Minter v. City of Jackson

Mayes, C. J.,

delivered the opinion of the court. .

Appellant was prosecuted by the city of Jackson for keeping vinous, spirituous, malt, and intoxicating liquors for sale, in violation of an ordinance framed under chapter 115 of the acts of 1908 amending section 1749 of the Code of 1906. The proof consists in the fact that appellant is shown to have received a cask containing seventy-two quarts of beer a day or two prior to the time a “raid” was made on her house by the police authorities of the city of Jackson. When the police authorities raided appellant’s house, they found about thirty-six quarts of beer, and the other thirty-six empty quart bottles. It seems that the police also found a few whisky bottles, a corkscrew, a waiter, and some tumblers containing the leavings of fresh beer. Appellant did not take the stand, but a witness testified that four girls, friends of appellant, drank the thirty-six bottles the night before. It appears from the testimony that only a part of the beer belonged to Jennie Minter; the other belonging to another woman who lived in the house with her. A bottle with a little whisky in it was found. This is all the evidence in reference to Jennie Minter keeping this whisky in violation of the law.

As this court has repeatedly said, there is no law which prohibits a person from keeping whisky, no matter what the quantity, unless it is kept for some unlawful purpose, and when the above charge is made the proof must not only show that the person charged had intoxicating liquors, but that the liquor was kept for an unlawful purpose. The testimony in this case-does no more than create a suspicion that the beer found was kept for an unlawful purpose, if it can be said to do that. That a person ordered a cask of beer raises no presumption that he ordered it for an unlawful purpose. When a house is searched, and it is discovered that the beer has been put to the use which it might be supposed the party ordering it intended it should be, and for which it is made, and when it additionally appears that the beer had been opened with a corkscrew and drunk from a glass, this is not sufficient to warrant the presumption that it was kept for an unlawful purpose. When section 1747 of the Code of 1906, as amended by acts of 1908, p. 117, provides that the fact that any person has in .possession appliances adapted to the retailing of liquor shall be presumptive evidence that the person having the appliances is engaged in keeping intoxicating liquors for sale, or for the purpose of giving same away in violation of law, it does not and cannot mean that when a home is invaded and searched, and glasses, and a waiter, and a corkscrew, and intoxicating liquors are found, that these things alone shall warrant the conviction of any person under this statute. The glasses, waiter, corkscrew, and sometimes intoxicating liquors, are found in many innocent homes. In fact, a home cannot be properly furnished without glasses and waiters. If these things be found in a storehouse, or in and about a person’s place of business, this fact may be a stronger circumstance of guilt than when found in a home; but in all cases these things alone cannot be said to be such appliances, within the meaning of the statute, as to warrant a conviction in themselves. It may be difficult to prove the crime charged in this affidavit, and it should be. The legislature has not said that it shall be unlawful to keep whisky for any purpose, and, when a person is found with intoxicating liquors at his home, this fact should not, in itself, warrant the presumption that such person has liquors for an unlawful purpose, unless other facts are sufficient to justify a conclusion that the having of the liquors is for some unlawful purpose. This case falls within the principles declared by the-case of McComb City v. Hill, 56 So. 346, and Stansberry v. State, 53 So. 783.

The case is reversed and remanded.