Mississippi Supreme Court, 1929

Clark v. State

Mississippi Supreme Court · Decided June 3, 1929 · Ethridge

122 So. 534; 154 Miss. 457; 1929 Miss. LEXIS 150 (Southern Reporter)

Counsel

B.N. Knox, of New Albany, for appellant. Where the defendant was in a car with two other parties and the officers saw one of the parties, other than the defendant break a bottle that contained whisky, and there is no proof that the defendant ever had the whisky in his possession, but that he was merely "around where there was whisky," this was not a violation of the law. Harness v. State, 130 Miss. 673 , 95 So. 64; Brazeale v. State, 133 Miss. 171 , 97 So. 525; Anderson v. State, 132 Miss. 147 , 96 So. 163; Ricks v. State, 146 Miss. 659 , 111 So. 752 ; Medlin v. State, 108 So. 177 ; Powers v. State, 124 Miss. 425 . James W. Cassedy, Jr., Assistant Attorney-General, for the state. In an indictment under sec. 2280 of Hemingway's 1927 Code, providing that it is unlawful for any person to have, control, or possess intoxicating liquor, it is not necessary that exclusive possession be proved, but if the defendant was in possession, with right of control, then this is sufficient to uphold a conviction. Holly v. State, 144 Miss. 726 .

Opinion of the Court

Ethridge, P. J.,

delivered the opinion of the court.

Alvie Clark was convicted of the possession of intoxicating’ liquors, and fined one hundred and fifty dollars, from which conviction he appeals here.

It appears that the appellant, in company with Arch Thomas and Roy Ellis, was in a Ford runabout on a certain highway in Tippah county, Mississippi. Ellis had gotten out of the car and secured a bottle of whisky, and, seeing the officers, handed the whisky to Thomas, and told him to break it. The appellant was driving the car, and, when they saw the officers, he speeded the car up attempting to escape, the three persons being together in the car. The officers pursued and overtook them and secured the bottle, but did not see the appellant with the bottle. The prosecution was begun in the justice of the peace court, and in that court one of the defendants stated *459 that they were £<in cahoots” in the liquor. So far as we know, the word has not been judicially defined, but in colloquial use we understand it to mean jointly interested in the property, or common participants in the enterprise.

We think the fact that the three were together under the circumstances disclosed by the evidence, and that they had the whisky and, when they saw the officers, the appellant tried to get them out of reach of the officers so as to prevent an arrest or search, made him a participant in the crime. In misdemeanors, all persons aiding, abetting, or assisting in crime are principals. Applying this principle to the present case, the conviction must be sustained.

Affirmed.

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