Smith v. State

Nov 29, 1926
No. 25954.
Versions:110 So. 690
144 Miss. 872
1926 Miss. LEXIS 424
*875 McGowen, J.,

delivered the opinion of the court.

Appellant, John Smith, was convicted of having whisky in a greater quantity than one quart in his possession. The indictment charged that John Smith and Bonnie Jean Johns had the whisky in possession on the 4th day of April, 1926. The indictment was returned into open court on May 5, 1926,' and filed on that day. The proof showed that on the 2d day of May, 1926, officers of the law were lying in wait near a little church in the region of McLaurin, Miss., and in close proximity to a certain gopher hole in which they found secreted a pint, bottle of whisky. Pretty soon John Smith, • defendant, and Miss Bonnie Jean Johns drove up to that, point in a Ford car and alighted. John handed Miss Bonnie Jean six one-quart jars. She walked over in the direction of the officers and set .the jars on the ground. About that time the officers appeared on the scene. She picked up one jar and threw it against the remaining five sitting on the ground, thereby breaking all these containers. The officers managed to save some of the liquor remaining in the broken pieces of the fruit jars. In the meantime, the officers saw the defendant take three other fruit jars *876 across the road toward a certain log, where it later appeared that John had hidden the liquor. "When Miss Bonnie Jean saw the officers approaching, she screamed “Oh, John!” and John went running toward them in an offensive manner. The officers, thinking he was about ■to produce a gun and make fight, ordered him to consider himself under arrest. A gun was found at the place where he was ordered to consider himself under arrest. Miss Bonnie Jean pleaded guilty and testified against John. She testified that John had agreed to carry her over to a neighbor’s to get a purse in consideration of her assistance in hiding the liquor. The jury convicted John, and the court sentenced him to serve ninety days in jail and pay a fine of five hundred dollars.

The main point assigned as error by counsel for appellant is that the indictment charging that the liquor was in possession of the defendants on the 4th day of April, 1926, and the proof subsequent to that date, was incompetent, and relies mainly on the case of Maxey v. State, 140 Miss. 571, 106 So. 353, wherein the court held that, under an indictment for the sale of intoxicating liquors, it was error to admit proof of more than one sale, unless that proof fixed such sale as having been made prior to the date alleged in the indictment; that, where the evidence would leave it uncertain, whether the sale, or any of those introduced, may have occurred subsequent to the date alleged in the indictment, a conviction would be reversed. It will be observed that the indictment and proof thereunder was predicated upon a sale of liquor and the proof of other sales, under section 1762, Code of 1906 (section 2098, Hemingway’s Code), in which class of cases the statute provides that other sales anterior to the date of the indictment may be offered. To the same effect, more clearly stated, is the case of Florence Moses v. State, 100 Miss. 346, 56 So. 457.

The precise point here is covered by section 1428, Code of 1906 (section 1184, Hemingway’s Code), which provides that the day on which it is charged in the indict *877 ment that the offense was committed is immaterial, except in those cases where time is of the essence of the offense or a necessary ' ingredient of the description thereof.

In Oliver v. State, 101 Miss. 382, 58 So. 6, this court held that time was not of the essence of the offense, unless section 1762 was invoked by the state, even in a prosecution for the sale of intoxicating liquors. Here the crime charged was not a sale but having in possession intoxicating liquor, and time is not of the essence of the offense. Proof of possession may be offered subsequent to the date alleged in the indictment, and prior to the finding of the indictment or affidavit, provided the same is within two years. Section 1762, supra, has no application in a prosecution for having in possession intoxicating liquors. See, also, Miazza v. State, 36 Miss. 613, and McCarty v. State, 37 Miss. 411. The proof of what occurred while the defendant and his young lady friend were there hiding the liquor, including his having a pistol, was competent as a part of the transaction. Likewise, the proof of the contents of the jars and the pieces of broken jars was competent, in the light of Miss Bonnie Jean’s testimony.

We think this defendant had a fair and impartial trial by a fair and impartial jury, that there is no reversible error in the record, and that the jury reached the proper conclusion in its verdict, and we do not feel inclined to disturb it.

Affirmed.