Miazza v. State

Harris, J.:

Plaintiff in error was indicted for selling spirituous liquors in less quantity than one gallon, without license therefor.

A plea in abatement was filed, denying that the presiding judge was judge of the Hinds Circuit Court, &c. To which there was replication, a demurrer to the replication, demurrer overruled, issue, and jury, and verdict for the state, and judgment that plaintiff in error answer over; who thereupon plead not guilty. Motion in arrest of judgment, and for a new trial. Motion overruled, and sentence and judgment pronounced. Writ of error was then sued out, and cause brought here.

The position taken by counsel for the plaintiff.in error, on the trial of the plea in abatement, that it is not competent for the legislature to reorganize the judicial districts of the state so as to transfer a circuit judge out of the district in which he was elected, to another and a different district, is wholly untenable. s The constitution itself makes provision for “interchange of circuits, in such manner as may be prescribed by law.” It was no part, therefore, of the policy of its framers, as contended for, that the people of each district should be confined to the judge elected by them. The election of judges by the people had reference to other and more important objects.

We think there was no error in the instruction of the court on this point; nor was there any error in overruling the plaintiff’s demurrer to the replication to his plea in abatement. It briefly but substantially presented the true issue.

It is next insisted that the court erred in refusing to charge" the jui-y that, “ if the testimony does not show that the offense named in the indictment was committed on the day named therein, the jury must find the defendant not guilty.” This instruction was properly refused. Time is not material, except where it is the essence of the offense (or a necessary ingredient of it); it may be' laid any day previous to the finding of the indictment, during the period within which the offense may be. *1208 prosecuted. Wharton’s Am. Cr. L., § 261, and authorities cited; Miller v. State, 33 Miss. R., 360 .

The motion in arrest of judgment, on the ground that other indictments of similar import were then pending in the same court against the same defendant, was properly overruled. There is no analogy between the principles held in the case of Murphy v. State, referred to, and the case at bar. The evidence in Murphy v. State was held insufficient, because it did not identify the offense. Here no such difficulty exists — the defendant Knows whether he had license or not. Nor can the defendant be prejudiced by any number of indictments for similar other offenses. One conviction for each distinct offense can only be had, and may be plead in bar of any subsequent attempt to retry him for the same offense for which he has once been convicted or acquitted.

We see no error in their proceedings, except that judgment final should have been rendered against the plaintiff in error on the verdict of the jury against him, on his plea in abatement, instead of respondeat ouster, and of this he cannot complain.

Let the judgment be affirmed.

A re-argument was asked for, and refused.