Mississippi Supreme Court, 1939

McLemore v. State

Mississippi Supreme Court · Decided June 5, 1939 · Ethridge

189 So. 525; 185 Miss. 374; 1939 Miss. LEXIS 189 (Southern Reporter)

Counsel

Currie Currie, of Hattiesburg, for appellant. The instruction granted the state that, "The court charges the jury that more than one person can be guilty of possessing a whiskey still at the same time and place," clearly assumed, as a fact, that the appellant had possession of the whiskey still in question. That instruction was clear error under the settled law of this state. If the courts of the country are allowed to assume the facts for juries and if such practice is to be upheld, the constitutional right of trial by jury is gone with the wind. An instruction assuming a material fact in controversy is erroneous, and is properly refused. Shelton v. Hamilton, 23 Miss. 496 , 57 Am. Dec. 149; French v. Sale, 63 Miss. 386 ; McKee v. Munn, 5 So. 616; Beall v. Bullock, 11 So. 720; Godfrey v. Meridian Ry. Light Co., 58 So. 534, 101 Miss. 565 . The objection to the instruction is not that more than one person cannot be guilty of the possession of a whiskey still at the same time and place, as a matter of law, but the objection is that the instruction peremptorily charged the jury, in legal effect, that as a matter of fact both LeRoy McLemore, the appellant, and Amos McLemore were both guilty of the possession of a whiskey still at the same time and place. This instruction was tantamount to a peremptory instruction to the jury to find the appellant guilty. Nothing less than that can be made of it. W.D. Conn, Jr., Assistant Attorney-General, for the state. This instruction does not, as we see it, charge peremptorily that a whiskey still was in the possession of appellant, or anyone else. The apparent effect of this instruction is to tell the jury that the possession of a still does not have to be exclusive, but may be in the joint possession of two or more. The evidence in this case showed that the still was in the possession of both of the indictees and the jury was entitled to know that both could be convicted of such possession, where the still was shown to be in the possession of both. The instruction lays down the proposition involving accomplices where more than one person can be guilty of the same offense at the same time. We submit that the instruction does not charge peremptorily that the appellant was in the possession of the still in question and that the court committed no error in granting it.

Opinion of the Court

Ethridge, P. J.,

delivered the opinion of the court.

LeRoy McLemore was indicted for possession of a still, tried, convicted and sentenced to one year in the state penitentiary; from which judgment this appeal is taken.

The evidence in regard to the still was procured by United States officers, who, discovering the still on certain lands, with mash ready for distillation, secreted themselves nearby. When LeRoy McLemore came upon the scene early in the morning, dipped some of the mash from the barrels, placed it in the still, and lighted the fire under the distillery, one of the officers approached and placed him under arrest. According to their evidence he made a voluntary statement, to the effect that the still belonged to him and his brother jointly, and was jointly operated by them. There was ample evidence to *377 show that the confession was voluntary, and that no promise or threat was made to secure it.

The still was located upon land formerly owned by the appellant’s father, who had died, and which his mother occupied as her home. There was no proof to show that the appellant occupied the property as an heir, or that he was occupying it at all, any further than to operate the still upon it. The federal officers had no search warrant, but under the law of the state the widow of a homesteader is entitled to use the homestead during her lifetime; and consequently she has the right of possession to the exempt homestead, and to its proceeds, for her support, during her lifetime or the period of her widowhood. There is no showing that the property upon which the officers went belonged to the appellant, or that he had any proprietary interest in such land where the still was located, as a legal right.

Otne of the complaints made on appeal from the court below is the granting to the state the following instruction: “The Court charges the jury that more than one person can be guilty of possessing a whiskey still at the same time and place.” The complaint being that this instruction assumes as a fact that the appellant had possession of the still in question. We think there is no merit in this contention. The facts stated above, show without dispute that appellant was in possession; and the instruction simply announced the rule that two persons may jointly possess property — which, of course, is true.

The judgment of the court below is affirmed.

Affirmed.

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