Walters v. State , 127 Miss. 324 ( 1921 )

Cook, J.,

delivered the opinion of the court.

The appellant, Lloyd Walters, ivas convicted of the unlawful sale of intoxicating liquors, and appeals to this court.

Appellant was tried in his absence, and the grounds principally relied upon for a reversal are: First, the refusal of the court to grant his application for a continuance; and, second, the overruling of his motion for a new trial.

It appears from the record that this case was first set for trial on April 12, 1921, and that defendant was present in court on that date. The case was not reached on that date, and was reset for April 16th. On the morning of the 16th of April, appellant was not present in court, and when his case ivas called for trial, appellant’s attorneys filed a motion signed by themselves, but not sworn to, seeking á continuance of the case for the term or a postponement until a later day. The grounds of the motion were, in substance, that the defendant was not present, and could not be present, on that date for the reason that he lived about twenty miles from the courthouse; that his only means of travel was by automobile over the public roads; that during the morning and the night preceding there had been an unusual and almost unprecedented rainfall; that as a consequence several streams between the courthouse and appellant’s home were overflowed and impassable; that appellant was water-bound, and was absent for that reason only. This motion was overruled, and appellant was tried in his absence and convicted. On a later day of the term appellant filed a motion, sworn to by himself, to set aside the verdict and grant him a new trial. This motion set up substantially the same facts as the motion for a continuance, and in addition alleged that appellant and his witnesses attempted to reach the courthouse in time for his trial, and that they were on the road practically all day in an effort to reach the courthouse. This motion for a new trial was likewise overruled.

It appears that the notice to the stenographer to transcribe and file the notes of the evidence offered was not given within the time required by law, and as a consequence this record does not contain the stenographer’s notes. In the absence of the stenographer’s notes we must presume that the facts in evidence before the court justified its action in overruling these motions. It is contended by appellant, however, that the record does not show that the state controverted the facts alleged in the motions. The state is not required to traverse either of these motions in writing, and, in the absence of the stenographer’s notes, the presumption in favor of the correctness of the action of the court must prevail.

Upon the merits of these two motions counsel for appellant propounds to fis three questions, as follows:

- “Can the appellant control the rains? Could he, like Moses, command the waters to separate and walk through on dry land? Could he, like Joshua, command the sun to stand still and make it stand?”

We do not think it possible that appellant could make the sun shine, but, from an examination of many records which are finding their way into our consultation rooms, we think it is altogether probable that he can make the “moonshine.”

Appellant also assigns as error an instruction granted the state, which reads as follows:

“The court instructs the jury for the state that if they believe from the testimony beyond a reasonable doubt that the defendant, Lloyd Walters, received from one Earnest White and Paul McLemore, either or both of them, the sum of five dollars, and that he, the said Lloyd Walters, then and there agreed to go and purchase intoxicating liquor with said money, and that he, the said Lloyd Walters, did take said money and purchase and return with the intoxicating liquor as testified to, then he (Lloyd Walters) is guilty of selling intoxicating liquor as charged in the indictment, even though you may believe that he (Lloyd Walters) returned afterward a part of the five dollars to the witness Earnest White.”

This instruction correctly stated the law. Under the law as it now exists the sale of the liquor in question was necessarily unlawful, and, this being true, this case is controlled by the case of Horton v. State, 105 Miss. 333, 62 So. 360, where it was held that where the accused and a third person pooled their money for the purpose of buying whisky, and the accused took the money and bought whisky, which was consumed shortly afterwards by both, the accused was guilty of the unlawful sale of the liquor, as all who aid in the commission of a misdemeanor are principals. See, also, Wiley v. State, 74 Miss. 727, 21 So. 797, and Simmons v. State, 102 Miss. 605, 59 So. 849.

Affirmed.