54 So. 45 | La. | 1911
The indictment against defendant charges that he “did retail spirituous liquors without having first obtained a license.” It is founded upon section 910, Rev. St., reading that:
“Whoever shall keep a grog or tippling shop, or retail spirituous liquors without previously obtaining a license, shall,” &c.
A witness for defendant having testified to defendant’s general good character was asked, on cross-examination, whether defendant had not been, suspected of selling liquors without a license; and defendant objected to the question on the ground that “such testimony was irrelevant and inadmissible and an attempt to convict accused on suspicion.”
We think the question was proper. It was an inquiry touching defendant’s reputation, which defendant had put at issue. To inquire touching the rumors and suspicions about a man prevalent in the community in which he lives is to inquire touching his reputation. Rumor and suspicion, whether well or ill founded, is what reputation is made of. It is the very warp and woof of reputation. Reputation is made up not so much of what a man actually is or does as of what he is supposed or suspected to be or do. To inquire touching this prevalent suspicion was therefore practically or indeed in reality to inquire touching defendant’s reputation. A character witness may be questioned on cross-examination concerning what he has heard about defendant, though not as to his knowledge of particular acts. 12 Cyc. 416.
The indictment charged that the offense was committed on August 4, 1910. Evidence was offered to show that defendant had sold liquors on August 18, 1910. This evidence was objected to as not corresponding with the allegation. The judge overruled the objection, holding that time was not of the essence. This was correct. State v. Stover, 111 La. 92, 35 South. 405.
After evidence had thus been introduced of a sale on the ISth of August, the prosecution was allowed to offer evidence, over the objection of defendant; of a sale in the preceding December. This was on the same principle of time not being of the essence.
But, while time is not of the essence, so far as fixing a date in the indictment is concerned, it is Of the essence so far as letting defendant know at some stage or other of the trial what particular offense he is being called upon to answer. Therefore, by offering evidence of a sale made on the 18th of August, the prosecution committed itself to the sale of that date as being the one for which the defendant was being prosecuted. And, this being so, it was error to allow evidence of a sale made on a different date. The indictment being for the selling of liq
“Where on an indictment for illegal selling the prosecution has proved one unlawful sale, it is error to admit evidence of other sales.” 9 Cyc. 269.
Had the indictment been for the keeping of a grog or tippling shop, a different question might perhaps have been presented. State v. Agudo, 5 La. Ann. 185.
In a motion in arrest defendant contended that the indictment was defective, in that it did not charge that the offense had been committed within prohibition territory. That objection can hardly have been meant seriously.
The judgment is set aside, and the case is remanded for trial according to law.
