King v. State , 66 Miss. 502 ( 1889 )

Arnold, C. J.,

delivered the opinion of the court.

The indictment is sufficient. It was not necessary to allege in it, that the sale was made in a public place, or for the purpose of inducing trade.

Manifestly, the act of 1888, on which the indictment was framed, prohibits selling, whether in a public or private place, and without reference to the purpose for which the sale may be made.. The terms “ public place,” and “ inducing trade,” used in the statute, apply to giving away, and not to selling.

After the state had proved distinctly, one unlawful sale, it was-error to admit testimony of other and different sales. The general rule is, that the issue on a criminal trial, shall be single, and that the testimony must be confined to the issue, and that on the trial of a person for one offense, the prosecution cannot aid the proof against him, by showing that he committed other offenses. Whart. Cr. Ev., § 104; 1 Bish. Cr. Pro., § 1120 et seq. The reason and. justice of the rule is apparent, and its observance is necessary to-prevent injustice and oppression in criminal prosecutions. Such evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him.

“ To permit such evidence,” says Bishop, “ would be to put a man’s whole life in issue on a charge of a single wrongful act, and crush him by irrelevant matter, which he could not be prepared to meet.” 1 Bish. Cr. Pro., § 1124.

There are exceptions to the rule which has been stated — such as where the offense charged and that offered to be proved, are so connected as to constitute but one transaction, or where it is necessary to identify the offender, or where it is material to prove motive, and there is apparent relation or connection between the act proposed to be proved and that charged, or where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge, and the like — but none of these exceptions apply here. 1 Bish. Cr. Pro., §§ 1124-1129; Gassenheimer v. The State, 52 Ala. 313; The State v. Crimmins, 31 Kan. 376; Lebovitz v. The State, 113 Ind. 26, and authorities there cited. Where there are several offenses, for either one of which the accused may be convicted under the indictment, the prosecution should elect the offense which it will pursue, and the testimony should be confined to that offense, unless the case is within some of the exceptions, which render the proof of other distinct offenses admissible. After one offense is proved, the prosecution should not have liberty of the wind, to blow where it listeth. The authorities are not harmonious as to when the prosecution will be-required to make election in such case, or as to how long a prosecuting officer will be permitted “ to fish with his witnesses for evidence ” before selecting the offense for wdiich he will ask conviction ; but it is believed that justice is best promoted by allowing the testimony for the prosecution to go far enough to identify and show one distinct offense, and when this is done, to restrict the evidence to that offense. 1 Bish. Cr. Pro., § 462; Whart. Cr. Ev., § 104.

The suggestion that appellant’s conviction of either of the sales given in evidence in this case, would operate as a bar against his being subsequently prosecuted for the others, does not meet the objection made by him. He is not now looking out for barriers against other prosecutions, but is complaining of injustice being done in his present conviction. He claims that he ought not to have been convicted at all, and if his conviction has been reached by improper methods, it is no answer to say to him, that if his conviction is allowed to stand, he cannot be convicted of the other sales.

How would this view satisfy the requirements of the statute? The statute contemplates that every violation of its provisions, shall be punished, but if on a charge of a single illegal sale there is evidence of numerous distinct unlawful sales, for only one of which the defendant can be convicted on that trial, and the conviction in the single case is a bar to prosecution for the rest, no greater penalty would be incurred .for many sales, than for a single sale, and the purpose of the statute, by such administration, would be to a great extent, defeated. Such result ivas never intended by the statute.

But what is of greater consequence to a defendant charged Avitli a single offense, against whom evidence of numerous and different offenses has been admitted, is that, while he is entitled to have the concurring judgment of twelve men against him before he can be lawfully pronounced guilty of the offense Avith Avhich he is charged, he may in such case be convicted by a divided jury, or by a jury, no two members of which agree that he is guilty of the same offense. If there is evidence of two separate offenses, and the jury may convict of either, six of the jury may believe that the accused is guilty of the first, and not of the second, Avhile the other six may Believe that he is guilty of the second offense, and not of the first. The result Avould be that all the jury Avould agree that he was guilty, without agreeing on the offense of AArhich he Avas guilty.

And if instead of testimony being produced to establish two distinct offenses, it sIioavs twelve, it is possible, that one juror might be convinced that the defendant Avas guilty of some particular one of the offenses, and of none other, and thus each juror might be convinced that he was guilty of some particular one of the offenses, and all agree to a conviction, and yet no two jurors be agreed upon any one offense.

This is one of the grounds upon Avhich the supreme court of Indiana, in Lebovitz v. The State, 113 Ind. 26, and the supreme court of Kansas, in The State v. Crimmins, 31 Kan. 376, condemned the practice of allowing proof of different offenses to be made against a person charged with a single offense.

The instructions asked for by appellant and refused, were properly refused. If the “ Pine Apple Balm ” was intoxicating, ignorance of this quality, or the belief of appellant to the contrary, was no defense. He was bound, at his peril, to ascertain and know the nature of the article he sold. When an act is prohibited by law, without reference to the intent or purpose with which it is done, doing the act is a violation of the law. Com. v. Farren, 9 Allen 490 ; Com. v. Boynton, 2 Ib. 160; Knight v. The State, 64 Miss. 802; 2 Whart. Cr. L., §§ 2440, 2442.

It is true, as said in King v. The State, 58 Miss. 937, that “ one authorized to sell medicine ought not to be held guilty of violating the laws relative to retailing, because the purchaser of a medicine containing alcohol misuses it- and becomes intoxicated ; but, on the other hand, these laws cannot be evaded by selling as a beverage intoxicating liquors containing drugs, bark, or seed which have medicinal qualities. The use to which the compound is ordinarily put, the purposes for which it is usually bought, and its effects upon the system, are material facts from which may be inferred the intention of the seller. If the other ingredients are medicinal, and the alcohol is used either as a necessary preservative or article for them —if from all the facts and circumstances it appears that the sale is of the other ingredients as a medicine, and not of the liquor as a beverage — the seller is protected ; but, if the drugs'or roots are mere pretenses of medicine, shadows and devices under which an illegal traffic is to be conducted, they will be but shadows when interposed for prevention from criminal prosecution.”

Proof of the sale, and that the article sold was intoxicating, made a prima faeie case against appellant, and it then devolved on him to show that it was a medicine and not liquor.

For the error of admitting evidence of more than one illegal sale, the judgment is reversed and the cause remanded.