title to remain in the vendor until the price was paid. The court held that the contract and notes given in accordance therewith were void, being based upon an illegal contract.

The jury had all the witnesses before it, heard and saw both of the appellants testify, and found as a fact that the appellants sold the appellee the furniture knowing what she was, knowing what her business was, and the use she was to put the furniture to, and the revenues from what business she was to meet her payments with. In other words, the jurors did not believe the appellants statements; but there was ample proof to sustain the verdict aside from the Messrs. Ham's testimony, namely; the testimony of E. B. Pool shows clearly that he knew all about the woman, what her business was, and how she expected to pay for the furniture and E. B. Pool was the salesman, bookkeeper and general agent of the appellants.

We respectfully submit that the judgment of the lower court should be affirmed.

SAM COOK, P. J., delivered the opinion of the court.

The appallants instituted a suit in the circuit court of Washington county. The suit was in replevin, and it appears that the appellants were merchants doing a business in the city of Greenville, in the county of Washington. It appears from the record that appellants sold to the defendant, appellee, a bill of household goods, amounting in aggregate to the sum of one thousand seven hundred and ninety dollars and ninety cents; but it seems the defendant had reduced the original bill by making payments to the sum of five hundred and forty dollars and fifteen cents. The evidence shows that the defendant was a prostitute, and was conducting a house of ill fame in the segregated or red light district.

We think the record shows beyond question that the sellers knew, at the time of the sale of the goods, that the items sold by them were bought for the purpose of furnishing a house of ill fame, and the jury were fully justified in

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so finding. One of the members of the firm selling the furniture was the mayor of the city of Greenville, and after a large part of the purchase price had been paid the mayor issued an order compelling the defendant and all others of her kind to close up their houses and leave town. It appears from the contract of sale that the appellee could not remove her furniture without the consent of the sellers and, appellee being unable to pay the balance due, this action was instituted by the appellants. It seems quite clear that the jury believed that the seller knew for what purpose the furniture was bought, and to what use it was put, and the evidence warranted, if not compelled, such belief.

"The whole contract is against public policy, an offense against morality, and absolutely void." Mitchell v. Campbell, 111 Miss. 806, 72 So. 231.

Judge STEVENS speaking for this court in the case just quoted, went fully into the principles involved in that and in this case, and committed us to the doctrine that the court will not lend its aid to such immoral and unholy transactions. See, also, Standard Furniture Co. v. Van Alstine, 22 Wash. 670, 62 Pac. 145, 51 L. R. A. 889, 79 Am. St. Rep. 960.

Affirmed.

STATE . ADAMS.

[86 South. 337. No. 21270.]

CRIMINAL LAW. State's appeal from judgment discharging for insufficiency of evidence presents no question of law.

An appeal by the state from a judgment discharging the defendant for insufficiency of the evidence presents no question of law for determination by the Supreme Court, under section 40, Code of 1906 (section 16, Hemingway's Code).

APPEAL from circuit court of Chickasaw county.
HON. C: L. CRUM, Judge.

N. D. Adams was charged with having intoxicating liquor in his possession unlawfully. verdict of acquittal, the state appeals.

H. Cassedy Holden, for appellant.

From a directed Appeal dismissed.

The appeal is taken by virtue of paragraph 2, section 16, Hemingway's Code (section 40, Code of 1906). There seems to be some confusion in the decisions of the court relative to the right of the state to appeal in a criminal case where the defendant is acquitted in the circuit court. Whether or not this court will affirm this case, therefore, depends upon whether or not the court will follow State v. Wall, 98 Miss. 521, 54 So. 5, or Jackson v. Harland, 112 Miss. 41, 72 So. 850. The court held in the Wall case that the action of the lower court in instructing the jury to return a verdict of acquittal was subject to review under Code of 1906, section 40, on the state's appeal there being a judgment actually acquitting the accused and a question of law decided adversely to the state.

