Brown v. State

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

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 &amp 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 state, both of which were correct. The rule of law as to reasonable doubt was properly stated.

Argued orally by P. H. Lowrey, for appellant, and Frank Johnston, for the state.

OPINION

WOODS, J.

We can discover no error of the court in admitting the testimony of the state's witness, Sledge, except in that particular where the defendant was said to have offered to sell whisky to the witness. This was incompetent as corroborating evidence of a sale alleged to have been made to a third party, and would doubtless have been excluded if objection had been made to it when offered. But this was not done. After the witness had finished all his evidence, the record shows to its admission the defendant excepted. If this is held to mean (which is the interpretation most favorable to the prisoner) that, after all the evidence of Sledge had been introduced, the prisoner moved to exclude it, and the court overruled the motion, and exception was taken to the court's ruling, then...

To continue reading

Request your trial
18 cases
  • Lipscomb v. State
    • United States
    • United States State Supreme Court of Mississippi
    • February 19, 1898
    ...Farmers, 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 Lewenthall, 57 Miss. 331, are some cases in our state on the subject of specific objection to ......
  • Robinson v. State
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 1910
    ......216 ROBINSON v. STATE No. 609 Supreme Court of Wyoming January 10, 1910 . . ERROR. to the District Court, Natrona County, HON. CHARLES E. CARPENTER, Judge. . . The. facts are stated in the opinion. . . . Reversed. . . M. C. Brown, for plaintiff in error. . . When. error has been committed on the trial of a cause, the trial. court should, without hesitation, grant a new trial unless. the error has been corrected in a clear and positive manner. A motion for a new trial is addressed in some degree to the. ......
  • Jones v. State
    • United States
    • United States State Supreme Court of Mississippi
    • January 22, 1923
    ...... the instruction in the case at bar tells the jury that they. must consider doubts that arise out of the evidence, 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. clear as it might have been. However, if this be true, then I. submit that any possible harm to the defendant ......
  • Kitts v. State
    • United States
    • Supreme Court of Arkansas
    • June 28, 1901
    ...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; 150 315; 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; 94 Tenn. 505......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT