Smith v. State, 49 So. 113

49 So. 113 | Miss. | 1908

Eletcher, J.,

delivered the opinion of the court.

The indictment in this case charges appellant with the sale of “vinous and spirituous liquors.” It is to be particularly noted that there is no use of the comprehensive term “intoxicating liquors,” nor is there any charge of selling “malt liquors.” The proof tended to show that appellant sold two bottles of what purported to be beer, but the .witnesses did not taste the substance. The court charged the jury, at the instance of the state, that if the jury believed that the defendant sold beer to the witness Case a verdict of guilty should be returned. It is impossible to uphold this conviction in the light of the allegations of the indictment. The state did not charge, as it might have done, that defendant sold alcoholic or intoxicating liquors. It elected to select two particular varities of intoxicating liquors, spirituous and vinous, and the proof must conform to the allegations. There can be no serious doubt that beer, as commonly prepared, is a malt liquor, as distinguished from spirituous and vinous liquors. Boswell v. State (Miss.), 12 South. 446. The question is analogous to the one involved in Tyler v. State, 69 Miss. 395, 11 South. 25, in which it was held that, if the indictment undertakes to do the unnecessary thing of setting out the persons to whom the sale .was made, then proof must conform to the allegations in these particulars.

Reversed and remanded. .