WALKER v. STATE

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Docket Number

No. 36018.

Attorney(S)

E.L. Dent and W.W. Dent, both of Collins, for appellant. It is undisputed in the record that the relation of landlord and tenant existed between appellant and Malici Walker, and that Malici Walker had possession of the land and premises on which the officers found the liquor, for the illegal possession of which appellant was tried and convicted. A tenant is entitled to exclusive possession as against the landlord, and there is a presumption of a right of this exclusive possession in the tenant. Lott v. State, 159 Miss. 484, 132 So. 336; 36 C.J. 33, 53, Secs. 634, 668. Where the owner of property rents it in good faith to be used for legal and legitimate purposes, he cannot be subjected to a criminal prosecution under our statute making it unlawful to have in one's possession intoxicating liquors because the lessee violates the law, and there is a stronger presumption that the tenant, Malici Walker, had the liquor in his possession than appellant, the landlord, and this is true even though Malici denies any knowledge of the liquor. We think, to sustain a conviction under our statute, it is necessary that there should be some evidence, direct or circumstantial, conducing to show that the owner of the premises knew, or had such information as would put a person of ordinary prudence upon notice, at or before the time the lease was entered into, that it was the intention of the lessee to have liquor upon the leased premises. The statute does not make the landlord liable because the tenant, after obtaining possession of the premises, violates the statute, nor does it give him the right for this cause to eject the tenant and to take possession of the premises during the term. See City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785; Lewis et al. v. State, 198 Miss. 767, 23 So.2d 401; McComb City v. Hill, 100 Miss. 193, 56 So. 346; Stansberry v. State, 98 Miss. 406, 53 So. 783; Lowe v. State, 127 Miss. 340, 90 So. 78; Williams v. State, 102 Miss. 274, 59 So. 87, 58 So. 716; Sullivan v. State (Miss.), 118 So. 422; 33 C.J. 607, Sec. 236. The relation of landowner and cropper gives the cropper interest in land and crop. Elson v. Barrier, 56 Miss. 394; Williams et al. v. Sykes, 170 Miss. 88, 154 So. 267, 727; Schlicht v. Callicott, 76 Miss. 487, 24 So. 869; Alexander v. Zeigler, 84 Miss. 560, 36 So. 536; Bethany v. State, 124 Miss. 870, 87 So. 410; Minn. Iron Store Co. v Branum et al., 117-E L.R.A. 298; DeSpain v. Doley, 117-C L.R.A. 1111; Code of 1942, Sec. 908. Greek L. Rice, Attorney General, and Geo. H. Ethridge, Assistant Attorney General, for appellee. The relation of landowner and cropper gives the cropper no interest in the land. Mechanics' Ins. Co. v. Inter-Southern Life Ins. Co., 184 Ark. 625, 43 S.W.2d 81; Taylor v. Riggins, 129 Okla. 57, 263 P. 146; Halsell v. First Nat. Bank, 109 Okla. 220, 235 P. 532; 15 Am. Jur. 235, Secs. 45-49; 39 Words and Phrases 164. If there was any contract varying the relation as to landowner and cropper, it devolved on the defendant to show this contract on theory it was in the peculiar knowledge of defendant. Easterling v. State, 35 Miss. 210; Thomas v. State, 37 Miss. 353; Fairly v. State, 63 Miss. 333; Forbert v. State, 179 Miss. 66, 174 So. 248. The liquor being on the land owned by appellant, it was a question for the jury to determine whether the appellant was in possession of the liquor so found. Quick v. State, 192 Miss. 789, 7 So.2d 887; Williamson v. State, 191 Miss. 643, 4 So.2d 220; Brown v. State, 192 Miss. 314, 5 So.2d 426. The appellant cannot complain of a search of land by officers where he has not the right of possession or title. Brown v. State, supra; Falkner v. State, 134 Miss. 253, 98 So. 691; Lee v. Oxford, 134 Miss. 647, 99 So. 509; Ross v. State, 140 Miss. 367, 105 So. 846; Messer v. State (Miss.), 107 So. 384; Davis v. State, 144 Miss. 551, 110 So. 447; Ashley v. State, 150 Miss. 547, 117 So. 511; Roberts v. State, 153 Miss. 622, 121 So. 279; James v. State (Miss.), 161 So. 749; McLemore v. State, 178 Miss. 525, 172 So. 139. The jury have a right to judge of the credibility of the evidence and to draw inferences from the evidence, and their verdict, in case of conflicting evidence or where two or more reasonable theories arise from the evidence, is binding on the court. Carter v. State, 140 Miss. 265, 105 So. 514; Justice v. State, 170 Miss. 96, 154 So. 265; King v. King, 161 Miss. 51, 134 So. 827; Sones v. State (Miss.), 155 So. 188; Loper v. Yazoo M.V.R. Co., 166 Miss. 79, 145 So. 743.

Judges

Roberds, J., delivered the opinion of the court.

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WALKER v. STATE.

INTOXICATING LIQUORS.

Evidence was insufficient to sustain conviction for unlawful possession of intoxicating liquor.

Roberds, J., delivered the opinion of the court.

Walker was convicted of the unlawful possession of intoxicating liquor and appeals.

He contends that the evidence is insufficient to convict him, and that his request for a peremptory instruction in the trial court should have been granted and that he should be discharged here.

A summary of the evidence is this: On August 28, 1945, the officers found in an open cotton field some three hundred yards from the home of appellant, where he and his family were residing, a ten gallon keg and two one gallon jugs of whiskey. The land upon which the whiskey was found belonged to appellant, but he had it rented on shares to one Malici Walker, who had a growing cotton crop thereon. It is not shown that Will Walker, the appellant, had anything to do with the land or the crop that year except that he did some plowing in that field, under an exchange-work arrangement with Malici, a month or two prior to the finding of the whiskey. It is further shown that Malici lived within a hundred yards of the place where the whiskey was found, and some five or six other families had their homes within a radius of two hundred to five hundred yards thereof. There is no evidence that any human foot prints led from appellant's house to the whiskey. There was some evidence there were a few footprints around the whiskey but that they led in another direction. Under this evidence there could be no conviction of appellant. The facts of this case readily distinguish it from Williamson v. State, 191 Miss. 643, 4 So.2d 220, and Quick v. State, 192 Miss. 789, 7 So.2d 887, and other similar cases.

Reversed and appellant discharged.

WALKER v. STATE.

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