
    City of Gulfport v. Jack Martin
    [50 South. 502.]
    Cbimihal Law axd Procedure. Having intoxicating liquors for unlawful sale. Code 1906, § 1797. Laws 1908, p. 116, ch. 114, sec. 1. Municipal ordinance adopting statute. Sufficiency of charge. Immaterial how liquors optaAned.
    
    Under Code 1906, § 1797, as amended, Laws 1908, p. 116, ch. 114, sec. 1, making it a misdemeanor to have intoxicating liquors in possession for the purpose of unlawfully selling or giving away the same, it is unnecessary for an affidavit or indictment charging the offense to aver how the liquors were received; and where á city by ordinance has adopted the statute as defining a municipal offense, it is needless in charging a violation of the ordinance to aver anything touching the reception of the intoxicants.
    From: tbe circuit court of .Harrison county.
    HoN. William: H. Hardy, Judge.
    Martin, appellee, was tried and convicted in tbe-municipal court of Gulfport for tbe violation of a city ordinance adopting tbe statute, Code 1906, § 1797, as amended Laws 1908, p. 116, cb. 114j § 1, prohibiting tbe having of intoxicating liquors in possession for tbe .purpose of unlawfully selling or giving away tbe same. He appealed from tbe conviction to tbe circuit court of tbe county and there demurred to tbe affidavit on which the prosecution .was based. The circuit court sustained tbe demurrer, bolding that tbe affidavit was defective because it failed to charge that tbe defendant bad received tbe liquor from a common carrier, collect on delivery, or with bill of lading attached. The city appealed to tbe supreme court.
    
      Jolm L. Heiss, for appellant.
    By ordinance Gulfport has adopted tbe satute, Code 1906, § 1797, as amended by Laws 1908, p. 116, cb. 114, § 1, and tbe affidavit to which tbe court below sustained a demurrer is as broad as tbe statute. It fully, as does the statute, advised tbe defendant of tbe nature of tbe charge and set out all tbe constituent elements of tbe offense. This was sufficient. Jesse v. State, 28 Miss. 100, and tbe many subsequent decisions of this court approving and following that case.
    The trial judge was misled by tbe title to tbe act of 1908; but an accurate construction of tbe title itself leads to an opposite conclusion from tbe one reached by tbe court below. 26 Aro. & Eng. Ency. of Law (2d ed.) 570, 572, 591.
    
      
      J. H. Mize, for appellee.
    The legislature of 1908 grouped all intoxicating liquors, shipped into tbe state O. O. D., or with bill of lading attached into one chapter and the whole chapter applies only to liquors so shipped into the state. Code 1906, §§ 1795, 1796, and 1798, all expressly relate only to liquors so shipped, and section 1797 plainly has reference only to the same subject matter as the section preceding and the one following it. The title to the act of 1908 is confirmatory of the appellee’s position. The affidavit was therefore fatally defective, and was subj’ect to demurrer, because it does not charge that the liquors were shipped into this state O. O. D., or with bill of lading attached, nor does it aver how appellee gained possession of the “goods.”
   Mayes, J.,

delivered the opinion of the court.

The affidavit in this case charges that the defendant “did unlawfully and willfully have in his possession intoxicating liquors with the intent and for the purpose of selling same in violation of law.” It is shown that by ordinance the city of Gulfport has adopted the state law on this subj'ect.

Under Code 1906, J 1797, as amended by Laws 1908, p. 116, ch. 114, § I, it is provided that: “It shall be unlawful for any person in this state to have in his possession any intoxicating liquors with the intention or for the purpose of selling the same or giving it away in violation of law. Any one violating this section shall, upon conviction for such offense, be punished by a fine not less than ten dollars nor more than one hundred dollars, or be imprisoned in the county jail not exceeding thirty days or by both such fine and imprisonment.” In an affidavit or indictment, under this section, it is not necessary to allege more than the statute fixes as constituting the crime; that is, it is only necessary to allege that the party charged had “in his possession intoxicating liquors with the intent or purpose of selling same or giving it away in violation of law.” And it can make no difference in wbat manner be obtained tbe liquors; that is to say, it is not an element of tbe offense that they were obtained O. O. D., or witb bill of lading attached.

The bolding of tbe court below that an allegation that tbe liquors were received 0. O. D., or witb bill of lading attached, was essential to charge an offense under this section, was error.

Reversed.  