John Livelar Co. v. State

Anderson, J., delivered the opinion of the court. This is a proceeding on the part of the state to seize and destroy certain intoxicating liquors, under sections 1749, 1750, and 1751, Code 1906. There was a claim interposed by the appellants for the liquors, and a trial, resulting in a judgment against them, from which they prosecute this appeal. The liquors in question were sold by appellants to J. B. McClufg, the latter giving them his check in payment therefor, and were shipped to McClurg at West, and found stored in the depot there, consigned to him. The following affidavit was made for their seizure: “Before mé, T. B. Hastings, mayor of West and ex-officio [335] a justice of the peace of district No. 2, J. P. Miuyard, who makes affidavit on information and belief that the whisky in depot at West, in district No. 2, Holmes county, Miss., consigned to J. B. McClurg on or about the 18th day of April, 1908, is intended for sale by said McClurg in violation of law and against the peace and dignity of the state of Mississippi, return day being set for 13th ■day of May, 1908, against the peace and dignity of the •state of Mississippi.” The check given by McClurg to appellants was by the former protested, and appellants thereupon, treating the sale as rescinded, madé affidavit claiming the liquors, and also interposed a demurrer to the affidavit of seizure, on the ground that it charged no offense, which was overruled. Section 1749, Code 1906, is as follows: “Upon the affidavit of any credible person that he has réason to believe and does believe that intoxicating liquors, as -described in the three preceding sections, are being kept or offered for sale or barter, or sold or bartered, or that they are being kept to be given away, or are being ■given away to induce trade, in violation of law, in any room- or building designated in the affidavit, it .shall be the duty of any justice of the peace of the county in which the place is situated to issue a search warrant, directed to the sheriff or any constable of the county, or if in a municipality, to the sheriff, or any constable or marshal, or policeman therein, commanding him to enter the room or building designated by breaking, if necessary, and search for and seize such liquors, and all vessels or appliances used in connection therewith, and hold the same until disposed of according to law. The writ shall be returnable at a time to be stated therein not earlier than five days.” Section 1750 provides that any person claiming to be the owner of the liquors seized shall have the right to make affidavit of his ownership, and traversing the grounds of the affidavit for seizure, [336] etc.; and section 1751, for the trial of the issue so made, the judgment to he rendered, etc. Does the affidavit for seizure charge an offense under the statute? It charges that the liquors were “intended for sale hy said McClurg in violation of law; while the language of the statute (section 1719) is, “are being" kept or offered for sale or barter, or sold or bartered, or that they are being kept to be given away, or are being given away to induce trade. ’ ’ This statute is one of the remedies provided for the enforcement of the laws of this state against the unlawful sale of intoxicating liquors, and authorizes searches for, seizure, and the destruction, of such liquors “kept,” etc., in violation of law, and, like all laws authorizing searches and seizures, must be strictly pursued. 25 Am. and Eng. EnCy. Law (2d Ed.), 151, 152. An intention to sell falls short of a violation of the statute. The affidavit must charge the offense, either in the language of the statute or words of substantially the same import. Reversed and remamded.