Marsalis v. State , 191 Miss. 49 ( 1941 )

DISSENTING OPINION. The state's witness Barlow bought from the appellant and paid him therefor the whisky which was the basis of the indictment and conviction in this case. He was employed by the sheriff of the county to make the purchase and furnished by that officer with the money with which to pay for the whisky. Under Section 1990 of the Code of 1930 Barlow was guilty of a crime. That statute is in this language: "If any person shall act as agent or assistant of either the seller or purchaser, in effecting the sale of any liquor, bitters or drinks, the sale of which is forbidden under this chapter, he shall be guilty of a misdemeanor and on conviction shall be fined not less than one hundred dollars, or be imprisoned in the county jail not less than thirty days, or both."

The evidence showed without conflict that the whisky was bought by Barlow for the sheriff and not for himself, and delivered to the sheriff, and was paid for out of funds furnished him by the sheriff. He was not a deputy sheriff or other officer authorized to serve process and make arrests.

Appellant requested instructions that under the law if any person acts as agent or assistant of either the seller or the purchaser in effecting a sale of intoxicating liquor, the sale of which is forbidden by law, he is guilty of a misdemeanor, and his testimony should be weighed with care and caution. The court refused these instructions and that action of the court is assigned and argued as reversible error. My opinion is it was. The statute simply made the go between of the seller and purchaser an accomplice — just as much a criminal as the seller. The sheriff himself was without authority of law to purchase the whisky. Although not directly in point on its facts, Brantley v. State, 107 Miss. 466, 65 So. 512, is in point on principle.

It seems useless to cite authorities to the effect that the testimony of an accomplice is to be viewed with care and caution.