Taylor v. State , 101 Miss. 857 ( 1912 )

Mayes, C. J.,

delivered the opinion of the court.

The facts set out in the replication to the plea in abatement filed by appellant, clearly show that no justice of the peace had ever acquired jurisdiction to try this appellant for the crime of selling intoxicating liquors. The demurrer to the replication admits all the facts stated in the replication, and these facts show that nu affidavit, charging the appellant with the unlawful sale of intoxicating liquors, was ever lodged with any justice of the peace; nor was any appearance bond ever given to any justice of the peace, or filed in his court. In short, it appears from the replication that,, if any affidavit was made under which the appellant was arrested and placed under bond, it was wholly irregular, and not made before the proper justice of the peace, and the taking of bond was without any legal authority. Of course, under these facts, theré was no ground shown, for any plea in abatement.

The only other question we desire to discuss is thisr The indictment charges appellant with selling intoxicating liquors in Forrest county; the proof undoubtedly furnished the jury with ample grounds for convicting. But it is contended that the proof shows that if any sale was made it was made at a place of amusement, and, since the indictment does not so charge, there is a fatal variance between the indictment and the proof. The indictment in this case is under Sec.'1746 of the Code of 1906, as amended by Ch. 115, Laws 1908, and is an indictment generally for the sale of intoxicating liquors in Forrest county. The indictment does not attempt to charge ■where the sale was made, except that it was made in Forrest county. Sec. 1746 of the Code, amended as above, provides that any person violating same shall be • fined “not less than fifty dollars, nor more than five hundred dollars, or be imprisoned in the county jail not less than one week, nor more than three months, or both. ’ ’

When appellant was convicted, he was sentenced to pay a fine of five hundred dollars, and to serve an imprisonment of ninety days, in accordance with Sec. 1746 of the Laws of 1908. It is contended that the court could not sentence under this section of the Code at all, and that the case should have been dismissed, because, if the appellant was guilty, he was guilty of selling at a place of amusement, which is punished by Sec. 1773, p. 118, Laws of 1908, in a different way; that is to say, since the proof showed that the sale was made at a place of amusement, he was guilty, if at all, only of the crime made by Sec. 1773 of the Laws of 1908., The above section of the Laws of 1908, p. 118, is as follows: “If a person carry to any place of amusement, social entertainment, or to any public assemblage intoxicating liquors of any kind, or if he sell or give away such intoxicating liquors at any such place, he shall upon conviction, be fined not less than ten dollars, nor more than fifty dollars, or imprisoned in the county jail not less than one week, nor more than one month, or both.”

We do not think there is anything in this contention. The charge in the indictment is made under section 1746 of the Code, as amended, and it is that he sold,intoxicating liquors in Forrest county, and the proof shows that he did this. It may be true that the proof shows that the sale was made at a place of “amusement or social entertainment;” but such proof was not at all necessary to establish the crime charged, and when the proof showed that the sale was made at a place of amusement it also showed that it was made in Forrest county; and no matter where made, it was unlawful under the general law, the law which appellant was prosecuted for violating. If the indictment had been drawn under Sec. 1773 of the Laws of 1908, and had charged the sale to have been made at a place of amusement, of course, the proof would have had to correspond. But this indictment charges a general sale of intoxicating liquors under Sec. 1746 of the Code, as amended. The fact that the proof showed that the sale of intoxicating liquors was at a place of amusement does not change or meliorate the offense charged in the indictment, or make of it a different offense. It was proper for the court to sentence as it did. . Affirmed.