Newman v. State

• Decision Date: 05 November 1894
• Citation: 72 Miss. 124,16 So. 232
• Court: Mississippi Supreme Court
• Parties: K. NEWMAN v. THE STATE

16 So. 232

72 Miss. 124

K. NEWMAN v. THE STATE

Supreme Court of Mississippi

November 5, 1894

FROM the circuit court of the second district of Panola county. HON. EUGENE JOHNSON, Judge.

Appellant was indicted for unlawfully selling intoxicating liquors. The indictment is in the usual form, and alleged that appellant "on the tenth of October, A. D. 1893, did unlawfully sell vinous, spirituous and intoxicating liquors in less quantities than one gallon, without having obtained a license," etc.

On the trial the state directed its evidence to a sale alleged to have been made at a certain barber shop. The accused then introduced two members of the grand jury which returned the indictment, who testified that the evidence before that body upon which the indictment was found, was furnished by certain witnesses whose names alone were noted on the back of the indictment, and that their testimony related exclusively to a sale alleged to have been made at a camp where staves were being made. They further testified that the alleged sale at the barber shop was inquired into, and that the grand jury refused to indict for that, but referred the matter to the next grand jury for further investigation. On the motion of the state, this testimony was excluded, and this action of the court presents the only question of law in the case.

Accused was convicted, and appeals.

Reversed.

Stone &amp Lowrey, for appellant.

1. The evidence is wholly insufficient to uphold the conviction.

2. Appellant was indicted for one offense and convicted of another. We have no statute which dispenses with the necessity of identifying the offense in the indictment, where the sale of whisky is the subject of punishment. If there were, it would be unconstitutional. Since the indictment does not specify the person sold to or the place, time becomes of the essence of the offense. If the indictment does not in some way identify the offense, its function is entirely gone. 24 Miss. 590; 69 Ib., 395. The testimony of the two grand jurors should not have been excluded. It showed that accused had been tried for an offense for which he had never been indicted. 67 Miss. 333; 55 Ib., 528.

Frank Johnston, attorney-general, for the state.

Grand jurors cannot testify as to the character of the evidence upon which an indictment was found (Smith v. State, 61 Miss. 754); nor that the Offense proved is not identical with that to which the evidence before the grand jury pointed. 1 Bish. Crim. Pro., § 872; Spratt v. State, 8 Mo. 247.

The offense in question is capable of a number of repetitions. On an indictment for unlawful retailing, accused may be convicted of any one sale made within two years prior to the indictment. King v. State, 66 Miss. 509. It is only necessary that the state elect on the trial, and confine its evidence to one sale.

OPINION

WOODS, J.

The action of the court below in excluding the evidence of the defendant's witnesses, Flint and Armstrong, members of the grand jury which returned the indictment in this case and in refusing the instructions pointing to that evidence was correct. The offense charged was a sale of liquors unlawfully to anyone, and not a sale to one particular person, and the case was made out by satisfactory proof of any sale within two years before the date of the finding of the indictment, and within the county named. Whether the sale was made to one person or another is wholly immaterial. The offense is in its character capable of endless repetition, and, as the...