
    Parham v. State.
    [89 South. 775.
    No. 21712.]
    Intoxicating Liqtjoes. Evidence held insufficient to show that liquor sold was intoxicating.
    
    Where a defendant is convicted upon the charge of the unlawful sale of intoxicating liquor, and the testimony shows that the witness went to the defendant’s place to get some whisky, that ;;!tr’ i-‘-7 ; i ■ he asked < the ■ defendanfc ;if > he: had. ■‘fánHhingi’í ;4ndr thait ,ah&Ky ;;¡the. defcudfint tpld him he-.ha.d.a;, Ii,t,tle.dso9iethifSt,” ,wiw?Ji f“s.QH(e-tlfing” thejplaced,iq .a, half-galjqpj.fsjjH ¡jai^qvhiyh /ísqia^Jijng” was white in .color a,nd for" which the witness paid the defendant I,.-'- ^ j -. 1 ! “jílí-íf «»! ten 'dollars, and witness did not know whether it wa^ whiskey ‘ ’ or" wh’éther* !ít yías íiitbxicatírík,! that ’hé! in&A^ ‘¿¿"’ekaiirinatiiSn of: the contents "óf thé frúit jar;1 herd, íKáPthis thátimO'hV iá1(fn->84^01601/ to' sustain!* a Leontictión, íand .thatuthe^-pfefemptóf^'iín- . ¡strnoti.on, requested fty • fixe, !dofinAaht > should- -ha,vc ;h&pn. granted.
    ,.,;t.APiíB4íL from circuit court-of 4ee,icount^ir¡ -.¡i t
    ;,-w.PE<m, Qs P.I,'IiONRj Judge,,; -..¡t xSiimf g:b -.lit airtli *(
    
    n> .■ Andy, Parham was. convicted of unlawful; -safe¡of- dbitosi->.catiug.■ liquors, and.he ¡appeal^*
    .¡Reversed;;,ambjudgnieiat auterededischargingothe. defendants nr-c >u b-ihihq
    
      nn<0‘Gp¡.!^-. MUehettyi@.nM./&:Qlton<m\<ktW--> 4d¿$a^>i£®fooap-pel]¡Hit. >. ¡i.-'- nc. » . "I i,- ! *•«! t r~ .<ii.-!ri(!o- s-.i¡ iff
    fill-' •:.(. >:i: '■:>! . • . <>! -0 < id / fluí'iir¡W‘)¡ «¿i! ..JfjWs $pg] ,f he. l.qw. in Mississippi (that.aTparfy .fih.argpd with crime is presumed to be.inpQqent.jUutihhe-.is prpyqn ,ggiltyMeypu,d gd Of proving Mm g.piJtyiáS.;Wqfl;thP<^tatfeft;QíJ)tfWt*P7WínPh^fnable doubt arising from the evidence or the lack of evidence ii&.to.ba givenitheidef^ndantríand ,if4toi^, lav in Mississippi that a person charged with crime ,qanpot<>!>e convicted upon mere speculation, conjecture or guess-work, ■then"this- court» must necessarily ¡reverse tMsi-eaqe' andf discharge» the defendant.; Wliilfe it is ¡true defendant is.ohácg--5 ed. ■ yiit'h -• a¡violatiom -. oh ¡ the liqiúór» flawy,an-»dffense agaihfet -'.which the hand -of- every »mah 'is»turned, ¡yetiyb cannoftfbpn-i-eéive» that even in a liquor ease, a ver-dictiwdlhbe peñÉáitted =to stand-upon-such ¡testimony asás¡ddseMed¡<by -this-decord. 1 »£t‘ is'.difficultotoi find;authority upon*-sueloa -ricofdi as-»thjs i fop ■ the»reason ¡ that; parties* are - hot convicted -¡upan » such »flimsy testimony ■and therefore: theymevep-reach the¡1 supreme court. In the case of Benoit v. Oity of Bay St. Louis, .reported in 60* So. 137y the defendant ini thakcase was’eon- - vieted of- having-¡intoxicating liquor -in his* possession) ifor sale, in violation of the city ordinance of the City of Bay St. Louis. The facts in that case were about as follows: “The city marshal, suspecting that defendant was going to bring whiskey on a train into Bay St. Louis, sent two special deputies to a station within the city limits to look out for him at that point. The defendant got off of the train at that point, and also took off two boxes, which the officers supposed contained whiskey. When defendant saw the officers, he pnt the boxes back on the train and got on the train himself and proceeded to the coal chute, also within the city limits. The marshal himself was on guard at the coal chute, and he testified that the defendant got off of the train and took off one of the cases, on which was printed in large letters ‘Atherton Whiskey.’ When defendant discovered the presence of the marshal he immediately reboarded the train with the boxes. This court in rendering its opinion, stated a very careful reading of the testimony fails to convince us that there was any sort of evidence upon which the jury’s verdict could have been based, except mere suspicion.”
    We earnestly insist that the judgment of the court below should be reversed and appellant discharged.
    
