Parham v. State , 127 Miss. 8 ( 1921 )

: " Síkes, J.,

delivered the opinion 6f the court. ’

!■ .Andy; Parham was- indicted, dried and- convicted for the unlawful sale of intoxicating liquor, from-¡which judgment of-conviction this appeal is prosecuted. ' ,- e w.¡. . w There was only one witness who testified in the case .and the ¡material part of-his testimony: is as follows: That-he and two other young men went out to the-defendant’s place to try,to get, some “liquor,” meaning-by that whiskey ythát he. asked the defendant if he had “anything;” and that-defendant first answered that-he did not. --Witness then-informed the defendant-that they were» going-to have a-dance and “would like to have“something’.if he-had •‘anything;?-” that he did not tell the defendant what they were after; that he understood the-defendant knew what-they wanted ; that he argued with the defendant fifteen or twenty minutes and that defendant said “he had a little ‘something’; and .he got it for me that- he got a half-gallon fruit; jar “full of something” out of his .smokehouse, and that ,it was white>in color, for which they paid the-defendant ten. dollars ;that :previous -to that time he had gotten “something” from the defendant, but did not know whether it was» whiskey- or. not; that they -finally gave this “something”, to some- negro musicians at a dance; that no complaint was■ made by -the -musicians about this -“something.”' - This; constitutes»the examination in chief: On eross-exam-ination the ¡witness •stated that he did -not know■ what»this “something”» was; that he did not know whether-it -was»whiskey or -whether ■it-,was intoxicating; : j- - J!

The court declined to grant a peremptory instruction ,in favor of the defendant. ¡i.:i.»w

There is no testimony in this - case upon which a jury could believe beyond a reasonable doubt that the contents of, tile balf-gallon fruit jar was intoxicating liquor. While w,e.might strongly suspect that the object and purpose o.f the visit of the young' gentlemen to the defendant was to purchase intoxicating liquor, the testimony is absolutely silent as to the contents of the fruit jar, except that it was white in color. This witness made no examination, of it, but merely assumed that it was the “something” they wanted, for tbe musicians. Before the defendant could bave.been convicted in this case, however, the Testimony must have, further shown that this “something” was intoxicating, liquor.,, and this the testimony fails to show.

■ The.court erred in not granting the peremptory instruction in favor of the defendant. r ■

..Reversed, and judgment discharging the defendant em teredhere. • ,.

Reversed,,