Brazeale v. State

97 So. 525, 133 Miss. 171, 1923 Miss. LEXIS 119

• Court: Mississippi Supreme Court
• Decided: October 8, 1923
• Docket: No. 23630
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction for having intoxicating liquor in possession. When arrested, the appellant was in the act of taking a drink of whisky from a bottle. According to his version of the matter, the liquor Avas the property of another, Avho had just handed it to him, so that he might take a drink thereof.

The court charged the jury, at the request of the state, to find the defendant guilty if they believed from the evidence beyond a reasonable doubt that he — “did Avillfully and unlawfully take into his hands and thereby have in his possession a bottle containing intoxicating liquor, commonly called ‘white lightning whisky,’ for the purpose of taking a drink thereof.”

The question raised by this instruction, in the last analysis, is simply this: Is it a crime to take a drink of intoxicating liquor? The statute does not so provide, as could have been very easily done, had the'legislature so desired; its language being:

“It shall be unlawful for any person ... to have, control or possess” intoxicating liquor. Section -2, chapter 189, Laws 1918.

The possession contemplated by the statute is of more substantial character than that which is for the purpose of and to the extent only that is necessary for taking a drink. Harness v. State, 130 Miss. 673, 95 So. 64; Anderson v. State (Miss.), 96 So. 163. The appellant was entitled to, but seems not to have requested, an instruction charging the jury to acquit him.

Reversed and remanded.