49 So. 268 | Miss. | 1909
Lead Opinion
delivered the opinion of the court.
Appellant was convicted in the court below on an indictment charging him with the unlawful sale of intoxicating liquors. One such sale was shown by the evidence of the witness Ainsworth, who was then permitted to testify, over the objection of appellant, that he had been purchasing whisky from appellant prior to the time of said sale, without specifying any particular sale, or when or where the same took place. This action of the pourt, among other things, is assigned as error.
There was a sharp conflict in the evidence. It is true that under section 1762 of the Code of 1906 the state, on the trial of a case of this character, is not confined to proof of a single
The admission of this testimony was, therefore, fatal error, and the judgment is reversed and case remanded.
Concurrence Opinion
delivered the following specially concurring opinion.
The opinion in chief omits to make mention of a question raised b'y the special bill of exceptions which, in my judgment, is most important to the rights- of litigants. While I concur in the opinion of the majority, yet it is my judgment that the opinion should assign as the important and prominent cause for reversal the action of the court as shown by the special bill of exceptions, since it is my judgment that the court exceeded its power, both when it refused to- pass on the instructions before argument and additionally when it refused to let the instructions be read to the jury until after the argument was made. I should feel bound under the law to insist on the reversal of any cause where the trial judge refused to act on the instructions until after argument to the jury, or where he has acted, but refuses to let the instructions be read to the jury until after the case is argued to them. Under the law I think the litigants have this right, and that it cannot, in any case, be denied them.
The special bill of exceptions shows the following, viz.: “Before the instruction's were passed upon by the court, the court ordered counsel to proceed to the argument. The defendant objected to the argument being made before the instructions were passed upon by the court and given to counsel, which objection the court overruled, to which action of the court the defendant then and there excepted and still excepts. And before beginning the argument for the defense, counsel for the defendant-requested the court to- give him the instructions for the defendant, in order that he might read them to the jury during
It is true that section 793 of the Code of 1906 does not say in express terms that the instructions shall be given by the court and read to the jury before the argument begins; but a review of the practice'which existed before there was any statute on this subject, if tradition be true, coupled with the contemporaneous construction of the statute by the courts as evidenced by the unbroken practice of giving and reading instructions to the jury before argument, constitutes enough precedent to declare that such is the law. Before there was any statute, it was the practice for the attorneys to read from law books to the jury in connection with their argument of the facts. In Hutch. Code,