Wadley v. State , 96 Miss. 77 ( 1909 )

Mayes, J.

delivered tbe opinion of tbe court.

Tbe appellant was indicted at tbe September term of tbe' circuit court-of Panola county for unlawful sale of intoxicating1 liquors. Tbe indictment states no specific date on wbicb it. is claimed tbe offense was committed, but as to this merely charges that it was “on tbe- day of —-—, 1908.” Two' distinct sales are testified to by two different witnesses; one of them testifying, that tbe sale was made to him some time in June, 1908, and tbe other claiming’ that bis purchase was in-July of tbe same year. "When this testimony was ini, tbe defendant ashed leave of tbe court to file a plea of former conviction of tbe same offense, and in support of this plea offered tbe record of tbe justice of tbe peace of tbe proper district, showing that appellant was charged, by affidavit of date August 1, 1908, with unlawfully selling intoxicating liquor, and convicted and sentenced on August 8th. It will be noticed that tbe conviction of appellant for unlawfully selling intoxicating liquor was subsequent to tbe date of wbicb tbe witnesses claim they made tbe purchase from him. This plea was demurred to by tbe state, and tbe demurrer sustained, and plea stricken out, followed by a conviction of defendant under tbe indictment.

As tbe indictment did not allege tbe date on wbicb tbe violation occurred, and as it was returned subsequent to tbe conviction of 'appellant in tbe justice court-, it could hardly be expected that be would file tbe plea of former conviction until' it developed in tbe state’s testimony that the state intended to-rest its prosecution on a sale occurring prior to tbe conviction-before tbe justice. It may be better practice to file the plea of former conviction before tbe trial commences, if tbe defendant knows such facts as would justify the plea at that time; but in this case it took tbe state’s testimony to develop tbe appropriateness of tbe plea. We know of no rule of pleading that makes it imperative for a plea of this nature to be filed before-tbe trial is begun, and to so bold in this case would thwart justice. Tbe plea was proper, and the court erred in sustaining tbe demurrer and striking out tbe plea. Tbis is particularly true in tbis case, where tbe indictment lays tbe date in blank, only alleging that it was in 1908, and because of section 1762 of tbe Code of 1906, which provides: “On the trial of all prosecutions for tbe violation of law by tbe sale or giving away of liquors, bitters, or drinks, tbe state shall’not be confined to tbe proof of a single violation, but may give evidence of any one or more offenses of tbe sainé character committed anterior to tbe day laid in tbe indictment or in tbe affidavit, and not barred by tbe statute of limitations; but in such case, after conviction or acquittal on tbe merits, tbe accused shall not again be liable to prosecution for any offense of the same character committed anterior to tbe day laid in tbe indictment or in tbe affidavit.”

Tbe state must take tbe benefits of tbis statute subject to its burdens. Tbe offense proven by the state was prior to tbe conviction of appellant before tbe justice of tbe peace, and if it be true that in tbe prosecution before tbe justice of tbe peace on tbe 8th day of August, 1908, tbe state availed itself of tbis stat-' ute and let in evidence of more than one sale, then there can be no further prosecution of appellant for any offense of tbe same character occurring prior to tbe date laid in tbe affidavit in tbe justice court, to wit, August 8, 1908; and whether tbe state did avail itself of this statute in tbe prior prosecution can only be determined by proof, showing whether or not tbe state confined itself to a single issue, to wit, tbe date laid in tbe affidavit, and tbis is true, although there was a plea of guilty entered on former trial. Nor all that is shown by tbis record, tbe state may have fully developed its case before tbis plea was entered.

Reversed and remanded.