Moses v. State

56 So. 457 | Miss. | 1911

McLain, C.

Appellant was convicted in the circuit court of Lincoln county for unlawful sale of liquor,-and was sentenced to pay a fine of five hundred dollars and to imprisonment for ninety days. From this judgment and sentence, she appeals to this court.

The indictment in this case was returned into the court and marked filed “January 16, 1911.” In the body of the" indictment the crime is alleged to have been committed on January 7, 1911. Felix Coleman and Bill Smith both testified that they bought whisky from appellant on January 12, 1911. Birt Coon testified that he bought whisky from appellant in March, 1910. On behalf of the state, the court instructed the jury that, if they believe from the evidence that Florence Moses sold the liquors to Coleman and Smith, then she is guilty as charged. The sale to Coleman and Smith occurred on January 12, 1911, four days prior to the finding of the indictment, and five days after the date of sale laid in the indictment.

Section 1762, Code of 1906, provides that “on the trial of all prosecutions for the violation of law by the sale or giving away of liquors, bitters, or drinks, the state shall not be confined to the proof of a single violation, but may give evidence in any one or more offenses of the same character committed anterior to the day laid in the indictment or in the affidavit, and not barred by the statute of limitations; but in such case, after conviction or acquittal , on the merits, the accused shall not again be liable to prosecution for any offense of the same character committed anterior to the day laid in the indict.ment or in the affidavit.”

This statute permits evidence of any sale within two years “anterior to the day laid in the indictment or affidavit.” "When under this statute, proof of more than one sale is admitted, proof of sales after the day laid in the indictment should not be permitted. It is true, if the indictment leaves the date blank, as in the case of Wadley v. State, 96 Miss. 77, 50 South. 494, the prosecution would be permitted to make proof of sales within two years prior to the date of the ^ finding of the indictment. The proof in this case was sufficient to convict appellant, independent of the testimony of Felix Coleman and Bill Smith; but the court, by instruction charged the jury that, if they believe from the evidence that appellant sold liquors to Coleman and Bill Smith, then she is guilty. We think this instruction was error. The sales to Coleman and Smith were made five days after the date laid in the indictment.

For this error, we think the case should be reversed.

Reversed- and remanded.

Per Curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is reversed, and the cause remanded.