Kittrell v. State

Mississippi Supreme Court

Kittrell v. State

42 So. 609, 89 Miss. 666

CourtMississippi Supreme Court

DecidedNovember 15, 1906

StatusPublished

Cited by6 cases

This text of 42 So. 609 (Kittrell 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

Kittrell v. State, 42 So. 609, 89 Miss. 666 (Mich. 1906).

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Opinion

Calhoon, J.,

delivered the opinion of the court.

The indictment is based solely on the ground that the defendant “did unlawfully sell and retail intoxicating liquors without license.” When this trial was had (August, 1906) it was well settled that the defendant had the right to demand that the court [670]*670compel the state to elect the particular sale on which it relied, and confine its testimony to that. The following are some of the cases so holding: Ware v. State, 71 Miss., 204 (s.c., 13 South. Rep., 936); King v. State, 66 Miss., 508 (s.c., 6 South. Rep., 188); Bailey v. State, 67 Miss., 334 (s.c., 7 South. Rep., 348) ; Newman v. State, 72 Miss., 126 (s.c., 16 South. Rep., 232) ; Naul v. McGomb City, 70 Miss., 699 (s.c., 12 South. Rep., 903). In the case before us the court below refused to so compel the state, and this was error. Code 1906, § 1762, changes the rule, but this cannot affect the previous trials.

The court below was right in overruling the motion to exclude the state’s evidence because of variance between allegations of the indictment and the proof. One who aids and abets in the commission of a misdemeanor is indictable as a principal, and there was evidence tending to show such aiding and abetting. Beck v. State, 69 Miss., 217 (s.c., 13 South. Rep., 835) ; Wynn v. State, 63 Miss., 260.

Kittrell kept, in the building in which the liquor was said to have been sold, a general mercantile business, and was there only about once a week; he having another business six miles away, where he chiefly was. The sales were by a negro, who, Kittrell says, had nothing to do with the store, and that he (Kittrell) had no knowledge of any sale; and so, under the evidence for defense, which it was for the jury to consider, it was error to give the first charge for the state. That required conviction if the negro was permitted to sell by agents or clerks, even without the knowledge of Kittrell. If this be the law, any citizen may be criminally guilty, where a servant makes a furtive sale of liquor. '

Reversed and remanded.

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Calhoon, J.,

delivered the opinion of the court.

The indictment is based solely on the ground that the defendant “did unlawfully sell and retail intoxicating liquors without license.” When this trial was had (August, 1906) it was well settled that the defendant had the right to demand that the court [670]*670compel the state to elect the particular sale on which it relied, and confine its testimony to that. The following are some of the cases so holding: Ware v. State, 71 Miss., 204 (s.c., 13 South. Rep., 936); King v. State, 66 Miss., 508 (s.c., 6 South. Rep., 188); Bailey v. State, 67 Miss., 334 (s.c., 7 South. Rep., 348) ; Newman v. State, 72 Miss., 126 (s.c., 16 South. Rep., 232) ; Naul v. McGomb City, 70 Miss., 699 (s.c., 12 South. Rep., 903). In the case before us the court below refused to so compel the state, and this was error. Code 1906, § 1762, changes the rule, but this cannot affect the previous trials.

The court below was right in overruling the motion to exclude the state’s evidence because of variance between allegations of the indictment and the proof. One who aids and abets in the commission of a misdemeanor is indictable as a principal, and there was evidence tending to show such aiding and abetting. Beck v. State, 69 Miss., 217 (s.c., 13 South. Rep., 835) ; Wynn v. State, 63 Miss., 260.

Kittrell kept, in the building in which the liquor was said to have been sold, a general mercantile business, and was there only about once a week; he having another business six miles away, where he chiefly was. The sales were by a negro, who, Kittrell says, had nothing to do with the store, and that he (Kittrell) had no knowledge of any sale; and so, under the evidence for defense, which it was for the jury to consider, it was error to give the first charge for the state. That required conviction if the negro was permitted to sell by agents or clerks, even without the knowledge of Kittrell. If this be the law, any citizen may be criminally guilty, where a servant makes a furtive sale of liquor. '

Reversed and remanded.

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42 So. 609, 89 Miss. 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kittrell-v-state-miss-1906.

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