71 Miss. 204 | Miss. | 1893
delivered the opinion of the court.
The appellants were jointly indicted for unlawful retailing. They were charged, necessarily, with a single offense. Evidence of numerous sales, said to have been made by the one or the other of the appellants, was introduced over their objection. At the conclusion of the introduction of the state’s testimony, the court required the district attorney to elect the sales he would rely on, and thereupon he elected to rely upon two sales claimed to have been made — one by G. L. Ware to McLemore and the other by T. P. Ware to Davis; and then the court instructed the jury that those two sales, and those only, were charged in the indictment, and for those only were the defendants to be tried.
All this was erroneous. Evidence of any sales other than the one said by the witness, Norton, to have been made to the negro, Joe Jeff, should have been excluded. The state should have been required to confine its evidence to that first sale so proved by the witness, Norton, to have been made. The defendants were charged with the commission of one offense, and not a dozen, and not two even, as the court below, at length, determined.
It results from this view that the action of the court in giving the three instructions asked by the state was error also. See King v. State, 66 Miss., 502; Bailey v. State, 67 Ib., 333; and Naul v. McComb City, 70 Ib., 699.
Reversed and remanded.