Mississippi Supreme Court, 1939

Ross v. State

Mississippi Supreme Court · Decided June 5, 1939 · McGehee

189 So. 526; 185 Miss. 378; 1939 Miss. LEXIS 190 (Southern Reporter)

Counsel

Hilton, Berry Kendall, of Jackson, for appellant. The verdict of the jury is contrary to the overwhelming weight of the law and evidence in this case. The court erred in refusing to grant the peremptory instruction requested by the appellant at the close of all the evidence. Williams v. State, 98 So. 107; Pickle v. State, 151 Miss. 549 , 118 So. 625 ; King v. State, 147 Miss. 31 , 113 So. 173 ; Gillespie v. State, 96 Miss. 856 , 51 So. 811; Harris v. State, 153 Miss. 1 , 120 So. 206 ; Talbert v. State, 23 Ala. App. 559 , 129 So. 323 ; Bush v. State, 175 So. 315 , 27 Ala. App. 482 ; Bivens v. State, 171 So. 756 , 27 Ala. App. 304 ; 33 C.J. 777, sec. 531. The court erred in granting the following instruction requested by the appellee: "The court instructs the jury for the state that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant did wilfully and unlawfully have in his possession intoxicating liquor, whiskey, as testified about, then it is your sworn duty to find the defendant guilty." Pickle v. State, 151 Miss. 549 , 118 So. 625 ; Hogan v. State, 127 Miss. 407 , 90 So. 99; Algheri v. State, 25 Miss. 584 ; Harris v. State, 153 Miss. 1 , 120 So. 206 ; Milson v. State, 153 Miss. 579 , 120 So. 570 ; Sorrells v. State, 130 Miss. 300 , 94 So. 209; Nalls v. State, 128 Miss. 277 , 90 So. 892; Simmons v. State, 106 Miss. 732 , 64 So. 721. The witness, Homer Ross, plead guilty to possessing it and testified that his father had no connection with the whiskey and knew nothing of its presence upon the premises. Note further that all the whiskey which was found inside the home of the appellant was found in the room of the witness, Homer Ross. What evidence is there then to support a conclusion, or even an inference, that the whiskey belonged to the appellant? Can it be said even that there is room left for a suspicion that it was the appellant's whiskey? A thundering "no!" is the only answer these questions can evoke. Ever since the case of Algheri v. State, 25 Miss. 584 , the law in Mississippi has been that in order to sustain a conviction based upon circumstantial evidence, the jury must not only believe that the defendant is guilty beyond all reasonable doubt, but must further believe that the defendant is guilty beyond every reasonable theory and hypothesis of a doubt. Pickle v. State, 151 Miss. 549 , 118 So. 625 . W.D. Conn, Jr., Assistant Attorney-General, for the state. The defendants testified that the liquor belonged to the boy and that the father did not have it in his possession and knew nothing about it being on his premises. In view of the testimony of the officer, that appellant admitted to him at the time that the liquor was his, there was evidence sufficient to take the case to the jury, and the trial court did not improperly refuse the requested peremptory instruction. It is said that the court erred in giving the instruction which authorized the jury to convict, because it did not require that degree of proof necessary in a circumstantial evidence case. We disagree with counsel as to whether or not this case depends on circumstantial evidence. There was direct evidence with reference to the finding of the whiskey, together with direct evidence that appellant admitted that it was his. The circumstantial evidence rule does not apply under such circumstances.

Opinion of the Court

*380 McGehee, J.,

delivered the opinion of the court.

Tbe appellant, Barney Ross, and bis son, Homer Ross, were jointly indicted for tbe unlawful possession of intoxicating liquor. Homer Ross entered a plea of guilty, and then claimed tbat tbe whiskey which was found on tbe premises of bis father, Barney Ross, pursuant to tbe execution of a lawful search warrant, bad been carried there by bim on tbe night before tbe search. He claimed tbat he found all of tbe whiskey at about 11 o’clock P. M. at a distance of approximately fifteen feet from highway No. 49’ while walking along tbe highway near tbe Town of D’Lo.

It is contended by tbe appellant tbat tbe mere fact tbat tbe whiskey was found on his premises on tbe next morning was insufficient to establish tbe charge against bim. Tbe proof further discloses, however, tbat when tbe officers arrested both tbe appellant and Homer Ross and asked tbe appellant whether “tbat was Fred Grant-ham’s liquor,” be said, “No, it is my liquor, and if I ever get out of this I never intend to sell any more liquor.” This statement made by tbe appellant in response to tbe *381 question of the sheriff, or to a question asked by the deputy, coupled with the circumstance that the whiskey was found on the premises of the appellant constituted a sufficient and abundant reason for submitting the case to the jury. Neither was the jury hound to accept as true the claim of the son that he alone was guilty of the crime; and especially in view of his story as to how he came into possession of the whiskey in question.

Affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.