Riley v. State

Mississippi Supreme Court

Riley v. State

55 So. 2d 447, 212 Miss. 746, 1951 Miss. LEXIS 505

CourtMississippi Supreme Court

DecidedDecember 10, 1951

DocketNo. 38229

StatusPublished

Cited by1 cases

This text of 55 So. 2d 447 (Riley 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

Riley v. State, 55 So. 2d 447, 212 Miss. 746, 1951 Miss. LEXIS 505 (Mich. 1951).

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Opinion

Alexander, J.

Appellant was convicted of the sale of intoxicating liquor designated as “homebrew.” The testimony indicated that it was malt liquor.

There was no showing whether the sale was made in a county which had voted out beer, nor did the proof show the alcoholic content of the product. There was convincing testimony that the liquor was intoxicating. The State seeks affirmance upon the theory that the applicable statute is Code 1942, Section 2613, which forbids traffic in any liquors “which if drunk to excess will produce intoxication.” Insofar as malt liquors or beer is concerned, this section has been superseded by Sec. 10207 et seq., Chapter 5, Vol. 7, Code 1942, as to all cases covered by the chapter, and the test is not its intoxicating potency but its alcoholic content. Hall v. State, 199 Miss. 560, 24 So. (2d) 780.

The indictment was insufficient. It charged only that the accused “did unlawfully sell intoxicating liquor, to wit, Home-Brew.” No crime is stated. There is no allegation that the sale of bee„r had been outlawed by an election. May v. State, 209 Miss. 579, 47 So. (2d) 887.

The cause will be reversed and appellant discharged, but without prejudice to the State to institute such further proceedings as it may deem appropriate. ■

Reversed and appellant discharged.

Hall, J., took no part in the decision of this case.

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Alexander, J.

Appellant was convicted of the sale of intoxicating liquor designated as “homebrew.” The testimony indicated that it was malt liquor.

There was no showing whether the sale was made in a county which had voted out beer, nor did the proof show the alcoholic content of the product. There was convincing testimony that the liquor was intoxicating. The State seeks affirmance upon the theory that the applicable statute is Code 1942, Section 2613, which forbids traffic in any liquors “which if drunk to excess will produce intoxication.” Insofar as malt liquors or beer is concerned, this section has been superseded by Sec. 10207 et seq., Chapter 5, Vol. 7, Code 1942, as to all cases covered by the chapter, and the test is not its intoxicating potency but its alcoholic content. Hall v. State, 199 Miss. 560, 24 So. (2d) 780.

The indictment was insufficient. It charged only that the accused “did unlawfully sell intoxicating liquor, to wit, Home-Brew.” No crime is stated. There is no allegation that the sale of bee„r had been outlawed by an election. May v. State, 209 Miss. 579, 47 So. (2d) 887.

The cause will be reversed and appellant discharged, but without prejudice to the State to institute such further proceedings as it may deem appropriate. ■

Reversed and appellant discharged.

Hall, J., took no part in the decision of this case.

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Bluebook (online)

55 So. 2d 447, 212 Miss. 746, 1951 Miss. LEXIS 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riley-v-state-miss-1951.

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