Bryant v. The State
| Decision Date | 07 May 1888 |
| Citation | 4 So. 343,65 Miss. 435 |
| Court | Mississippi Supreme Court |
| Parties | J. O. BRYANT v. THE STATE |
April 1888
APPEAL from the Circuit Court of Union county, HON. W. S FEATHERSTON, Judge.
J. O Bryant was indicted under the "Local Option" Act (Acts of 1886, p. 35), for selling liquor in Union county contrary to its provisions. He was tried and convicted. It was not shown on the trial that the act above referred to had ever been put into operation in Union county. The defendant moved for a new trial on the ground that "the jury found contrary to the law and the evidence." The court overruled the motion. The defendant appealed.
Reversed and remanded.
Z. M. Stephens and Strickland & Bates, for the appellant.
There is not one scintilla of evidence to show that the Local Option Act had gone into effect in Union County; and on this point alone we rest the case and ask for a reversal. Loughridge et al. v. The State, Ms. Opinion; and Norton v. The State, ante, 297.
C. L. Bates, of counsel for the appellant, argued the case orally.
T. M. Miller, Attorney General, for the State.
In ordinary criminal cases it is quite as necessary to prove the venue in the county as to prove the main fact, yet if the failure of such proof is not made ground of a motion for a new trial, specifically this court will not notice it. Lea v. State, 64 Miss. 201. Why should not the same principle be applied to this case? If the attention of the lower court had been called to the absence of such proof, it would have granted a new trial. In the absence of such objection it must be presumed here that it was agreed or proved that the election had been held as averred in the indictment. Sec. 1433, Code 1880.
The Attorney General argued the case orally.
The offence of which appellant was convicted is charged to have been committed in violation of the Local Option Act; but there is no proof whatever of that act having been put into operation in Union county, and in such case no penalty could be imposed, or punishment inflicted, under its provisions. Norton v. The State, ante, 297; Loughridge v. The State, Ms. Opinion.
The motion for a new trial, alleging that the verdict was contrary to the law and the evidence, should have been sustained. Sec. 1433 of the Code, to the effect that no judgment shall be reversed, because of any error or omission in the case in the court below, unless the record shows that the...
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