      H. Gassidy Holden, special assistant attorney-general, for the state.
    The appellant contends that he was convicted on sus picion; that it was not proved that the liquor obtained from him was either intoxicating, vinous, malt, alcoholic, or spirituous liquor; that the liquor about which the witness testified was not shown to be prohibited by law. In other words, the appellant maintains that the verdict is not supported by the evidence. It is insisted that the court should have granted a peremptory instruction for the defendant which was requested at the close of the testimony for the state.
    It is respectfully submitted that the court below committed no error in refusing to grant a peremptory instruction for the defendant. There was sufficient proof to establish guilt. It was shown that the witness Hines went to the defendant, told him that a dance was being given and that he wanted something for the orchestra, and that the defendant understoo'd what he meant by something. It was shown further that the defendant procured a one-half gallon jar of white liquor from his smokehouse for which he was paid ten dollars. Half gallon jars containing white liquid and stored in a smokehouse do not sell for ten dollars unless they contain whiskey or the equivalent thereof. It is an irresistible conclusion, from a reading of the testimony of the witness Hines that the defendant was guilty of selling intoxicating liquor commonly cálled “White Lightning.” It is true that it was not expressly stated by the witness that the liquor he obtained was intoxicating. But it is submitted that the circumstances surrounding the transaction testified to by the witness Hines provide sufficient proof that the liquor obtained from the defendant was the prohibited kind. Whether or not the defendant sold intoxicating liquor was a question for the jury and not for the court. The court acted properly in refusing to take this question away from the jury.
    It is also maintained that the court erred in admitting the testimony of the witness that he had got “something” from Andy before, but did not know whether it was liquor. It is submitted that this was competent testimony going to show that the witness was in the habit of buying liquor from the defendant. But this action of the court, if error, was harmless.
    It is further contended that the court committed no error in permitting the witness to state that the orchestra made no complaint about the liquor not being whiskey. This was legitimate evidence tending to prove that the liquor was intoxicating and therefore prohibited. If the liquor had not been intoxicating the members of the orchestra would have undoubtedly called this to the attention of the person who gave it to them.
    
      ■ Takiilg the' testimony of the witness’ fdf!tbi¿' ’state :as! a whole; ik is submitted that sufficient proof of guilt’ was nnacle and the'judgment of the lówer co'tirt should'be áffirrñ-ed. ' *■- ■ " ■ ‘ : ” "•■■■ ‘ ■ ' ' -,:: ' ; 0 »'•»:»
   : " Síkes, J.,

delivered the opinion 6f the court. ’

!■ .Andy; Parham was- indicted, dried and- convicted for the unlawful sale of intoxicating liquor, from-¡which judgment of-conviction this appeal is prosecuted. ' ,- e w.¡. . w There was only one witness who testified in the case .and the ¡material part of-his testimony: is as follows: That-he and two other young men went out to the-defendant’s place to try,to get, some “liquor,” meaning-by that whiskey ythát he. asked the defendant if he had “anything;” and that-defendant first answered that-he did not. --Witness then-informed the defendant-that they were» going-to have a-dance and “would like to have“something’.if he-had •‘anything;?-” that he did not tell the defendant what they were after; that he understood the-defendant knew what-they wanted ; that he argued with the defendant fifteen or twenty minutes and that defendant said “he had a little ‘something’; and .he got it for me that- he got a half-gallon fruit; jar “full of something” out of his .smokehouse, and that ,it was white>in color, for which they paid the-defendant ten. dollars ;that :previous -to that time he had gotten “something” from the defendant, but did not know whether it was» whiskey- or. not; that they -finally gave this “something”, to some- negro musicians at a dance; that no complaint was■ made by -the -musicians about this -“something.”' - This; constitutes»the examination in chief: On eross-exam-ination the ¡witness •stated that he did -not know■ what»this “something”» was; that he did not know whether-it -was»whiskey or -whether ■it-,was intoxicating; : j- - J!

The court declined to grant a peremptory instruction ,in favor of the defendant. ¡i.:i.»w

There is no testimony in this - case upon which a jury could believe beyond a reasonable doubt that the contents of, tile balf-gallon fruit jar was intoxicating liquor. While w,e.might strongly suspect that the object and purpose o.f the visit of the young' gentlemen to the defendant was to purchase intoxicating liquor, the testimony is absolutely silent as to the contents of the fruit jar, except that it was white in color. This witness made no examination, of it, but merely assumed that it was the “something” they wanted, for tbe musicians. Before the defendant could bave.been convicted in this case, however, the Testimony must have, further shown that this “something” was intoxicating, liquor.,, and this the testimony fails to show.

■ The.court erred in not granting the peremptory instruction in favor of the defendant. r ■

..Reversed, and judgment discharging the defendant em teredhere. • ,.

Reversed,,  