58 So. 6 | Miss. | 1911
delivered the opinion of the court.
This appeal is from a conviction for the unlawful sale of intoxicating liquor. The indictment was turned into court by the grand jury on the 15th day of March, 1911, and charged that the defendant, on the 15th day of February, 1911, in said county, did unlawfully sell vinous, spirituous, malt, alcoholic, and intoxicating liqors, etc. The day on which the sale was actually made was not shown by the evidence; the witnesses, simply •.stating that it occurred some time in February, 1911.
Appellant claims that he was entitled to a peremptory instruction, for the reason that it was not shown that the sale occurred prior to the 15th day of February 1911, the day laid in the indictment. “The day on which the offense is charged to have been committed is immaterial, except in those cases where time is of the essense of the offense, or a necessary ingredient of its description; and hence, in a case not within the above exception, proof that the offense was committed -either before or after the day laid in the indictment,
Appellant has cited in support of his contention the case of Moses v. State, 56 So. 457. In that case the state, proceeding under section 1762 of the Code, introduced evidence of more than one sale, and this court held that, when that section of the Code was invoked, evidence could be given only bf sales made “anterior to the day laid in the indictment,” for the reason that it was expressly so provided in this section, which alone authorized the introduction of evidence of more than one sale. In the case at bar this section was not invoked; evidence of one sale only being’ introduced. Since evidence of one sale only was introduced in the court below, section 1762 of the Code is not brought into review by this case; consequently it is unnecessary for us to respond to appellant’s suggestion that this section is unconstitutional.
We find no reversible error in the record, and the judgment of the court below is affirmed.
Affirmed.
