serve as police justice of the City of Picayune.
The circuit court of Pearl River County had no jurisdiction of this cause for the reason that no properly certified transcript of the proceedings of the police court had been prepared and transmitted to the circuit clerk of the county. The police justice did not certify this transcript, but instead the transcript was certified by the city clerk of Picayune.
See Fassman v. Town of Centreville, 184 Miss. 520, 186 So. 641; City of Jackson v. Howard, 135 Miss. 102, 99 So. 497; Porter v. State, 135 Miss. 789, 100 So. 377; Code of 1942, Secs. 1200, 1205, 3649.
It has been uniformly held by this Court that the circuit court has no jurisdiction of an appeal from a justice of the peace court or from a police justice court unless there is filed in the circuit court a properly certified transcript of the record in the inferior court.
Dorsey v. State, 141 Miss. 600, 106 So. 827; McLain v. State, 145 Miss. 210, 110 So. 441; Galloway v. State, 144 Miss. 696, 110 So. 665; Jeffries v. State, 146 Miss. 467, 111 So. 576.
The evidence failed to show that the liquor in question was in the possession of the appellant. The old rule that criminal intent must accompany a crime is still the law, even as to liquors, so far as we have been able to ascertain. There must be actual or constructive intent to do the thing which constitutes the crime; otherwise there is no criminal act. If it can be said that the liquor in this case was in the possession of the defendant merely because it was in his shop, when he did not know it, still such possession, not being conscious, was not actual and intentional possession, as contemplated by the statute.
City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785.
Tate Thigpen, of Picayune, for appellee.
The proof shows that Ray M. Stewart, who signed the affidavit for the search warrant, the search warrant, and the judgment in the police court, was, in fact, acting as police justice of the City of Picayune, and that he was at least a de facto officer. There is no necessity for proving the fact that he was also a de jure officer.
Boatwright v. State, 143 Miss. 676, 109 So. 710; Conwill v. State, 147 Miss. 118, 112 So. 868; Rosetto v. City of Bay St. Louis, 97 Miss. 409, 52 So. 785; Upchurch v. City of Oxford, 196 Miss. 339, 17 So.2d 204; Norton v. Shelby County, 118 U.S. 425, 30 L.Ed. 178; Code of 1942, Sec. 4045.
The city clerk, who is, by statute, the clerk of the municipal police court, has been delegated the minsterial functions and duties ordinarily delegated to the clerk of any trial court, and has the authority to certify to transcripts of records, upon appeals from the police court.
Code of 1942, Sec. 3649.
In making out a case against a defendant charged with unlawful possession of liquor, in violation of the laws of the State of Mississippi, where the liquor is found on the premises of the defendant, and the defendant claims that the liquor is in his possession without his knowledge, a question of fact arises to be decided by a jury, as to whether or not he knowingly or consciously possessed or controlled the liquor, as it may be reasonably presumed and inferred as a fact that he knows of its presence. Thus, where the jury decides, as a matter of fact, that the liquor was actually and knowingly in the possession of the defendant, apparently disbelieving the denials of the defendant, the mere fact that it might possibly have belonged to some one else can be of no benefit to the defendant.
City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785.
Sellers was convicted of the unlawful possession of intoxicating liquor under Section 2613, Code 1942, and appeals.
He urges, among other contentions, that the evidence is insufficient to support his conviction. Since we have concluded he is correct in that contention we dicuss no other.
The question arises under these circumstances: On, and for some two years prior to April 9, 1946, Sellers operated in Picayune, Mississippi, a cafe. An eating counter extended east and west across a room. The west end of the counter joined the west wall of the building. There was a door in the west wall near and just north of the west end of that counter, through which door the public passed on entering the cafe. Upon this counter, and some two or three feet from the door, a cash register was kept and operated. Immediately behind this counter to the south and parallel with the counter, extending across the room, was an aisle or passageway some three or four feet wide. Immediately south of this way and extending across the room, except a door at the east thereof, was a solid wall, with shelving thereon, where canned goods, groceries, etc., were stacked for use in serving the public with food. Also, a coffee urn sat upon a shelf or stand near this wall. The aisle-way was used by the employees in getting the groceries from the shelves and pouring the coffee from the urn to serve the public and also to operate the cash register. At the end of this passageway to the west, and some two feet from the register, was what the witnesses termed a cabinet or filing case or locker.
About 6:30 in the evening of April 9, 1946, the officers made a search of this cafe, and found in that cabinet one and one-half pints of whiskey and one pint of gin. They arrested Sellers and he was convicted of the unlawful possession thereof.
This cafe remained open day and night. There were a number of employees. They worked in three shifts of eight hours each. Sellers and his wife were there only part of the time. In their absence, the cafe was operated entirely by the employees, one of whom would act as cashier and operate the cash register. Such operator sat upon a stool, thereby enabling her to obtain some rest, and, therefore, the waitresses changed about in such operation. In the cabinet was kept change, time books, ration books, music records and reports. The waitresses also kept their purses in this cabinet while they were on duty. The cabinet was never locked and all of the employees had free access thereto. They frequently went into it to get their personal belongings. The operator of the register would get from this cabinet the needed change in such operation.
Appellant and his wife had been away the entire day of April 9th, purchasing groceries and supplies for the cafe, and had returned only about an hour before the search was made. Appellant, upon being handed a copy of the search warrant, told the officers they were welcome to search the premises. He and Mrs. Sellers testified unequivocally they did not own the liquor and did not know it was in the cabinet. Was this sufficient to convict Sellers of the crime?
This court has gone a long way in upholding convictions of unlawful possession of intoxicating liquor, but we have never gone to the extent of upholding this conviction, and we think we have gone far enough. The applicable cases, pro and con, are collected in 9 West's Miss. Digest, Intoxicating Liquors, Key No. 236 (6 1/2).
In this case, numbers of people had access to the cabinet other than appellant, and it is affirmatively shown they did actually go in it daily and nightly, both in the discharge of their duties and for personal convenience. Into and through this room the public constantly came and passed. It is not shown that the cabinet had a lock, or, if so, who had keys thereto, but, on the contrary, it is shown that it was never locked and was open to all employees. Appellant and his wife are not impeached as witnesses. To hold appellant liable under the circumstances here would establish a precedent for the conviction of any operator of a store, office, or other public place of business in which a bottle of whiskey may be found, although it might have been placed therein by some other person without the knowledge or consent of the operator. Appellant may be guilty but the burden is upon the State to establish his guilt under the rules, and in the manner required by law, and he is presumed to be innocent until that is done.
Reversed and appellant discharged.