Jeff Collins, for appellant.

The court erred in granting the fourth instruction for the state, after the case was argued by the attorneys for the defendant, and when they had no opportunity to answer same, nor had seen it, until it was read to the jury by the District Attorney. Montgomery v. State, 85 Miss. 330; 37 So. 835.

We insist that the fact that Luther Hill's and Allan Boutwell's names appeared on the indictment as the only witnesses for the state; that they were not used by the state, and two new and unheard of witnesses were used by the state, was very material as facts indicating that defendant had not had an opportunity to meet the case made by these strange witnesses, and for the court to instruct that it was immaterial was bad enough. But for it to instruct secretly, without an opportunity to answer, that it was immaterial, was such error that this court ought to reverse this case.

II. The court erred in overruling the motion for the defendant to require the state to elect upon which sale of liquor it would go to the jury. Section 2098, Hemingway's Code. It is our belief that this statute violates section 26 of the Constitution; also section 31 of the Constitution. This statute is in derogation of the common law, and the right of a trial by jury, as contemplated in both sections above of the Constitution of the state, which, of course, have reference to the common-law right of a trial by jury. In the circuit court, where a person is tried on an indictment before a jury there is not any question but that if he is convicted he must be convicted by the combined verdict of twelve men; all agreeing upon the particular offense of which he is guilty. See King v. State, 6 So. 188.

This happens to be a case where the vice of this statute can be seen from several angles. It is a case where defendant was mislead as to who the witnesses against him would be. It is a case where defendant did not know, until the testimony was begun, who the witnesses against him would be. It is a case where the state gave evidence of two distinct and independent sales by two distinct witnesses. Neither of which defendant had any time to prepare to meet. As said by Judge ARNOLD in the King case above, it may be that the jury in this case were divided, perhaps some of them did not believe Golsby and convicted on the testimony of Hall. Or perhaps some of them did not believe Hall and convicted on the testimony of Golsby. If that be true, and none can say that it is not, then this defendant stands before this court convicted by a divided jury, as to the particular crime of which he is charged. So we earnestly submit that this statute is in violation of the Constitution of the state of Mississippi, and should be so declared by this court.

The provisions of the statute must be strictly construed against the state. Wadley v. State, 50 So. 494; King v. State, 54 So. 657.

The indictment charges this defendant with having sold intoxicating liquor on the 17th day of November, 1924. The witness Hall testified that he bought liquor from the defendant on the 11th day of November, 1924, or he said on Armistice Day. But the witness Golsby did not fix the date of the sale that he testified about, other than to say it was some time in November, 1924. He remembered that it was on a Saturday night. The case was tried on the 10th day of December, 1924, and between the 17th day of November, 1924, and the 10th day of December, 1924, there were several Saturdays, and there were two Saturdays after the 17th of November, 1924, in November, 1924. Either one of which could have been, and under the presumption of the innocence of defendant, would be presumed to be the Saturday night about which the witness Golsby was testifying. Therefore, the sale testified to by the witness Golsby was not "anterior" to the date laid in the indictment, as required by the statute. Harvey v. State, 49 So. 268.

Since the law requires that the same certainty must be proven with respect to other sales than the one relied on by the state, and the sale testified to by Golsby in the case before the court was not proven with any degree of certainty as to time, and since time in this case was a material matter to be proven before more than one sale could be testified to, we submit that the court erred in allowing this testimony to go to the jury. Moses v. State, 56 So. 457; Cage v. State, 62 So. 358.

F.S. Harmon, assistant attorney-general, for the state.

I. No reversible error was committed in admitting testimony of the alleged sale to Golsby. It is perfectly clear that the alleged sale to Clyde Hall, which he swore took place on Armistice Day, 1924, occurred on November 11th, a date anterior to November 17th, the date laid in the indictment, but counsel for appellanit vigorously insists that it is error to permit the testimony of Golsby to go to the jury because of his failure to specify the date of the alleged sale any more definitely than "some time during the month of November, 1924."

The court will note from a reading of section 2098, Hemingway's Code, that the state is not confined to the proof of a single violation, but may introduce evidence with regard to other sales on a date anterior to the date laid in the indictment. It is true that the particular day in November is not definitely fixed, but it will be time enough for the appellant to complain if he be indicted for another sale of liquor committed any time during the month of November, 1924. Surely it may be presumed that this sale was made prior to the 17th of November in the absence of any showing to the contrary.

We state frankly, however, that this is a serious point which counsel raises. Moses v. State, 100 Miss. 346, 56 So. 457 (cited by counsel for appellant) may, however, be distinguished. There it appeared affirmatively from sworn testimony that this sale was made after the date laid in the indictment, so there was nothing for the court to do save reverse the cause. However, in the case at bar, all that we know is that the alleged sale to Golsby is said to have taken place in November, 1924, and, therefore, the record does not show affirmatively that the sale took place after the date alleged in the indictment, and failing to show this testimony was properly allowed to go to the jury, and if appellant is ever prejudiced thereby on another indictment, he can then set up the necessary proof. Unless this distinction is valid this cause must be reversed on the authority of the Moses case.

Our contention that the proof may be taken later if another charge is brought against the appellant is supported, at least partially, by some of the language in Wadley v. State, 96 Miss. 77, 50 So. 494.

Of course it is well settled that unless there be evidence of more than one sale introduced, specification as to a particular date is immaterial. Oliver v. State, 101 Miss. 382, 58 So. 6.

II. Constitutionality of statute. Counsel insists that section 2098, Hemingway's Code, is unconstitutional. This statute has been before this court time and again. We insist that it does not violate the provision guaranteeing to every man the right to demand the nature and cause of the accusation. We find nowhere in this record where appellant called for greater particularity in the indictment, so we fail to see how this issue is here presented. Peebles v. State, 63 So. 271.

III. The trial court did not err in instructing the jury that it was immaterial in the trial of this cause as to what names appeared as witnesses on the back of the indictment. On the back of the indictment appeared the name of the sheriff and one of the deputies. Neither of these gentlemen were introduced as witnesses on the trial, but the state relied on the testimony of Goolsby and Clyde Hall, and the indictment does not show affirmatively that either of these witnesses apeared before the grand jury. In the closing argument for the defense, counsel commented at length on the failure of the state to introduce either of the witnesses whose names appeared on the back of the indictment, though it seems clear that the state did not have to introduce either or both of these witnesses unless it chose. While counsel for the defense was closing his argument the district attorney secured instruction 4, and in closing for the state read this instruction. The special bill of exceptions in this case shows that this instruction was granted by the trial judge in order to answer statement made by counsel for defendant, in his argument, and that this instruction was given without giving defendant's attorney an opportunity to see or discuss this instruction. Our answer is that the attorney for the defense had no business commenting to the jury on the failure of the state to introduce the two witnesses whose names appeared on the back of the indictment, and the trial judge might here have interrupted his argument and advised the jury, but instead he handed them a two-line instruction on this point. Instead of advising the jury orally he followed a course less blunt, and simply handed them a two-line instruction, telling them that this was immaterial. But was it immaterial? We say yes. The constitutional provision securing to every defendant the right to be confronted with the witnesses against him refers solely to his right to see, hear and cross-examine witnesses actually introduced against him on the trial of the cause, and has no reference to investigations before the grand jury. 16 C.J. 836, section 2112.