Opinion
No. 27388.
October 29, 1928.
CRIMINAL LAW. Evidence of two distinct sales of liquor held inadmissible, where affidavit charged sale on or about specified day ( Hemingway's Code 1927, section 2252).
In prosecution for selling intoxicating liquor, evidence of two separate and distinct sales of liquor held inadmissible, under Code 1906, section 1762 (Hemingway's Code 1927, section 2252), where affidavit did not charge sale on day certain, but charged that "on or about the 18th day of January, 1928, . . . E.R. did willfully and unlawfully sell intoxicating liquor."
APPEAL from circuit court of Lee county; HON.C.P. LONG, Judge.
W.A. Blair, for appellant.
The affidavit charges the defendant was selling whiskey "on or about the 18th day of January, 1928." When testimony was offered to prove before the jury that there were two sales, one on or about the 18th day of January, 1928 or the first day of January, and the other on or about the 20th day of December the defendant's attorneys as shown by the record objected to the testimony or evidence of more than one sale. This objection was overruled by the court and the defendant excepted. See Bailey v. State, 144 Miss. 467, 110 So. 230. Under this late decision as the affidavit in the case at bar uses the same words the court below erred in admitting proof of more than one sale. See Voss v. State, 144 Miss. 825, 110 So. 670; Horton v. State, 112 So. 591.
James W. Cassedy, Jr., Assistant Attorney-General, for the state.
Counsel for the appellant assign and argue that it was error to allow the state to prove two distinct sales of intoxicating liquor because the affidavit did not specify a day certain. The evidence was introduced over the appellant's objection and exception. The cases of Bailey v. State, 144 Miss. 467, 110 So. 230, Voss v. State, 144 Miss. 825, 110 So. 670, are cited in support of appellant's contention. The court in the Bailey case held that evidence of more than one sale under an affidavit charging the sale of liquor on or about November 5, 1925, was erroneously admitted. (See section 2098, Hemingway's 1917 Code; section 2252, Hemingway's 1927 Code.)
Following the above authority this case should be reversed and remanded.
The appellant, Eldridge Robins, was convicted in the circuit court of Lee county on a charge of selling intoxicating liquor, and, from the sentence imposed, he prosecuted this appeal.
The affidavit upon which the conviction is based charged that:
"On or about the 18th day of January, 1928, . . . Eldridge Robins did wilfully and unlawfully sell intoxicating liquor," etc.
Over the objection of the appellant, the state introduced evidence of two separate and distinct sales of liquor, and at the conclusion of the evidence the court charged the jury that, if they believed from the evidence beyond a reasonable doubt, that the defendant made either or both of the sales, they should find him guilty as charged in the affidavit. And the appellant assigns as error the admission of evidence of two sales.
Section 1762 of the Code of 1906 (section 2252, Hemingway's 1927 Code) provides that:
"On the trial of all prosecutions for the violation of law by the sale or giving away of liquors, bitters, or drinks, the state shall not be confined to the proof of a single violation, but may give evidence in any one or more offences of the same character committed anterior to the day laid in the indictment or in the affidavit, and not barred by the statute of limitations."
But in the cases of Bailey v. State, 144 Miss. 467, 110 So. 230, and Voss v. State, 144 Miss. 825, 110 So. 670, it was held that this statute does not authorize the admission of evidence of more than one sale in a prosecution based upon an indictment or affidavit which does not charge a sale on a day certain. In the Bailey case, supra, the affidavit charged a sale "on or about November 5, 1925," while in the Voss case, supra, the indictment charged a sale "on the ____ day of ____, 1925." These cases are controlling here, and therefore, for the error in admitting the evidence of more than one sale of liquor, the judgment of the court below will be reversed, and the cause remanded.
Reversed and remanded.