Brown v. State

CourtMississippi Supreme Court
Writing for the CourtWOODS, J.
Citation72 Miss. 95,16 So. 202
Decision Date05 November 1894
PartiesJULY BROWN v. THE STATE

16 So. 202

72 Miss. 95

JULY BROWN
v.
THE STATE

Supreme Court of Mississippi

November 5, 1894


FROM the circuit court of Panola county, second district. HON. EUGENE JOHNSON, Judge.

Appeal from a conviction on a charge of unlawfully retailing intoxicating liquors. The opinion contains a sufficient statement of the case to indicate the questions decided.

Reversed.

Stone & Lowrey, for appellant.

1. The testimony of the witness, Sledge, was incompetent, and should have been excluded. It has been repeatedly held that testimony of another sale than that for which defendant is on trial is inadmissible. King v. State, 66 Miss. 502; Bailey v. State, 67 Ib., 333; Naul v. McComb City, 70 Ib., 699. The testimony that defendant had made one sale of liquor is not corroborative evidence of another and distinct sale. Lea v. State, 64 Miss. 278.

2. The instruction for the state defining a reasonable doubt is erroneous. It was equivalent to telling the jury that if it believed the defendant guilty, there was no reasonable doubt. Inserting the word "conscientiously" does not change the meaning. That which is not according to the dictates of conscience is no belief.

3. The plea of former acquittal should have been sustained. On the former trial, the defendant might have been convicted of the offense here charged, and the two indictments were identical. Under either the defendant could have been convicted of a sale at any time within two years. The correct rule is announced in Murphy v. State, 24 Miss. 590.

When the name of the party to whom the sale is made is not charged, then the time charged becomes material to identify the offense. In Lea v. State, supra, a contrary rule is hinted at, but we are slow to believe that, on a square presentation of the issue, this court will go to the extent of holding that a man can be forced to defend himself on an indictment charging the sale at any time within two years, without any possible identification of time, place, or person. If two indictments are good for two trials, then an indefinite number would be good, and the defendant might, in each case, be tried for a crime the grand jury had never presented him for.

Frank Johnston, attorney-general, for the state.

1. To sustain the plea of former acquittal, it is necessary to show the record in the former proceedings, and, further, to prove the identity of the offense. Rocco v. State, 37 Miss. 357.

2. Only two instructions were given for the...

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15 practice notes
  • Lipscomb v. State
    • United States
    • Mississippi Supreme Court
    • February 19, 1898
    ...77 Cal. 1, held that specific objections should be made to the parts which are incompetent. 96 Tenn., 209, App. 213, 214. Brown v. State, 72 Miss. 95; Mills v. Smith, 69 Miss. 299; Decell v. Lewenthall, 57 Miss. 331, are some cases in our state on the subject of specific objection to eviden......
  • Robinson v. State, 609
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 1910
    ...105 Ia. 38; Lane v. State, 151 Ind. 511; State v. Rowfischet, 12 La. Ann. 382; Goldman v. State, 75 Maryland, 621; Brown v. State, 72 Miss. 95; Dick v. State, 30 Miss. 95; State v. McAfee, 148 Mo. 370; State v. Rapp, 142 Mo. 443; State v. Marks, 140 Mo. 656; State v. Arnewine, 36 Mo. 130; P......
  • Jones v. State, 23122
    • United States
    • United States State Supreme Court of Mississippi
    • January 22, 1923
    ...or the want of evidence. Chief Justice SMITH rendered the opinion in the Smith case, supra, at page 371. [130 Miss. 709] Brown v. State, 72 Miss. 95, 16 So. 202, and Burt v. State, 72 Miss. 408, 16 So. 342, 48 Am. St. Rep. 563. It might be said that the instruction in question is not as cle......
  • Kitts v. State
    • United States
    • Supreme Court of Arkansas
    • June 28, 1901
    ...record of a former acquittal or conviction is the only competent evidence of the same. 105 Ind. 589; 5 N.E. 735; 26 Ga. 579; 101 Mass. 25; 72 Miss. 95; 16 So. 202; 150 Mass. 315; 23 N.E. 47; 84 Me. 436; 24 A. 985; 34 S.C. 16; 12 S.E. 619; 43 Minn. 196; 45 N.W. 152; 121 Mo. 566; 26 S.W. 901;......
  • Request a trial to view additional results
15 cases
  • Lipscomb v. State
    • United States
    • Mississippi Supreme Court
    • February 19, 1898
    ...77 Cal. 1, held that specific objections should be made to the parts which are incompetent. 96 Tenn., 209, App. 213, 214. Brown v. State, 72 Miss. 95; Mills v. Smith, 69 Miss. 299; Decell v. Lewenthall, 57 Miss. 331, are some cases in our state on the subject of specific objection to eviden......
  • Robinson v. State, 609
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 1910
    ...105 Ia. 38; Lane v. State, 151 Ind. 511; State v. Rowfischet, 12 La. Ann. 382; Goldman v. State, 75 Maryland, 621; Brown v. State, 72 Miss. 95; Dick v. State, 30 Miss. 95; State v. McAfee, 148 Mo. 370; State v. Rapp, 142 Mo. 443; State v. Marks, 140 Mo. 656; State v. Arnewine, 36 Mo. 130; P......
  • Jones v. State, 23122
    • United States
    • United States State Supreme Court of Mississippi
    • January 22, 1923
    ...or the want of evidence. Chief Justice SMITH rendered the opinion in the Smith case, supra, at page 371. [130 Miss. 709] Brown v. State, 72 Miss. 95, 16 So. 202, and Burt v. State, 72 Miss. 408, 16 So. 342, 48 Am. St. Rep. 563. It might be said that the instruction in question is not as cle......
  • Kitts v. State
    • United States
    • Supreme Court of Arkansas
    • June 28, 1901
    ...record of a former acquittal or conviction is the only competent evidence of the same. 105 Ind. 589; 5 N.E. 735; 26 Ga. 579; 101 Mass. 25; 72 Miss. 95; 16 So. 202; 150 Mass. 315; 23 N.E. 47; 84 Me. 436; 24 A. 985; 34 S.C. 16; 12 S.E. 619; 43 Minn. 196; 45 N.W. 152; 121 Mo. 566; 26 S.W. 901;......
  • Request a trial to view additional results

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