Gann v. State

Counsel

James McClure, Jr., for appellant. The only instruction given the state is erroneous. This instruction is in direct conflict with the instruction given the defendant which told the jury that before they could convict him, they must believe that he had more than a quart of whiskey in his possession at the time. Now which of the two instructions was the jury to follow? The district attorney said, "There is the teaspoonful of whiskey which is still in the jug," and the court tells the jury that if they believe that the defendant had it in his possession, a verdict of guilty as charged must be returned. See Robinson v. State, (Miss.) 108 So. 903. W.A. Scott, Jr., Special Agent, for the state. The instruction given for the state was not erroneous. The appellant contends that this instruction authorized the jury to convict the defendant even though they believed that he had in his possession less than a quart of intoxicating liquor. We cannot accept this view of the instruction. The evidence shows that when the defendant was arrested the officer went to the spot where the liquor had been concealed in the tile and found that the jug was empty with the exception of about three ounces. It is oftentimes the case that the jury is under the impression that they cannot convict unless the evidence is brought into court. This instruction merely tells them that it was immaterial that the officers found only a few ounces in the jug at the time of the arrest, because the testimony showed that shortly prior to that time the jug had contained anywhere from one quart to a half a gallon of liquor. All of the instructions, both for the state and the defendant, when considered together show that the state was merely telling the jury that the amount of liquor found in the jug at the time of the arrest was immaterial; but they must believe from the evidence that the defendant has at some time during this transaction in his possession more than one quart.