Cagle v. State

• Decision Date: 22 December 1913
• Citation: 63 So. 672,106 Miss. 370
• Court: Mississippi Supreme Court
• Parties: FRANK CAGLE v. STATE

63 So. 672

106 Miss. 370

FRANK CAGLE v. STATE

Supreme Court of Mississippi

December 22, 1913

October 1913

APPEAL fro the circuit court of Alcorn county, HON. CLAUDE CLAYTON Judge.

Frank Cagle was convicted of the unlawful sale of intoxicating liquors and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

W. C Sweat, for appellant.

When the state rested its case the appellant moved the court to require the state to elect on which sale it would ask a conviction. This motion the court overruled. The conviction could not have rested and been sustained on the testimony of Deloach for it had failed to show by him that the sale took place inside the corporate limits and had also failed to show by him that the sale took place prior to the date laid in the affidavit. A conviction could not have rested and been sustained on the evidence with reference to the other alleged sale for the reason that the testimony was too indefinite in that case about when the sale took place, it not having been shown that the sale took place prior to February 19th by one witness and nothing at all having been shown about when it took place by the other witness. If a conviction could not have been rested on either of the aforesaid sales it certainly could not have rested and been sustained on both of the alleged sales put together.

Under the authority of Harvey v. The State, 95 Miss. 601 this case should be reversed and remanded. SMITH, J., delivering the opinion of the court in that instance said: "Appellant was convicted in the court below on an indictment charging him with the unlawful sale of intoxicating liquors. One such sale was shown by the evidence of the witness, Ainsworth, who was then permitted to testify, over the objection of the appellant, that he had been purchasing whiskey from appellant prior to the time of said sale, without specifying any particular sale or when or where the same took place. This action of the court, among other things, is assigned as error.

"There was a sharp conflict in the evidence. It is true that under section 1762 of the Code of 1906, the state, on the trial of a case of this character, is not confined to proof of a single sale; but, if proof of other sales is made, it must appear that they are not barred by the statute of limitations, and they must be proven with the same degree of certainty that the one sale necessary to convict must be proven."

If it must be made to appear from the testimony with certainty that the alleged sales are not barred by the statute of limitations it certainly must be made to appear with an equal degree of certainty that the sales were made prior to the date laid in the affidavit or in the indictment as the case may be.

In the case above referred to it was not made to appear with any degree of certainty that the alleged sales were not barred by the statute of limitations and the court said the cause must be reversed on this ground. In the present instance it is not made to...