Dempsey v. State

Counsel

L.H. Hopkins, for appellant. The indictment does not properly follow out the statute; and even if it did, the testimony is wholly insufficient to sustain a conviction. This case falls squarely within Stansbury v. State, 98 Miss. 436 ; McComb City v. State, . The court will observe that besides the irregular and illegal procedure by the state, there is not a word of testimony in this record that a sale, or any disposition of said "jake" was being illegally made by the defendant. Therefore, we submit, the testimony is insufficient to warrant a conviction. W.A. Scott, Special Agent, for the state. The appellant contends that the evidence is insufficient to sustain conviction for possessing Jamaica ginger with intent to sell and in support of this contention cites several cases on the subject. These cases in effect hold that the mere possession of great quantities of intoxicating liquor is insufficient to sustain conviction for possessing them with intent to sell. We think, however, that the facts in the present case are a great deal stronger than any of those cited by the appellant for the reason that a great quantity of Jamaica ginger was found on the property, a large number of empty Jamaica ginger bottles and cans were located thereon, and the appellant made strenuous efforts to destroy the evidence before it was discovered by the officers. The indictment in this case was drawn under chapter 201, Laws of 1926. The indictment alleges that appellant was keeping the Jamaica ginger for sale without having first obtained a license and the question arises whether a license is necessary where a person keeps extracts of this nature with intent to sell and has not made a specific sale. Under these circumstances we do not think a license is necessary and that it becomes necessary only when a sale is actually made or when negotiations are entered into leading up to a sale. The appellant objects to the indictment on the ground that it does not negative that the Jamaica ginger was possessed by the appellant to be sold for medicinal or household purposes or for uses in cooking, baking, and purposes incidental to the treatment of disease. This court has held on different occasions that the mere possession of Jamaica ginger compounded in accordance with the United States pharmacopoeia and having a recognized medicinal value in use is not unlawful. Young v. State, 102 So. 161, 137 Miss. 188 ; Reeves Gro. Co. v. State, 103 So. 425; Billington v. State, 105 So. 457 ; and that in order to convict for the sale of Jamaica ginger it must be shown that the preparation was sold as a beverage. King v. State, 58 Miss. 737 ; Bertrand v. State, 73 Miss. 51 , 18 So. 545; Good v. State, 87 Miss. 495 , 40 So. 12; Payne v. State, 125 Miss. 896 , 88 So. 483. We recognize the above decisions, however, as rules of substantive law, and maintain that the exceptions set forth in section 1, chapter 201, Laws of 1926, do not have to be negatived in the indictment but are matters of defense and the burden of establishing them rests upon the defendant.