Maxey v. State

• Citation: 106 So. 353,140 Miss. 570
• Decision Date: 14 December 1925
• Docket Number: 25012
• Court: Mississippi Supreme Court
• Parties: MAXEY v. STATE. [*]

106 So. 353

140 Miss. 570

MAXEY v. STATE. ^[*]

No. 25012

Supreme Court of Mississippi

December 14, 1925

Division B

1. CRIMINAL LAW. Admitting evidence of more than one sale unless made prior to date alleged, held error; if evidence makes it uncretain whether sale proved may have occurred subsequent to date alleged, conviction wil be reversed.

Under section 2098, Hemingway's Code (section 1762, Code of 1906), it is error to admit more than one sale on the trial of a person charged with selling intoxicating liquors, unless the proof fixes such sale as having been made prior to the date alleged in the indictment. Where the evidence would leave it uncertain whether the offense, or any of those introduced, may have occurred subsequent to the date alleged in the indictment, a conviction will be reversed.

2. CRIMINAL LAW. Giving instructions after opening arguments without giving opposite party proper opportunity to comment thereon in argument is error.

It is error to give instructions after the opening of the arguments in a case without stopping the argument and calling attention to the instruction and giving the opposite party proper opportunity to comment on the instruction in argument to the jury.

3 WITNESSES. Cross-examination as to whether state's witness failed to state to grand jury that accused had sold intoxicating liquor to him held competent.

Where a witness testified for the state to an alleged sale of intoxicating liquor, and the defendant sought to examine him with reference to whether or not he was before the grand jury, and if he did not go before the grand jury and testify and if he did not fail to state to the grand jury that the defendant had made a sale of intoxicating liquor to him, it is error to exclude such evidence. In such case it is competent to introduce evidence, not only for the purpose of impeachment, but also for the purpose of affecting the credibility of the state's witness.

4. CONSTITUTIONAL LAW. Constitutionality of statute not decided unless necessary to dispose of case.

The constitutionality of a statute will not be decided, unless it is necessary to decide it to dispose of the case.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Jones county, Second District, HON. R. S. HALL, Judge.

John Maxey was convicted of selling intoxicating liquor and he appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Jeff Collins, for appellant.

The court erred in granting the fourth instruction for the state, after the case was argued by the attorneys for the defendant, and when they had no opportunity to answer same, nor had seen it, until it was read to the jury by the District Attorney. Montgomery v. State, 85 Miss. 330; 37 So. 835.

We insist that the fact that Luther Hill's and Allan Boutwell's names appeared on the indictment as the only witnesses for the state; that they were not used by the state, and two new and unheard of witnesses were used by the state, was very material as facts indicating that defendant had not had an opportunity to meet the case made by these strange witnesses, and for the court to instruct that it was immaterial was bad enough. But for it to instruct secretly, without an opportunity to answer that it was immaterial, was such error that this court ought to reverse this case.

II. The court erred in overruling the motion for the defendant to require the state to elect upon which sale of liquor it would go to the jury. Section 2098, Hemingway's Code. It is our belief that this statute violates section 26 of the Constitution; also section 31 of the Constitution. This statute is in derogation of the common law, and the right of a trial by jury, as contemplated in both sections above of the Constitution of the state, which, of course, have reference to the common-law right of a trial by jury. In the circuit court, where a person is tried on an indictment before a jury there is not any question but that if he is convicted he must be convicted by the combined verdict of twelve men; all agreeing upon the particular offense of which he is guilty. See King v. State, 6 So. 188.

This happens to be a case where the vice of this statute can be seen from several angles. It is a case where defendant was mislead as to who the witnesses against him would be. It is a case where defendant did not know, until the testimony was begun, who the witnesses against him would be. It is a case where the state gave evidence of two distinct and independent sales by two distinct witnesses. Neither of which defendant had any time to prepare to meet. As said by Judge ARNOLD in the King case above, it may be that the jury in this case were divided, perhaps some of them did not believe Golsby and convicted on the testimony of Hall. Or perhaps some of them did not believe Hall and convicted on the testimony of Golsby. If that be true, and none can say that it is not, then this defendant stands before this court convicted by a divided jury, as to the particular crime of which he is charged. So we earnestly submit that this statute is in violation of the Constitution of the state of Mississippi, and should be so declared by this court.

