Gann v. State

Mississippi Supreme Court

Gann v. State

110 So. 439, 144 Miss. 526, 1926 Miss. LEXIS 410

CourtMississippi Supreme Court

DecidedNovember 29, 1926

DocketNo. 25782.

StatusPublished

This text of 110 So. 439 (Gann v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gann v. State, 110 So. 439, 144 Miss. 526, 1926 Miss. LEXIS 410 (Mich. 1926).

Pincite

Opinion

*528 Cook, J.,

delivered the opinion of the court.

The appellant was convicted on a charge of the unlawful possession of more than one quart of intoxicating liquor, and was sentenced to serve sixty days in jail, and to pay a fine of two hundred dollars, and from this conviction and sentence he has prosecuted this appeal.

The state secured the following instruction to the jury:

“The court instructs the jury, for the state, that, if you believe from the evidence beyond a reasonable doubt that the defendant had in his possession on the occasion in question intoxicating liquors, it is your sworn duty to convict him, and this is true, even though he may have had only a small quantity in a jug at the time the officers took it in charge. ’ ’

This instruction authorized a conviction on the charge of having more than one quart of liquor in possession, if the jury believed from the evidence beyond a reasonable doubt that the appellant had any intoxicating liquor in his possession on the occasion in question. In response to this instruction, the jury returned a general verdict of guilty as charged, which was a conviction of having more than a quart in his possession, which carries a greater minimum penalty than the general statute making it a criminal offense to have in one’s possession any quantity of intoxicating liquor. Tó authorize a verdict of guilty of the offense charged, this instruction should have carried the qualification that the jury must believe from the evidence, beyond a reasonable doubt, that the defendant had in his possession more than a quart of intoxicating liquor on the occasion in question. "Whether a defendant may be convicted of having in his possession less than a quart, upon a charge of having more than one quart, is not here involved.

Por the error indicated in the state’s instruction, the judgment of the court below will be reversed, and the cause remanded.

Reversed and remanded.

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*528 Cook, J.,

delivered the opinion of the court.

The appellant was convicted on a charge of the unlawful possession of more than one quart of intoxicating liquor, and was sentenced to serve sixty days in jail, and to pay a fine of two hundred dollars, and from this conviction and sentence he has prosecuted this appeal.

The state secured the following instruction to the jury:

“The court instructs the jury, for the state, that, if you believe from the evidence beyond a reasonable doubt that the defendant had in his possession on the occasion in question intoxicating liquors, it is your sworn duty to convict him, and this is true, even though he may have had only a small quantity in a jug at the time the officers took it in charge. ’ ’

This instruction authorized a conviction on the charge of having more than one quart of liquor in possession, if the jury believed from the evidence beyond a reasonable doubt that the appellant had any intoxicating liquor in his possession on the occasion in question. In response to this instruction, the jury returned a general verdict of guilty as charged, which was a conviction of having more than a quart in his possession, which carries a greater minimum penalty than the general statute making it a criminal offense to have in one’s possession any quantity of intoxicating liquor. Tó authorize a verdict of guilty of the offense charged, this instruction should have carried the qualification that the jury must believe from the evidence, beyond a reasonable doubt, that the defendant had in his possession more than a quart of intoxicating liquor on the occasion in question. "Whether a defendant may be convicted of having in his possession less than a quart, upon a charge of having more than one quart, is not here involved.

Por the error indicated in the state’s instruction, the judgment of the court below will be reversed, and the cause remanded.

Reversed and remanded.

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Bluebook (online)

110 So. 439, 144 Miss. 526, 1926 Miss. LEXIS 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gann-v-state-miss-1926.