Tate v. State

44 So. 836, 91 Miss. 382

• Court: Mississippi Supreme Court
• Decided: October 15, 1907
• Status: Published

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

The learned assistant attorney-general frankly concedes that “ if it appeared in this case that appellant bought the whisky in Canton, that being a wet town, we would hesitate to say that he had violated the law.” It is too plain for serious disputation that the record does show plainly that the whisky was bought in Canton, and on the facts in this case, that being so, no unlawful sale is shown. The court gave the following instruction: “ The court instructs the jury that, if from the evidence in this case they believe beyond a reasonable doubt that the accused sold the witness Manuel Lindsey any intoxicating liquor, he is guilty, even though they believe that said'Lindsey instructed the accused to bring him some whisky from Canton, and did not then and there give the accused the money to pay for said whisky, and the jury should find the defendant guilty.” This instruction is manifest error. The fact that the fifty cents was paid after the whisky was bought and brought from Canton can make no difference, and that it was so bought in Canton, a wet town, the whole record, including this instruction shows.

Reversed and remanded.