Harvey v. State
| Decision Date | 24 May 1909 |
| Docket Number | 13,840 |
| Citation | 49 So. 268,95 Miss. 601 |
| Court | Mississippi Supreme Court |
| Parties | BUCK HARVEY v. STATE OF MISSISSIPPI |
FROM the circuit court of Covington county, HON. ROBERT L BULLARD, Judge.
Harvey appellant, was indicted and tried for and convicted of unlawfully selling intoxicating liquors, and appealed to the supreme court. The facts of which the opinions of the judges are predicated are sufficiently stated in them respectively.
Judgment reversed and case remanded.
W. U Mounger & Watkins & Watkins, for appellant.
Appellant was convicted upon the testimony of a negro, Ainsworth, to the effect that he had purchased whiskey from the defendant on the 5th. day of June, 1905, or thereabout and at other time, without specifying when and where. The state should have confined the proof to the sale testified to by Ainsworth on the 5th. day of June, 1905.
If the state had the right to introduce the evidence of other sales, than that testified about by Ainsworth on the 5th. day of June, 1905, then in that event, the time and place of such sales should have been specified. Under the rulings of the trial court it did not make any difference whether the sale was within two years of the indictment, whether the sale was in Covington county or in Smith county, in Texas or Mississippi, if he had ever sold whiskey to Ainsworth he was guilty. If it be admissible at all in this case to prove more than one sale, it must have been within two years of the indictment. Thomas v. Yazoo City, ante, p. 395, 48 So. 821. The court below even refused to give the defendant an instruction that the jury must believe that the sale occurred prior to the indictment. After making all these errors against the defendant the court compelled counsel for defendant to argue the case before it passed upon the instructions and refused to allow defendant's counsel to see the instructions until after they had argued the case.
George Butler, assistant attorney-general, for appellee.
Under Code 1906, § 1762 the State was not confined to any particular sale. Thomas v. Yazoo City, ante, p. 395, 48 So. 821.
It is true that the court says in Montgomery v. State, 85 Miss. 330, 37 So. 835, that the correct practice under our system is for the court to pass on all instruction asked on both sides before the argument to the jury and this doctrine was re-affirmed in the case of Boykin v. State, 86 Miss. 481, 38 So. 725.
There is nothing, however, in Code 1906, § 793, that requires the instructions to be given before the argument is begun and the practice in a great many of the states is to charge as to the law of the case after the arguments have been completed. No one gets any advantage by this procedure, the jury is not misled by comments of counsel as to what the instructions mean. In this manner the instructions appear to be the law of the case as given by the court, and not the discourse of counsel for either party.
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 appellant, that he had been purchasing whisky 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.
The admission of this testimony was, therefore, fatal error, and the judgment is reversed and case remanded.
The opinion in chief omits to make mention of a question raised by the special bill of exceptions which, in my judgment, is most important to the rights of litigants. While I concur in the opinion of the majority, yet it is my judgment that the opinion should assign as the important and prominent cause for reversal the action of the court as shown by the special bill of exceptions, since it is my judgment that the court exceeded its power, both when it refused to pass on the instructions before argument and additionally when it refused to let the instructions be read to the jury until after the argument was made. I should feel bound under the law to insist on the reversal of any cause where the trial judge refused to act on the instructions until after...
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