
    Patrick McGuire vs. The State of Mississippi.
    In a prosecution against one indicted for selling liquor to a slave, “ without the permission of the owner, master, or overseer,” it is not sufficient merely to prove the sale of the liquor to the slave ; the state must show affirmatively that the sale was made without the permission of the master, owner, or overseer.
    It was held, therefore, error for the court below, in such a prosecution, to instruct the jury that the permission of the owner, master, or overseer was a matter of exculpation of a positive nature, and that the jury might infer that there was no such permission, from the failure of the defendant to introduce proof of it.
    In a prosecution for selling liquor to a slave, “ without permission, &c.,” it was held error in the court below to refuse to instruct the jury “ that it was incumbent on the state to prove all the material facts constituting the offence as charged in the indictment, otherwise the jury must acquit the prisoner.”
    
      In error from the circuit court of Plinds county; Hon. George Walter, judge.
    
      C. Scott and D. W. Adams, for plaintiff in error.
    
      D. C. Glenn, attorney-general, for the state.
   Mr. Justice Smith

delivered the opinion of the court.

This was a conviction under the statute of 1842, prohibiting the sale of vinous or spirituous liquors to slaves, without the permission of the owner, master, or overseer.

It was proved on the trial, that the plaintiff in error, during the month of July, 1847, sold spirituous liquors to a slave, the property of Capt. Garland. The only witness who was examined stated, that “ he did not see or know of any permission which the said slave had from his owner to purchase the liquor.”

The case comes before us on several alleged errors committed by the court in granting and refusing the instructions which were requested by the district attorney and the defendant. It will be unnecessary to notice all of these.

For the prosecution, amongst other instructions, the court charged “ that the permission of the master, owner, or overseer is a matter of exculpation of a positive nature; and the failure of the defendant to introduce any proof of such permission will authorize the jury to infer that there was no such permission.”

When an offence has been proved to have been committed, by an unknown person, the agency of a party in the commission of the'offence charged may sometimes be inferred from acts which in themselves are perfectly innocent and legal. Thus, where goods, proved to have been stolen, are found in the possession of the party charged with the theft, the possession, under certain circumstances, will raise a presumption of his guilt. In such a case, to avoid the consequences which the law attaches to this presumption, it would be incumbent on him to introduce 'explanatory or exculpatory evidence. But upon no principle of sound logic could the existence of an offence be inferred from the commission of an act to which the law has not attached the character of crime. The instruction inverts this rule. The mere vending of spirituous liquor to a slave is no violation of this statute. It only becomes criminal when done without the permission of the master, owner, or overseer. The essential ingredient of the offence consists in the want of such permission. Hence the court manifestly erred in giving this instruction.

For the prisoner, the court was asked to charge “ that it was incumbent on the state to prove all of the material facts constituting the offence as charged in the indictment, otherwise the jury will acquit the prisoner.”

This instruction contains a plain legal proposition. We know of no exception to the rule, that whatever it is material to aver in an indictment, it is necessary to prove; that the material allegations of the indictment, or those which charge the facts and circumstances which constitute the particular offence alleged, must be sustained by sufficient proof to authorize a conviction. On a trial for any offence, it is certainly material to instruct the jury in regard to the cardinal principles which should regulate their finding. In refusing this instruction the court also erred.

It is insisted by the attorney-general, that although the court may have erred in the charges granted or withheld, yet, as the verdict is fully sustained by the evidence, it should not be disturbed. We have quoted above the whole of the evidence, and the observations before made show that it was insufficient.

Let the judgment be reversed, and the cause remanded.  