Winningham v. State

• Decision Date: 03 March 1930
• Docket Number: 28391
• Citation: 126 So. 477,156 Miss. 659
• Court: Mississippi Supreme Court
• Parties: WINNINGHAM v. STATE

126 So. 477

156 Miss. 659

WINNINGHAM v. STATE

No. 28391

Supreme Court of Mississippi

March 3, 1930

Division B

1. INDICTMENT AND INFORMATION. Where date of crime of selling liauor was not laid in indictment, evidence of more than one sale was not admissible (Hemingway's Code 1927, section 2252). Where indictment charged unlawful sale of intoxicating liquor in language "W. W. on the ------ day of---- 1925," and thus did not lay date of crime, evidence of more than one sale was not admissible under Code 1906 section 1762 (Hemingway's Code 1927, section 2252) providing that in liquor prosecution state shall not be confined to proof of single violation, but may give evidence of any one or more offenses of same character committed anterior to day laid in indictment, but that accused shall not again be liable to prosecution for any offense of same character committed anterior to day laid in indictment.

2. INTOXICATING LIQUORS. Whether Jamaica ginger was an intoxicating liquor held for jury.

In prosecution for unlawful sale of an intoxicating liquor, question whether Jamaica ginger was intoxicating was one for jury, and court improperly instructed jury that Jamaica ginger was per se an intoxicating liquor.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Simpson county HON. W. L. CRANFORD, Judge.

Will Winningham was convicted of the unlawful sale of an intoxicating liquor, and he appeals. Reversed and remanded.

Reversed and remanded.

J. P. & A. K. Edwards, of Mendenhall, for appellant.

Where the date of the sale is left blank, evidence of one sale only can be given.

Bailey v. State, 110 So. 230; Cage v. State, 105 Miss. 326, 62 So. 358; Prince v. State, 141 Miss. 667, 107 So. 280.

As to whether Jamaica ginger is intoxicating is a matter of evidence and the burden of proof is on the state to prove it beyond every reasonable doubt.

Young v. State, 127 Miss. 188, 102 So. 161, 36 A.L.R. 717.

W. A. Shipman, Assistant Attorney-General, for the State.

We submit to the consideration of the court the following cases without argument:

Kittrell v. State, 89 Miss. 666, 42 So. 609; Section 1762, Code of 1906; Harvey v. State, 95 Miss. 601, 49 So. 268; Wadley v. State, 96 Miss. 77, 50 So. 494; Moses v. State, 100 Miss. 346, 56 So. 457; Cage v. State, 105 Miss. 326, 62 So. 358; Maxey v. State, 140 Miss. 570, 106 So. 353; Prine v. State, 141 Miss. 667; Bailey v. State, 144 Miss. 467, 110 So. 230; McLaurin v. State, 113 So. 445.

OPINION

Anderson, J.

Appellant was indicted and convicted in the circuit court of Simpson county of the unlawful sale of an intoxicating liquor, Jamaica ginger, and was sentenced to pay a fine of two hundred fifty dollars, and thirty days in jail; and from that judgment appellant prosecutes this appeal.

The indictment charged the date of the commission of the offense in this language: "Will Winningham on the day of , 1925." The court, over appellant's objection, admitted evidence of more than one sale. Section 1762, Code of 1906, section 2252, Hemingway's Code 1927, is in this language: "On the trial of all prosecutions for the violation of law by the sale or giving away of liquors, bitters, or drinks, the state shall not be confined to the proof of a single violation, but 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, and not barred by the statute of limitations; but in such case, after conviction or acquittal on the merits, the accused shall not again be liable to prosecution for any offense of the same character committed anterior to the day laid in the indictment or in the affidavit."

It will be observed that the last clause of the statute provides that the accused "shall not again be liable to prosecution for any offense of the same character committed anterior to the day laid in the indictment or in the affidavit."

In allowing the state to prove more than one offense of the same character, the statute made a radical change in the law, a change much to the disadvantage of the defendant. But in order to protect the defendant against another prosecution for the same offense, it provides that there shall be no prosecution for any offense of the same character committed prior to the day...