Opinion
No. 39553.
March 16, 1955.
1. Contempt — presumption of innocence — proof required.
In a proceeding for criminal contempt, defendant is presumed to be innocent until proved guilty beyond a reasonable doubt.
2. Intoxicating liquors — contempt — violating injunction — evidence — insufficient to sustain conviction.
Officer's belief, based on sense of smell, that conglomerated mixture of liquids found on premises in defendant's possession was composed partly of whiskey was insufficient to sustain adjudication of contempt of Court for violation of injunction against possession and sale of intoxicating liquor on such premises. Sec. 2646, Code 1942.
Headnotes as approved by Arrington, J.
APPEAL from the Chancery Court of Neshoba County; J.K. GILLIS, Chancellor.
Howard R. Pigford, Wm. J. Gunn, Jr., Meridian, for appellant.
I. The Chancery Court erred in failing to require the State to exhibit the affidavits and the search warrants in this cause to the defendant and/or her counsel for examination and investigation before the trial of this cause.
II. The Chancery Court erred in overruling the motion of the appellant after examination of the affidavits and the search warrants in this case asking that any evidence secured by virtue of the affidavits and search warrants be excluded on the ground that the affidavits were not in proper form and that any search warrant based thereon would not be legal and any evidence secured thereby would not be competent.
III. The Chancery Court erred in overruling the motion of the appellant to limit any evidence of violation of the prohibition laws to the two particular instances set forth in the petition, namely September 26, 1953, and October 28, 1953, and asking that paragraph four of the petition be stricken as being too indefinite, uncertain, and vague to admit of any fair and reasonable defense.
IV. The Chancery Court erred in admitting into evidence over the objection of the appellant the affidavit which is identified as Exhibit "A" to the testimony of Mr. T.I. Tullos, said affidavit not being in proper form nor in the language of the statutes.
V. The Chancery Court erred in admitting into evidence the search warrant identified as Exhibit "B" to the testimony of Mr. T.I. Tullos over the objection of the appellant, said search warrant being null and void, same not being in the words of the statute nor in proper language, not being identified by the seal of the issuing officer, and the return on said search warrant being null and void.
VI. The Chancery Court erred in receiving into evidence over the objection of the appellant any evidence secured during the search of the premises involved on September 26, 1953, by virtue of the alleged search warrant which is identified as Exhibit "B" of the testimony of Mr. T.I. Tullos, said evidence being secured illegally.
VII. The Chancery Court erred in allowing any testimony as to the reputation of Cliff and Mae's Place before any evidence of the violation of the liquor statutes was shown.
VIII. The Chancery Court erred in allowing any amendment to the affidavit dated October 28, 1953, said affidavit having been taken before Justice of the Peace, A.R. Clark, and the search warrant issued pursuant thereto returnable to said A.R. Clark, Justice of the Peace, and not to the Chancery Court.
IX. The Chancery Court erred in admitting into evidence over the objection of the appellant the affidavit identified as Exhibit "A" to the testimony of Mr. A.R. Clark, Justice of the Peace, said affidavit offered showing on its face that it was obviously null and void, alleging "Wherein Hattie Mae Little has this date made complaint," Hattie Mae Little, the appellant, being shown by the affidavit to be the affiant.
X. The Chancery Court erred in admitting into evidence the search warrant issued by Justice of the Peace, A.R. Clark, upon the affidavit identified as Exhibit "A" of the testimony of A.R. Clark, Justice of the Peace, said search warrant having been issued on an affidavit which was null and void on its face.
XI. The Chancery Court erred in admitting into evidence any evidence obtained during the search of the premises on October 28, 1953, the search warrant and the affidavit under which said search was made being null and void.
XII. The Chancery Court erred in overruling motion of the appellant to exclude the evidence offered by the State and to dismiss the appellant.
XIII. The judgment of the Chancellor is manifestly and plainly wrong and erroneous.
Collation of authorities: Banks v. City of Jackson, 152 Miss. 844, 120 So. 209; Brannon v. State, 202 Miss. 571, 29 So.2d 916; Gerard v. Gill, 195 Miss. 726, 15 So.2d 478; Grace v. State, 108 Miss. 767, 67 So. 212; Kittrell v. State, 89 Miss. 666, 42 So. 609; Knox v. State, 160 Miss. 494, 135 So. 206; Matthews v. State, 134 Miss. 807, 100 So. 18; Pickle v. State, 151 Miss. 549, 118 So. 625; Ramsay v. Ramsay, 125 Miss. 715, 88 So. 280; Rochelle v. State, 222 Miss. 83, 75 So.2d 268; Smothers v. Jackson, 92 Miss. 327, 45 So. 982; State v. Watson, 133 Miss. 786, 98 So. 241; Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377; Turner v. State, 198 Miss. 839, 24 So.2d 841; Walker v. State, 177 Miss. 807, 172 So. 138; Washington v. State, 152 Miss. 154, 118 So. 719; Wells v. State, 135 Miss. 764, 100 So. 674; Secs. 1873, 2614, Code 1942.
