Fairly v. State

Arnold, J., delivered the opinion of the court. The court was requested to instruct the jury for appellant, “ That the State is bound to prove before they can find the defendant 'guilty that either the Hickory bitters or the Garrie Owens bitters was spirituous liquors.” The court refused this instruction, but gave it to the jury after adding to it these words : “And evidence that the witness, Sam Davis, was made drunk by the use of the bitters, is proof that it was spirituous liquors.” To this action of the court the appellant objected, and there was good reason to object. The instruction as modified and given was a charge as to the weight of the evidence and should not have been given. Code, § 1714. Whether the bitters were spirituous liquors or not and what amount of evidence would constitute proof, were questions to be determined by the jury and not by the court. The instructions asked by appellant to the effect that it devolved on the State to prove every material allegation in the indictment, and that the allegations that defendant did unlawfully sell spirituous liquors, without license, in a less quantity than one gallon, were material and must be proved by the State was properly refused, for the reason that it was not incumbent on the State to prove the negative averment that the defendant had no license. Easterling v. The State, 35 Miss. 210; Thomas v. The State, 37 Ib. 353. Reversed.