MONTROY v. GULLY

F.H. Montgomery and Brewer Sisson, all of Clarksdale, for appellants.

The testimony fails completely to connect defendant with the alleged sale of whiskey.

The burden of proof was on complainant to prove with reasonable certainty the material allegations of the bill of complaint, but he failed.

No date is shown, either in complainant's pleading or his proof, which fixes the time of the alleged sale.

Surely, if defendant's place of business had a general reputation in the community as a place where intoxicating liquors were sold, more than one witness should have been produced to prove the contention.

Fact testimony offered by complainant is tarnished and weak. In procuring the alleged sale of a half-pint of Seagram's witness Ross committed a plain, deliberate criminal offense.

The inherent character of the testimony of one who wilfully commits a crime to enforce payment of a debt falls little short of blackmail. Which is more reprehensible, the deliberate commission of a crime, or failure to pay a debt claimed to be owing but the validity of which is in dispute? The answer is obvious.

Furthermore, one who aids, incites, assists, or encourages the commission of a misdemeanor is indictable and punishable as a principal.

Johns v. State, 78 Miss. 663, 29 So. 401; McCoy v. State, 91 Miss. 257, 44 So. 814; Douglas v. State, 44 So. 817.

The evidence of general reputation is incompetent.

It is extremely doubtful whether the testimony of one person as to general reputation carries such probative value as to justify an adverse decree; especially, where another equally credible witness, introduced on behalf of complainant, testified to the contrary, is sufficient to justify a decree on this issue.

Handy v. State, 63 Miss. 207; Rosetto v. Bay St. Louis, 97 Miss. 409, 52 So. 785.

In the case at bar a sale of a half-pint of Seagram's not by defendant, but by a negro named Sam Shaw, was proven. The witness Longino testified that Montroy's place of business bore the reputation of being a place where liquor might be bought. But this was contradicted by the witness Keesee. The testimony was all objected to at the time it was offered, and the objections overruled.

It is respectfully submitted that the testimony was inadequate to convict defendant of habitually maintaining a nuisance, and entering a decree padlocking a place of business where a legitimate mercantile business was operated.

The evidence must be directed to general reputation as it existed at the time of the occurrences rendered important by the evidence, or at a time sufficiently near thereto to be relevant, remoteness, if not too great, going to the weight, rather than the admissibility of the evidence. It is also necessary that the reputation should be that which existed before the occurrence of the circumstances out of which the litigation arose.

22 C.J. 480, Sec. 575; Lockhart v. State (Tex.), 13 S.W. 1013; Moore v. State (Tenn.), 33 S.W. 1046; Smith v. State, 72 So. 316.

The state tax collector is without power to prosecute suit to abate nuisance.

Section 2007, Code of 1930, expressly provides that only the Attorney-General, or any district or county attorney whose duty requires him to prosecute criminal cases in behalf of the state, may maintain an action to abate as a nuisance any place where intoxicating liquors are kept. The state tax collector is not clothed with such power. And even then, the suit must be filed in the name of the state. The suit at bar is filed in the name of the tax collector.

W.W. Venable, of Clarksdale, and Denman Everett, of Greenwood, for appellee.

This action is brought under Sections 2000 and 2001 of the Code, and the action is civil in character.

State v. Marshall, 100 Miss. 626.

Since the action is civil in its nature, the rules governing the burden of proof are those applied in civil cases, namely, that the complainant has only the burden to establish his case by a preponderance of the evidence.

State ex rel. Dist. Atty. v. White, 178 Miss. 542; Pigford v. State, 183 So. 295.

If the place of business was owned and operated by Montroy, there is a presumption in the absence of other evidence that he knew what was going on at his place of business and what is in his store.

City of Jackson v. Gordon, 119 Miss. 325.

The proof is sufficient in the absence of any further testimony that Montroy operated the place of business.

The proof showed general reputation of the place as belonging to the defendant, and was an expression of the opinion of the witnesses as to who owned the place based on such information.

That such proof has rational probative value and is therefore relevant goes without saying because the entire business world acts everyday upon such repute. If such testimony is subject to the objection of being hearsay, the defendant cannot take advantage of this rule because he did not object.

Palmer v. Fair Co., 140 Miss. 294; Railroad Co. v. Mauldin, 103 Miss. 244.

Oral testimony as to ownership is admissible. A witness may testify as to his opinion as to who was owner, or in possession of premises, or who owned a business.

Potts v. Buckley, 115 A. 727; Wolfe v. Williams, 69 N.Y. 621; Pichler v. Reese, 171 N.Y. 577; Hawley v. Bond, 20 S.D. 214, 105 N.W. 464; Wigmore, Secs. 1246, 1374; 3 How. 205 (Miss.).

Since in a chancery court it is a duty of a defendant to answer according to conscience and to make discovery in his answer, this being true whether answer under oath is waived or not, an evasive denial will be construed more strongly against the pleader. He must answer directly and positively, without equivocation, ambiguity, or evasion.

Austin Clothing Co. v. Posey, 105 Miss. 727; Tarpley v. Wilson, 33 Miss. 467; Nixon v. Jullian, 72 Miss. 573; Reynolds v. Wilkinson, 119 Miss. 590; Colbert v. Henley, 64 Miss. 370.

Section 2000, Code of 1930, authorizes in expressed terms the State Tax Collector and others to bring suit for the penalty. Section 2001 grants specific jurisdiction to the chancery court for the suits authorized in Section 2000 and provides "and the Chancery Court shall have authority to suppress as a nuisance any place of business where the preceding section is violated and by proper judgments and orders to punish and restrain the violators thereof."

In as clear language as possible, Sections 2000 and 2001 authorize the suit by the State Tax Collector in the chancery court for the penalty with the further provision that in such suit the chancery court may suppress as a nuisance any place of business where liquor is sold, or given away, or possessed, or permitted to be sold, or given away, or possessed in connection with the business.

Certainly, an injunction is the only way by which the chancery court could suppress the nuisance of the sale of liquor in connection with the business.

Pigford v. State ex rel. Broach, 183 So. 295.

An action brought under Section 2000 must be distinguished from an action brought under Section 2007.

Section 2007 deals with the possession of liquor by any person, anywhere, and provides simply for the abatement of the nuisance by injunction, no penalties being involved. Sections 2000 and 2001 deal with possession and sale of liquor in connection with a specific business and declare the business so conducted to be a nuisance. The two statutes deal with different situations and for different purposes.

We call the court's attention to the fact that in the case at bar no bond was required by the court. A bond was asked for not under Section 2007 but as being an appropriate way to suppress a nuisance, the court being given power by Section 2001, "by proper judgments and orders to punish and restrain, etc." In no respect was 2007 involved in the suit at bar. The chancellor did not require a bond and therefore this is not ground for complaint.

General reputation of a place as one where intoxicating liquors were kept and sold is admissible.

State ex rel. Dist. Atty. v. White, 178 Miss. 542.