Wm. E. Cresswell, Asst. Atty. Gen., Jackson, for appellee.
I. The affidavits and search warrants were in proper form and legal, and evidence secured thereunder admissible. Banks v. City of Jackson, 152 Miss. 844, 120 So. 209; Goss v. State, 187 Miss. 188, 192 So. 494; Holmes v. State, 146 Miss. 351, 111 So. 860; Matthews v. State, 134 Miss. 807, 100 So. 18; Owens v. State, 169 Miss. 141, 152 So. 651; Powell v. State, 196 Miss. 331, 17 So.2d 524; Serio v. Brookhaven, 208 Miss. 620, 45 So.2d 257; State v. Needham, 182 Miss. 663, 180 So. 786.
II. The evidence in this case is sufficient to prove appellant guilty beyond a reasonable doubt.
III. The decree of the Chancellor is not manifestly erroneous, but is correct and supported by substantial evidence.
The Chancery Court of Neshoba County adjudged appellant, Mrs. Hattie May Hoyt Little, guilty of contempt of court by the violation of the court's decree enjoining her from the possession and sale of intoxicating liquor on certain described premises, and she was fined $1,000, sentenced to serve a term of six months in the county jail, and her bond in the sum of $500 was ordered forfeited.
On May 27, 1952, under Section 2646, Mississippi Code of 1942, appellant was enjoined by the Chancery Court of Neshoba County from violating the intoxicating liquor statutes of the State of Mississippi on the premises described in the decree. It was further ordered that she enter into bond in the sum of $500, conditioned that she would not violate the prohibition laws of the State of Mississippi for two years. The decree also contained other provisions not involved in this proceeding. On November 9, 1953, a petition for citation was filed against appellant, averring that she had violated the injunction decree on two occasions, September 26, 1953, and October 28, 1953, and praying that she be adjudged and punished for contempt.
On this appeal appellant argues that the evidence presented in support of the petition praying that she be cited for contempt failed to show beyond a reasonable doubt that she violated the injunction decree of the Chancery Court of Neshoba County.
The only proof offered by petitioners tending to support the averments in the petition that appellant had violated the prohibition laws of the State of Mississippi consisted of the following: On the 26th day of September, 1953, the Sheriff of Neshoba County, accompanied by a deputy and a constable, searched the premises described in the injunction, under authority of a lawful search warrant, and found the appellant in possession thereof, smelled what they believed to be the odor of whiskey, and surmised that whiskey had been poured into a tub containing water and ice in which beer was cooling. The officers saw no one pour anything in the tub, and no jug, jar, or bottle was found, despite a thorough search, from which whiskey could have been poured. On October 28, 1953, the officers again raided appellant's premises and conducted a diligent search, and found appellant in possession thereof, again smelled whiskey, and testified that whiskey had been poured into a chamber pot containing other substances not further identified. Once again, the officers saw no one pour anything in the chamber pot, and found no container from which whiskey could have been poured, but surmised that whiskey had been poured into the chamber pot because of the odor.
(Hn 1) From the foregoing summary of petitioners' evidence, it is manifest that proof of the violations of the injunction decree rest upon mere opinion, belief, and conjecture. It is well settled in this jurisdiction that in a proceeding for criminal contempt, the defendant is presumed innocent until proved guilty beyond a reasonable doubt. Rochelle v. State, (Miss. 1954), 75 So.2d 268; Ramsay v. Ramsay, 125 Miss. 715, 88 So. 280, suggestion of error sustained (1921), 125 Miss. 185, 87 So. 491, 14 A.L.R. 712; Brannon v. State (1947), 202 Miss. 571, 29 So.2d 916. (Hn 2) The petitioner's proof in the instant case failed to meet this burden. The mere smelling of what the officers believed to be the odor of whiskey without corroboration of any kind cannot be held to have met this burden. Abundant resources exist whereby the law enforcement officers of the State may determine with a marked degree of certainty the component parts of a suspected and conglomerate mixture of liquids believed to be composed of whiskey and other substances, without relying solely upon the ofttimes fallible human nose where other evidence is lacking.
This is not a case where the liquid found was whiskey or some other intoxicating liquor that could be readily identified by taste or smell, but where a mixture was found into which it was believed that whiskey had been poured and which the officers believed was composed partly of whiskey.
Reversed and appellant discharged.
All Justices concur, except Roberds, Lee, and Gillespie, who dissent.
I concede that the proof of violation of the injunction falls below what is desirable to warrant the penalty for contempt. However, when the case is viewed in the light of all the circumstances, and indulging the presumption of the rightfulness of the chancellor's decree, I would affirm the case.