Horton v. State

• Decision Date: 16 May 1927
• Docket Number: 26351
• Citation: 147 Miss. 37,112 So. 591
• Court: Mississippi Supreme Court
• Parties: HORTON v. STATE. [*]

112 So. 591

147 Miss. 37

HORTON v. STATE. ^[*]

No. 26351

Supreme Court of Mississippi

May 16, 1927

Division B

CRIMINAL LAW. Evidence of sales of intoxicating liquors subsequent to date alleged in affidavit or indictment is not admissible (Hemingway's Code, section 2098).

Where an affidavit or indictment alleges a sale of intoxicating liquors on a particular date named in the indictment, the court cannot, under section 2098, Hemingway's Code (section 1762, Code of 1906), offer in evidence sales made subsequent to the date alleged in the affidavit or the indictment.

HON. J I. STURDIVANT, Special Judge.

APPEAL from circuit court of Lee county HON. J. I. STURDIVANT Special Judge.

George Horton was convicted of selling intoxicating liquors, and he appeals. Reversed and remanded.

Judgment reversed and cause remanded.

W. A. Blair, for appellant.

The affidavit charges the defendant was selling whisky on or about October 20, 1926. The fact that the affidavit was sworn to on a different date does not give the state the right to introduce proof of sale up to and including the date that it was sworn to. November 1 simply shows the date that the officer swore to the affidavit. It does not show by any means that that is the date that the defendant is charged with the sale of the whisky.

Bailey v. State, 110 So. 230, was reversed and remanded because more than one sale was admitted in the testimony. See, also, Voss v. State, 110 So. 670. In the case at bar the court below admitted evidence of more than one sale both prior to the date laid on or before the date laid in the affidavit and afterwards; and under the two decisions above referred to, this was not admissible and the fact that the affidavit was made after the sale could not cure this error as, of course, all affidavits are made after the date of the crime.

Boggan & Leake, also, for appellant.

The court should not have allowed proof to have been made by the state of two sales, one of which was on October 27, seven days after October 20, the date fixed in the affidavit. The appellant could not plead acquittal or conviction that would protect him from further prosecution for a sale of liquor on October 27, 1926. See section 2098, Hemingway's Code. The point involved in this case was decided by this court in Moses v. State, 100 Miss. 346, 56 So. 457.

J. A. Lauderdale, Assistant Attorney-General, for the state.

The testimony for the state showed one sale about a week prior to October 20 and over the objection another sale on October 27. This case is on all-fours with Bailey v. State, 110 So. 230.

Section 2098, Hemingway's Code, provides that the state "may give evidence in any one or more offenses of the same character committed anterior to the day laid in the indictment or in the affidavit." The statute does not authorize and this court has never held that where the state has proved one sale, it may prove another sale subsequent to the day laid in the indictment. The court erred.

I submit the case.

OPINION

ETHRIDGE, J.

The appellant was convicted of selling intoxicating liquors on an affidavit, made before a justice of the peace, in which the time of the sale was alleged to have been the 20th day of October, 1926. Having been convicted in the justice court, he appealed to the circuit court, and, in the trial of the case evidence of more than one offense was offered, and admitted by the court over appellant's objection. The second offense was shown to...