Lea v. State

1. BETAiuirQ- Liquor. Indictment for, whether double. An indictment is not had as being double, because it charges in the same count the unlawful sale of “vinous and spirituous- liquors.” Murphy v. The State, 28 Miss. 637, cited. 2. Same. Indictment for. Name of person to whom liquor sold. Effect of omission of. In an indictment for retailing liquors without license, it is not necessary to set out the name of the person to whom such liquors were sold, since the statute in such case forbids the sale irrespective of persons. 3. Criminai. Practice. Failure to'prove venue. How objected to. Section 1433, Code of 1880, applied. Under \ 1433, Code of 1880, which provides that a judgment in a criminal case shall not be reversed “ because of any error or omission in the case in the court below, unless the record shows that the errors complained of were made a ground of special exception in such court,” this court will not reverse a judgment where a defendant is convicted of retailing liquors without license, because no proof of venue was made, unless the point was brought specially to the attention of the court below and not generally by a motion for a new trial on the ground that verdict was contrary to the law and the evidence.

Appeal from the Circuit Court of Tate County. Hoh. A. T. Roane, Judge. L. C. Lea was indicted at the April term, 1885, of the Circuit Court of Tate County for retailing vinous and spirituous liquors without license. The indictment charges that L. C. Lea, on April 6,1885, “in the county of Tate aforesaid and State aforesaid, unlawfully did sell vinous and spirituous liquors in a less quantity than one gallon without having a license so to do.” The defendant moved to quash the indictment (1) because it is double in charging the sale of different kinds of liquors; (2) because the indictment fails to set out the name of the party or parties to whom the liquors were sold. The court overruled this motion. No evidence as to when the liquors were sold was introduced on the trial. The jury found the defendant guilty. He then moved for a new trial on the ground that the verdict of the jury “ is contrary to the law and the evidence.” The court overruled the motion and the defendant appealed. 1. There is nothing in this indictment that in any manner locates or points out the specific selling of liquors that the defendant is called upon to defend against, unless it be the allegation of the time of the sale, the fourth day of April, 1886. But time not being of the essence of this offense, the statement of it is not and was not intended by the pleader to be a part of the description of the crime. Code, § 3013 ; Miazza v. The State, 36 Miss. 615. Under this indictment, the defendant could have been tried for any single offense of selling whisky which occurred at any time within two years next before the finding of this indictment, whether it was the same offense for which he was presented by the grand jury or not. Is this the spirit and intention of the law upon this point ? Murphy v. The State, 24 Miss. 593; Shabe Williams v. The State, 42 Miss. 329. We are aware that the point we here press has been adversely decided in an elaborate opinion by the court in case of Riley v. The State, 43 Miss. 412, and tacitly taken for established against us in the case of Miazza v. The State, 36 Miss. 615. We ask the court to carefully examine these cases and reconsider this question. We submit that there is no more reason in trying a defendant upon a general and sweeping charge of whisky selling than there would be in trying him upon' a general and sweeping charge of murder. 2. There is a total want of proof of venue in this case. If we are mistaken upon all other points, we ask for a reversal upon this. Thompson v. The State, 51 Miss. 353. T. M. Miller, Attorney General, for the State. To support the indictment I am content to rely on Riley v. The State, 43 Miss. 397, and the cases therein reviewed. Nothing can be better settled in this State. See also 2 Wharton C. L., § 2445. Presumably when the later constitution was adopted the views of the courts upon the sufficiency of indictments of this character to inform the accused of the “ nature and cause of the accusation ” were well understood, yet that instrument was not altered in the particular considered. Since to maintain the plea of former jeopardy it is permissible in thesé cases to go outside the record to show the proof made, no harm can be done the defendant. See Noonan v. The State, 1 S. & M. 562. Another protection is afforded to the accused under indictments in this form, and that is where the evidence discloses several successive offenses, any one of which would sustain a conviction, the prosecution (unless the charge is for a continuous offense) must elect the offense which it will pursue, and when this is done proof of the others will be excluded. Wharton on Cr. Ev., § 104, and cases cited.