* Corpus Juris-Cyc. References: Intoxicating Liquors, 33CJ, p. 584, n. 75; p. 585, n. 90; p. 744, n. 7, 22; p. 746, n. 43; p. 762, n. 58. As to power to prohibit the keeping of intoxicating liquor irrespective of any intention to sell it in violation of law, see annotation in 24 L.R.A. (N.S.) 172; 26 L.R.A. (N.S.) 394; L.R.A. 1915D, 172; L.R.A. 1917D, 938; 2 A.L.R. 1085; 15 R.C.L. 265; 3 R.C.L. Supp. 441; 6 R.C.L. Supp. 909. The appellant, J.R. Cutts, was convicted in the circuit court of Winston county on a charge of unlawfully having in his possession intoxicating liquors, and was sentenced to pay a fine of one hundred dollars and to serve a sentence of six months in the county jail, three months of the jail sentence being suspended during good behavior, and from this conviction and sentence he prosecuted this appeal.
The facts upon which this conviction is based are substantially as follows: The appellant is a merchant and hotel keeper in the town of Louisville, Miss., and lived with his family in the hotel. On November 6, 1926, under the authority of a search warrant, certain officers searched the hotel and premises of the appellant, and found in a closet of the hotel two unbroken or unopened boxes of an alcoholic preparation labeled "allspice," each box containing one hundred forty-four two-ounce bottles. Some time prior to the time this search was made, the appellant had filed his application with the mayor and board of aldermen of the town of Louisville for a permit to handle certain alcoholic preparations, in accordance with the provisions of chapter 201, Laws of 1926. On cross-examination the appellant testified that he purchased this allspice for the purpose of selling it as a flavoring extract, but, when his entire testimony is considered together, it is to the effect that he intended to sell it only after a permit so to do had been obtained from the mayor and board of aldermen of the town.
Section 1, chapter 201, Laws of 1926, provides that it shall be unlawful for any person to sell, barter, give away, or keep for such purposes any sweet spirits of nitre, liquid ginger preparation, elixir of orange peel, pear extract, or any like drug, compound, bitters, elixir, or preparation of any kind whatsoever, which, when drunk to excess, in the form sold, will produce intoxication, except when the same is kept, sold, bartered, or given away for either medicinal or household purposes, *Page 598 or for uses in cooking, baking, and purposes incidental to the treatment of disease.
Section 2 of the said chapter 201, among other things, provides that no person, except traveling salesmen, engaged in selling exclusively to wholesale and retail merchants, shall sell, barter, or give away, or keep for such purposes, any of the preparations or extracts named in section 1 of the act, until a permit so to do shall be granted by the governing authorities of the municipality within which the business is or may be proposed to be carried on, or by the board of supervisors of the county if the business is to be carried on outside the corporate limits of a municipality.
It will be noted that neither by section 1 nor section 2 of this act is the mere keeping of the named preparations and extracts made unlawful, but it is only the keeping of such preparations for sale, barter, or to be given away, that is prohibited by this statute, and they may be kept for sale, barter, or to be given away for medicinal or household purposes, provided a permit so to do is obtained from the proper authorities. Consequently, under the statute it is not unlawful to possess these named preparations if there is no intention or purpose of selling, bartering, or giving away the same for any purpose, unless and until a permit so to do has been secured from the proper authorities. In the case at bar the state had the burden of proving that the allspice was possessed by the appellant for the purpose of being sold, bartered, or given away in violation of the provisions of this statute, and we are of the opinion that the testimony is not sufficient to meet this burden, and that the peremptory instruction requested by the appellant should have been granted.
The judgment of the court below will therefore be reversed, and judgment entered here for appellant.
Reversed, and judgment for appellant.
Reversed. *Page 599