The provisions of the statute must be strictly construed against the state. Wadley v. State, 50 So. 494; King v. State, 54 So. 657.

The indictment charges this defendant with having sold intoxicating liquor on the 17th day of November, 1924. The witness Hall testified that he bought liquor from the defendant on the 11th day of November, 1924, or he said on Armistice Day. But the witness Golsby did not fix the date of the sale that he testified about, other than to say it was some time in November, 1924. He remembered that it was on a Saturday night. The case was tried on the 10th day of December, 1924, and between the 17th day of November, 1924, and the 10th day of December, 1924, there were several Saturdays, and there were two Saturdays after the 17th of November, 1924, in November, 1924. Either one of which could have been, and under the presumption of the innocence of defendant, would be presumed to be the Saturday night about which the witness Golsby was testifying. Therefore, the sale testified to by the witness Golsby was not "anterior" to the date laid in the indictment, as required by the statute. Harvey v. State, 49 So. 268.

Since the law requires that the same certainty must be proven with respect to other sales than the one relied on by the state, and the sale testified to by Golsby in the case before the court was not proven with any degree of certainty as to time, and since time in this case was a material matter to be proven before more than one sale could be testified to, we submit that the court erred in allowing this testimony to go to the jury. Moses v. State, 56 So. 457; Cage v. State, 62 So. 358.

F. S. Harmon, assistant attorney-general, for the state.

I. No reversible error was committed in admitting testimony of the alleged sale to Golsby. It is perfectly clear that the alleged sale to Clyde Hall, which he swore took place on Armistice Day, 1924, occurred on November 11th, a date anterior to November 17th, the date laid in the indictment, but counsel for appellant vigorously insists that it is error to permit the testimony of Golsby to go to the jury because of his failure to specify the date of the alleged sale any more definitely than "some time during the month of November, 1924."

The court will note from a reading of section 2098, Hemingway's Code, that the state is not confined to the proof of a single violation, but may introduce evidence with regard to other sales on a date anterior to the date laid in the indictment. It is true that the particular day in November is not definitely fixed, but it will be time enough for the appellant to complain if he be indicted for another sale of liquor committed any time during the month of November, 1924. Surely it may be presumed that this sale was made prior to the 17th of November in the absence of any showing to the contrary.

We state frankly, however, that this is a serious point which counsel raises. Moses v. State, 100 Miss. 346, 56 So. 457 (cited by counsel for appellant) may, however, be distinguished. There it appeared affirmatively from sworn testimony that this sale was made after the date laid in the indictment, so there was nothing for the court to do save reverse the cause. However, in the case at bar, all that we know is that the alleged sale to Golsby is said to have taken place in November, 1924, and, therefore, the record does not show affirmatively that the sale took place after the date alleged in the indictment, and failing to show this testimony was properly allowed to go to the jury, and if appellant is ever prejudiced thereby on another indictment, he can then set up the necessary proof. Unless this distinction is valid this cause must be reversed on the authority of the Moses case.

Our contention that the proof may be taken later if another charge is brought against the appellant is supported, at least partially, by some of the language in Wadley v. State, 96 Miss. 77, 50 So. 494.

Of course it is well settled that unless there be evidence of more than one sale introduced, specification as to a particular date is immaterial. Oliver v. State, 101 Miss. 382, 58 So. 6.

II. Constitutionality of statute. Counsel insists that section 2098, Hemingway's Code, is unconstitutional. This statute has been before this court time and again. We insist that it does not violate the provision guaranteeing to every man the right to demand the nature and cause of the...