35 Miss. 210 | Miss. | 1858
delivered the opinion of the court.
This was an indictment for retailing spirituous liquors without license.
1. A motion was made in the court below to quash the indictment on several grounds: 1st. Because the grand jury consisted of more than eighteen persons. 2d. Because it does not appear that they were residents of the county. 8d. Because the indictment is not indorsed by Lazarus J. Jones, the foreman of the grand jury, but by the name of L. J. Jones. This motion was overruled, and that is assigned for error.
As to the first ground of the motion, there is nothing in the record to show what number of persons constituted the grand jury; and it must therefore be presumed, in support of the judgment, that the objection was not well founded in point of fact. 2d. The indictment shows that the grand jurors were summoned and sworn to inquire in and for the body of the county, &c. In the absence of all evidence tending to show that they were not residents of the county, it must be presumed that they were duly summoned from the body of the county, and were competent to act as grand jurors. 3d. It does not appear by the record, or by any evidence, what was the name of the foreman of the grand jury; and it will therefore be presumed, that the court acted properly in overruling this ground of objection. But even if true, in point of fact, the objection is frivolous; for, although the name of the foreman was Lazarus J. Jones, yet it was competent for him to indorse the bill under his
2. Upon the trial, the court instructed the jury, that it did not devolve upon the State to prove that the defendant had no license; but, if he relied upon a license to excuse his selling by retail, it was for him to prove that he had the license; and refused to instruct, at the instance of the defendant, that, unless the State had proved that the defendant had no license, the verdict should be for the defendant.
These rulings were excepted to, but they are clearly correct. The rule is, that when a fact is peculiarly within the knowledge of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence, or of acting according to law, will not render it incumbent on the other side to prove the negative. Roscoe’s Crim. Ev. 72 (2d edit.). And, where a party was convicted of selling ale without license, upon mere proof that he had sold ale, and there being no proof that he had sold without license, the conviction was sustained, on the ground that the prosecution need not prove the negative averment; because, if there was a license, it was within the knowledge and power of the defendant, and could be immediately produced; whereas, the proof could not be made by the prosecutor without inconvenience. Grening v. The State, 1 McCord, 573.
3. The case was tried at September Term, 1857, and the jury returned a verdict against the defendant. The record shows that the court thereupon rendered judgment against him for-dollars, and the costs of the prosecution. At the next term, the District Attorney moved the court that judgment be entered against the defendant for the sum of twenty-five dollars, and that he be imprisoned in the county jail for one week, that being the judgment of the court at the previous term, but the same not having been entered of record by the clerk. The defendant being in court in person, the court ordered the judgment to be entered accordingly. It is now objected that this was error.
After the verdict was returned, it was the duty of the court to render judgment against the defendant for the penalty prescribed by law; and until that was done, the defendant was not discharged from the custody of the .law, and the jurisdiction of the court was
Judgment affirmed.