9 Miss. 562 | Miss. | 1844
delivered the opinion of the court.
This case appears in this court by writ of error to the circuit court of Madison county.
The plaintiff in error was indicted at the November term, A. D. 1842, of the said circuit court, under the statute of 1842, entitled an “ Act to regulate the mode of obtaining license to sell vinous and spirituous liquors, and to amend the act entitled ‘ an act for the suppression of tippling houses, and to prevent the odious vice of drunkenness,’ approved February 9, 1839.” The indictment was framed upon the fifth section of said act, by which it was enacted, “ That if any person, either with or without license to retail, shall sell any vinous or spirituous liquors to any slave, without permission of his or her master, mistress, owner or overseer, he, she or they so offending, shall be subject to indictment or presentment, and, upon conviction thereof, shall pay a fine of five hundred dollars, and shall be imprisoned in the common jail of the county for a period of not less than thirty nor more than ninety days; and upon the trial of any indictment under this section, if it be proven, the person to
Yarious points were made to this court, and insisted upon as showing error in the judgment of the court below. We shall confine ourselves to one only for the purpose of judgment herein, but for general purposes and to explain our judgment, we p'ropose likewise to remark upon another point that was fully reviewed by counsel in the argument here.
It was objected below, that the court, upon the trial, refused to rule out a portion of the testimony of John D. Scott, who was introduced as a witness upon the part of the State. That portion of his testimony, where the part referred to occurs, is set forth in a bill of exceptions, thus: “ Witness asked the negro man where he got it? (a bottle of whisky,) and he said that Noonan had let him have it, and Noonan denied having sold the whisky to the negro man. That Noonan looked down and colored in the face greatly. That one Hoyle was present at this conversation, and said that Noonan did let the negro man have the whisky.” This latter statement of what Hoyle said, the court below, upon application of the defendant’s counsel there, refused to rule out from the evidence.
The propriety of the judgment of the court below upon this application, is fairly questionable here, as this court is not advised, and cannot say how muph the weight of that testimony might have effected and influenced the jury in finding their verdict. It is now insisted by the plaintiff in error, that the statement of Scott in relation to what Hoyle said, is hearsay evidence, and of a kind inadmissible upon the trial; and by the State, to have constituted a part of the res gestae and therefore legitimate evidence for the jury.
To explain the character of a transaction, not only what Was done, but what was said by all parties during the transaction, is admissible. In the celebrated trial of Lord George Gordon, the cries of the mob accompanying him were pronounced admissible to show the intention of its leaders. The principle, how
In the argument of this case, great stress was laid and much reliance seemed to be placed by the counsel for the plaintiff in error upon the insufficiency of the indictment growing out of a supposed unconstitutionality of the statute under which it was framed. As the attorney general expressed his own doubts upon the point, the court feels called upon to advance its opinion.
It is very true that under our constitution, no person can be
The statute runs against several mala prohibita, which were unknown to the common law. The substance of the offence, is the selling of vinous, or spirituous liquors to a slave, without the master’s &sc. permission, and not necessarily the selling of a particular kind of vinous or spirituous liquor to the slave of á particular individual. Every offence consists of the omission, or commission of certain acts, under certain circumstances, and all which are its necessary ingredients, must be stated. It certainly is not material to the proof of spirituous liquors, to define its particular kind by name, or to the proof of a person being a slave,.to show his master’s name. Nor is this a parrellel case-with those uncertain charges enumerated in being “common thieves,” “ common evil-doers,” and such like. It cannot be well said that no one can well know how to defend himself from so general a charge, as it is deemed, when the statute provides it in the permit of the master of the slave to whom the article is sold, nor that he cannot plead the charge in bar, or abatement of a subsequent prosecution. The evidence under a plea of autrefois, acquit or convict, is not exclusively of the record, but may be oral to the extent required in the circumstances. And where the law departs in one particular from a previous rule, it necessarily admits a proportionate relaxation in all particulars growing out of that departure.
The judgment of the court below must be reversed, and a new trial granted by the circuit court of Madison county.