
    Forbert v. State.
    (Division A.
    May 17, 1937.)
    [174 So. 248.
    No. 32616.]
    
      Earl L. Wingo, of Hattiesburg, for appellant.
    
      ■ W. D. Conn, Jr., Assistant Attorney-General, for the state.
   Cook, J.,

delivered the opinion of the court.

Appellant was indicted and convicted in the circuit court of Forrest county on a charge of unlawful possession of wine of an alcoholic content greater than four per centum by weight.

The proof shows that just shortly before the November term of the circuit court of Forrest county convened, the circuit judge directed a deputy sheriff to go out and get him a couple of bottles of wine. The deputy went to appellant’s place of business, where food, wine, and beer were sold, and informed him that he desired to purchase a bottle of wine for the circuit judge. Appellant told the deputy that if the judge wanted it to take it on without paying for it, and the deputy when secured two bottles and delivered them to the circuit judge. In his charge to the grand jury, which was convened a few minutes thereafter, the judge exhibited these two bottles of wine to the jury and informed them that they were labeled as containing from nineteen to twenty-one per centum alcohol, and that the possession for sale or the sale of such wine was unlawful. Thereafter these bottles of. wine were delivered to and analyzed by a chemist, who testified that one of them contained 19.75 per centum alcohol and the other 20.02 per centum by volume, and that both of them contained more than fifteen per centum alcohol by weight. One of the bottles was labled “Port,” and the other £ £ Italian Girl, 100 % Pure California Fresh Grape Wines, Angelica. Old Reliable, Distributor.”

Appellant assigned as error the failure of the court to exclude the testimony of two deputy sheriffs as to appellant’s possession of the wine in question, and the circumstances under which it was secured, and the refusal of a peremptory instruction requested by him. The argument as to the admissibility of the testimony of the two deputies seems to be based upon the theory that the circumstances under which the wine was obtained, and the use made thereof before the grand jury bj^ the circuit judge, rendered evidence in reference thereto inadmissible. Aside from the fact that the record does not disclose that the circuit judge said anything in his charge to the grand jury that directed particular attention to the appellant as a violator of the laws dealing with the possession and sale of intoxicating liquors, there was neither a motion to quash the indictment nor a plea in abatement based upon any undue influence before the grand jury, and consequently such matters, which were de hors the record, are not here presented.

The further argument that the peremptory instruction requested by appellant should have been granted seems to be based upon some theory that, by reason of the manner in which the wine was secured, there was a violation of section 23, Constitution of 1890, guaranteeing the security of the people in their persons, houses, and possessions, from unreasonable seizure or search. We fail to see wherein this constitutional provision is involved. There was no search or seizure of appellant’s person, premises, or possessions, and no suggestion of coercion in securing the wine.

Appellant also complains of the only instruction given to the jury, which reads as follows: ‘ The court charges the jury that if from the evidence in this case you believe beyond a reasonable doubt that the defendant Forbert had in his possession wine of an alcoholic content of more than four per centum by weight, then you will find the defendant guilty as charged.”

Chapter 171, Laws 1934, provides that it shall be lawful in this state to transport, store, sell, distribute, possess, receive, or manufacture wine and beer of an alcoholic content of not more than four' per centum by weight, and this act expressly reserved the right of every person to make homemade wine for domestic or household uses, free from all restraint. While the indictment herein cannot accurately he said to be based upon this act of 1934, that.act is necessarily involved as embodying a modification of the general provisions of chapter 38 of the Code of 1930 (section 1973 et seq.) prohibiting the possession and sale of intoxicating wines and liquors, and the state fully met the burden of proving that the alcoholic content of the wine in question was more than four per centum be weight.

The criticism of the instruction, however, is that it does not require the jury to find that the possession of the wine was willful and unlawful, and did not submit to the jury the issue of whether or not the wine in question was homemade, and used for domestic and household purposes only. This act and section 1974, Code 1930, prohibit the possession of all wine of an alcoholic content of more than four per centum by weight, except homemade wine used for domestic and household purposes only; and in charging the offense of unlawful possession of wine under these sections it is not necessary to negative the exception of homemade- wine, and the state was not required to prove that the wine in question was not homemade wine used for domestic and household purposes only. In Easterling v. State, 35 Miss. 210, it was held that “the rule is, that when a fact is peculiarly within the knowledge of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence, or of acting according to law,, will not render it incumbent on the other side to prove the negative.” This rule was followed in Thomas v. State, 37 Miss. 353, and Fairly v. State, 63 Miss. 333, and is recognized and announced in Wharton on Criminal Evidence, Vol. 1 (10 Ed.), p. 349, in language substantially as follows: In cases where the subject of the exception is peculiarly within the defendant’s knowledge and the negative cannot be proved by the prosecutor, the burden of proving- the affirmative may be on the defendant as a matter of defense, and where the affirmative is peculiarly within the knowledge of the party- charged, the presumption of law in favor of innocence is not allowed to operate, as it were, to make a prima facie case in the affirmative for the defendant, but the general rule is that he who asserts the affirmative is to prove it and not he who avers the negative.

The labels which were on the bottles containing the wine tended to show that it was not homemade, and there is not a scintilla of evidence even suggesting that it was homemade wine, a fact, if it were a fact, which was peculiarly within the knowledge of the defendant, so that he would have had no difficulty in showing it. ,On the evidence in this record, the possession of the wine containing more than fifteen per centum of alcohol by weight was necessarily unlawful, and consequently appellant could not have been prejudiced by the omission of the word “unlawful” in the instruction to the jury.

Affirmed.  