Jones v. State , 67 Miss. 111 ( 1889 )

Cooper, J.,

delivered the opinion of the court.

There is no objection to the practise of joining in one indictment-counts for separate misdemeanors. Under the indictment in this case the defendant, upon sufficient evidence, might have been convicted of one act of retailing without license, and of another act of selling to a minor. The fact that the person to whom both sales were made was the same is immaterial. So also the same act of sale might have been the subject of the two counts. The verdict finds the defendant guilty as charged, which means guilty on both counts. On the motion in arrest of judgment, the court, looking only to the record, finds a valid indictment, and a verdict of guilty responsive to the whole charge. There is nothing in the record proper that would prevent sentence on each count. But on the motion for a new trial the court, looking at the whole case, discovered that the evidence was sufficient to uphold the conviction on the first count, and insufficient to uphold that on the second. It therefore proceeded to impose the penalty of the law for the conviction on the first count only. There is no uncertainty either in the verdict or in the sentence; nor can the appellant complain that the verdict is broader than is warranted by the evidence, since the punishment has been confined to that offense for which he wras properly convicted.

The question put by the defendant to the witness Brooks, on cross-examination, was in reference to a collateral and immaterial matter. Whether he had or had not made the declaration specified Avas wholly irrelevant, and neither tended to contradict any statement he had made in testifying nor to show bias against the accused. Under such circumstances, the defendant was bound by the reply made by the witness.

The judgment is affirmed.