22 W. Va. 759 | W. Va. | 1883
Tn June, 1881, Patrick Ferrell was indicted by the circuit court, of Ritchie county for selling liquor without a license. The indictment charged, that the offence was committed at “his grocery in the town of Pennsboro in said county on the 20th day of June, 1881.” The defendant moved to quash the indictment, which motion was overruled; and he pleaded not guilty. The case was tried before a jury, and a verdict was rendered for a fine of fifty dollars. The defendant
It is insisted the verdict ought to have been set aside, because the facts proved show, that, if there was a sale of liquor by defendant, it was not on the day alleged in the indictment. No authority is shown for this position, and we believe none .can be found. If the sale was within a year from the finding of the indictment it is sufficient. It is not necessary upon the trial of a defendant for selling liquor contrary to law, to prove that the sale was made on the day alleged in the indictment, it is sufficient, if it was made at any time within one year prior to the finding of the indictment.
Again it is insisted, that the facts proved show, that if any sale was made, it was made at a place different from that alleged in the indictment. The indictment alleges, that it was. at the “grocery” of defendant, and the proof shows that it was in a room adjoining the “grocery,” and the jury had the right to infer, that it connected wjth the grocery and was a part thereof. Here was no variance.
But it is insisted, that no sale was proved. The Attorney-General has conceded this point, and with him we agree. The certificate of facts shows, that the liquor was procured from a room adjoining the grocery-store, “in which room there was a bed and some boxes,” and witness” found a box, in which there was some whisky in a bottle or jug, poured out a drink, drank it, laid ten cents down on a box or barrel and walked out; that the grocery-store, the room in which he found the whisky, and the bed-room were all under the same roof, and the house was owned and occupied by the defendant, Patrick Ferrell; that on cross-examination of the witness, II. II. Collins, by the defendant’s counsel the said witness stated, that he had never at any time bought any whisky of Patrick Ferrell, the defendant.” The bed-room referred to was Patrick Ferrell’s bed-room. It is described by II. IT. Collins as follows: “I went into a room * * occupied by defendant, between the grocery-store and a room occupied
The judgment is reversed, and a new trial awarded, and the case remanded.
REVERSED. REMANDED.