State v. Clark , 145 Miss. 207 ( 1926 )

^* Corpus Juris-Cyc. References: Indictments and Informations, 31CJ, p. 821, n. 65; Intoxicating, 33CJ, p. 727, n. 22. This is an appeal by the state from a judgment sustaining a demurrer to an indictment. The indictment charged the appellee with the possession of a still "on the ____ day of December, 1923." The ground of the demurrer, as set forth therein, is that:

"The said indictment charges the defendant with no offense for the reason that said indictment fixes the date of the alleged offense as December, 1923, at a time when chapter 211 of the Laws of 1922 was in effect, and said indictment fails to negative the exceptions provided in said law."

Chapter 211 of the Laws of 1922 prohibits any person from knowingly having in his possession a still or any part thereof, except under certain designated circumstances, the existence of which must be negatived in an indictment thereunder. State v.Speaks, 132 Miss. 159, 96 So. 176; Dawsey v. State,136 Miss. 18, 100 So. 526. This statute was amended by chapter 245, Laws of 1924, by adding thereto the following provision:

"That in any indictment or presentment for any violation of this act it shall not be necessary to negative the exceptions herein contained; but such exceptions may be relied on as a defense and the burden of establishing the same shall be on the person or corporation claiming the benefits thereof."

Ordinarily, the day of the commission of an offense alleged in an indictment is not material, and its commission on any day prior to the finding of the indictment may be proved (section 1428, Code of 1906 [section 1184, Hemingway's Code]; McCarty v.State, 37 Miss. 411; Miazza v. State, 36 Miss. 613;Oliver v. State, 101 Miss. 382, 58 So. 6); but, on a demurrer to an indictment, all of the facts alleged therein, including the day of the commission of the offense, must be assumed to be true (Hodnett v. State, 66 Miss. 26, 5 So. 518.). We must assume, therefore, that the offense here charged was committed in December, 1923, at which time chapter 211, Laws of 1922, was in force; consequently, the indictment is defective for the reason that it fails to negative the exceptions contained in that statute. Chapter 245, Laws of 1924, cannot be invoked in aid of the indictment for the reason that it places a greater burden upon defendants charged with the possession of a still than does chapter 211, Laws of 1922, and to apply it here would violate section 16 of the Constitution of this state, which prohibits expost facto laws.

The court below committed no error, as the attorney-general admits, in sustaining the demurrer, and its judgment in so doing will be affirmed.

Affirmed.