King v. State , 137 Miss. 751 ( 1925 )

McG-owen, J.,

delivered the opinion of the court.

The above-named appellants were convicted of having more than one quart of intoxicating liquors in their possession, and each of them was by the circuit court sentenced to pay a fine of five hundred dollars and each be confined in the county jail for a period of six months, and pay all costs of court, and stand committed until paid.

These two defendants were arrested by the sheriff, A. J. McNair, and deputy, and Mr. Bradley, a constable, under these circumstances: The sheriff and his two assistants concealed themselves in T. A. Robinson’s residence on Fourth street in the city of Hattiesburg, Forrest county, Miss. Poodle White accompanied by Red King, about three o ’clock in the afternoon, drove a Ford car to a point in the street opposite the house of Robinson. Robinson left the house in which the officers were concealed, reached the automobile standing in the street in which Poodle White and Red King were seated, and after Robinson reached the car there was something occurred between the two defendants and Robinson, and six quarts of whisky appeared on the running board of' the car, one quart drojiping to the ground. The bottle was broken, and the sheriff and McNair say that they both smelled and saw that it was whisky before any arrest was made, and said they knew it was whisky which was dropped and had been broken, which came from the defendant’s car. The whisky that was dropped from the car upon the running board was in a sack. There were six quarts. And when McNair started to cut the sack open with a knife, the defendant, King, remarked, “Not necessary to cut it open; six quarts of damn good whisky in there.”

Upon searching King after he was arrested, and after the above circumstances, they found upon his person a quart of whisky and a sample bottle of whisky, and a forty-five-calibre revolver. Likewise White was armed with a revolver.

Bradley states that when the transaction was taking place between Robinson and the two defendants, that he, McNair, and the sheriff rushed out of the house with their guns presented, and that White and King threw their hands up, saying: “They got us.”

Upon, this contradiction in the state’s proof, the defendants first made an affidavit claiming the whisky and asking that the court restore it to them, which was denied by the court. Thereupon they made a motion for a severance, each claiming that it would prejudice his case to be tried with the other, which the. court overruled, and both of which rulings are approved by this court on this record. Upon the motion to have the whisky turned over to them hy the court, both King and White claimed each their respective whisky, and swore it was theirs.

Upon the trial of the cause, defendants did not offer any testimony, but asked for a peremptory instruction upon the ground that the sheriff and McNair were incompetent as witnesses, because they were under arrest at the time the sheriff searched their persons and took the whisky in custody. The court overruled this motion, and instructed the jury to the effect that “the jury must believe from the evidence beyond a reasonable doubt and to a moral certainty that the officers who made the arrest and seized the whisky, and knew it to be whisky before the arrest was made.” The witnesses McNair and Norsworthy swore to the affirmative of this proposition, and their statements were contradicted by Bradley. The court submitted this issue of fact to the jury.

We think the jury correctly found the facts in this case, and that the defendants were astute to have themselves considered under arrest before the sheriff of the county made any demonstration towards tailing’ them into custody.

The defendants being armed with two good pistols and more than seven quarts of “damn good whisky,” we think this is a typical case of bootlegging and the methods employed by those who seek to ply this nefarious trade; and while this court will undertake to see that each defendant has a fair and impartial trial under the laws and constitutions of our country, we will not be astute to erect a shelter under which defendants, such as these, may hide themselves from the wrath of an outraged law. They had whiskey; they -were armed; they were doubtless delivering the whisky to Robinson;'they were profane, and they have sworn, according to this record, that they owned this whisky without any excuse, mitigation or palliation.

Counsel for appellants relies upon the cases of Butler v. State, and Robinson v. State, 101 So. pages 193 and 706, respectively. These cases have no application here, because, according to the sheriff’s statement, no arrest was made until after he had seen the whisky and smelled, and saw the defendants in the act of committing a crime; and if his statement was true, it was his duty to arrest the defendant's without a warrant.

We find no reversible error in this record, except as to the sentence.

The learned circuit judge sentenced each of these defendants to pay a fine of five hundred dollars and serve six months each in jail, and suspended as to each two hundred and fifty dollars of the fine, and suspended as to each three months of the jail sentence. The laws of 1922, chapter 210, section 1, relative to the sentence of one convicted of having more than one quart of, intoxicating liquors in his possession, is as follows:

“Any person convicted of having more than one quart of whisky or any other intoxicating drink in their possession shall be sentenced to serve not less than thirty nor more than ninety days in jail in addition to the money fine prescribed by law. ’ ’

Section 2 applies to the sentence after a conviction of a sale of whisky, and sentence 3 is as follows:

“No justice of the peace or judge shall have authority to suspend said jail sentence.”

We think the learned judge erred in that he imposed more than three months jail sentence on each of the defendants; and we think that he also erred in his order suspending as to each one-half the sentence. We there- ■ fore remand this cause to the circuit court of Forrest county, the defendants to be held under their bonds to appear there at the next term of court for proper sentence. Otherwise the cause is affirmed.

Remanded for proper sentence; otherwise affirmed.