In the Harland case the court held that an acquittal, on the ground that the evidence did not show the offenses charged, did not present a question of law from which a municipality could appeal under Code of 1906, section 40, paragraph 2.

The court is also referred to the case of Water Valley v. Davis, 73 Miss. 521, 19 So. 235, where the court held that neither section 40 nor section 37, Code of 1906, authorizes an appeal by a municipality from a judgment of the circuit court discharging one arrested for violating an ordinance of a municipality. Further reference is also made to State v. Willingham, 86 Miss. 203, 38 So. 334, in which it was held by this court that the state cannot appeal from a judgment discharging a defendant on the ground that the proof was insufficient to sustain a conviction. The court is further referred to State v. Brook, 101 Miss. 661, 59 So. 860,

in which it was held that the state may not appeal from an acquittal entered on the directed verdict, of the court excluding the testimony at the close of the State's evidence.

There is no question but that the defendant in this case had intoxicating liquor in his possession (there may be some question as to whether or not one drink of liquor is intoxicating). The only question in this case is whether or not the state has a right to appeal from the action of the lower ourt in granting the defendant a peremptory instruction.

Under section 16, Hemingway's Code (section 40, Code of 1906) it is necessary that a question of law be decided adversely to the state in order that the state may appeal in a case of a directed verdict for the defendant. Was there a question of law decided against the state in this case? With all deference to the honorable district attorney, it is submitted that there was no question of law decided by the court below. The court only decided that the facts were insufficient to constitute a crime under the statute and the conclusion inevitably follows that the action of the lower court is not reversible under the decisions of this court cited above.

SMITH, C. J., delivered the opinion of the court.

The appellee was charged with having intoxicating liquor in his possession unlawfully. The court below, being of the opinion that the evidence was insufficient to sustain the charge against the appellant, instructed the jury to find him not guilty, and there was a verdict and judg ment accordingly. The state appeals.

The cause presents no question of law for determination under section 40, Code of 1906 (Hemingway's Code, section 16), and, as the attorney-general frankly admits, is controlled by State v. Willingham, 86 Miss. 203, 38 So. 334; State v. Brooks, 102 Miss. 661, 59 So. 860; State v. Moore, 103 Miss. 700, 60 So. 731; State v. Hatcher, 65 So. 511; City of Jackson v. Harland, 112 Miss. 41, 72 So. 850. Appeal dismissed.

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Syllabus.

WALKER V. STATE.

[86 South. 337. No. 21445.]

1. HOMICIDE. Conviction of manslaughter in prosecution for murder is an acquital of murder.

The verdict of a jury finding a party, put upon trial for murder, guilty of manslaughter, is an acquittal of the charge of murder.

2. HOMICIDE.

Where evidence shows either murder or homicide by accident, an instruction authorizing verdict of manslaughter is improper.

Where a party is indicted for murder, and the state's testimony in the case, if believed, convicted the defendant of murder, and the defendant's testimony, if believed, showed that the homicide was an accident, an instruction authorizing a verdict of manslaughter was improper. The defendant was either guilty of murder or nothing.

APEAL from circuit court of Tallahatchie county.
HON. W. E. STONE, Special Judge.

Woodson Walker was, convicted of manslaughter, and sentenced to a term in the penitentiary, and he appeals. Reversed, and appellant discharged.

Jas. A. Blount and James McClure, Jr., for appellant.

In the instant case all the appellant could have been convicted of was manslaughter if the evidence in the case would have supported a verdict of manslaughter, since he had once been tried for and acquitted of the crime of murder and upon this trial found guilty of manslaughter. This is a constitutional guaranty, which has long been settled by this court. Power v. State, 36 So. 6.

The sole question at issue in this case is, can the appellant be convicted of manslaughter upon the evidence introduced and upon the case made out against him by the state. We are of the opinion he cannot and that the trial court should have sustained the appellant's motion for a peremptory instruction.