Newman v. State

Woods, J.,

delivered the opinion of the court.

The action of the court below in excluding the evidence of the defendant’s witnesses, Flint and Armstrong, members of the grand jury Avhich returned the indictment in this case, and in refusing the instructions pointing to that evidence, was correct. The offense charged was a sale of liquors unlawfully to anyone, and not a sale to one particular person, and the case was made out by satisfactory proof of any sale within two years before the date of the finding of the indictment, and within the county named. Whether the sale was made to one person or another is wholly immaterial. The offense is in its character capable of endless repetition, and, as the statute is designed to prevent any unlawful sale, the state is not confined, under the indictment, to any particular case. The defendant’s safety from two prosecutions for one particular offense is assured by confining the state, in its evidence, tc such single sale as counsel may elect, and by permitting the accused to show by evidence aliimde the record that he has once been acquitted or convicted of having made that unlawful sale.

There is much authority, moreover, in cases like this, for holding that a grand juror may not be called to give evidence as to the character of the testimony taken before the grand jury, for the purpose of identifying, or disproving the identity of, the case on trial with that on which the grand jury has acted. The reason for the holding is that, in such cases, the accused may have committed the offense many times — the offense of unlawfully selling to anyone — and the proving of any one selling, in the county and within the limited time, is sufficient, as it may have been sufficient before the grand jury in its action, the offense created by the statute being an unlawful sale to anyone, and not to some .particular person. See Bish. Cr. Pro., 1, § 872; Spratt v. State, 8 Mo., 247; State v. Boyd, 2 Heis. Rep., 288; State v. Fowler, 52 Iowa, 103. See, also, Rocco v. State, 37 Miss., 357; Smith v. State, 61 Ib., 754; King v. State, 66 lb., 502; Bailey v. State, 67 lb., 333; Naul v. McComb City, 70 lb., 699.

We agree with the counsel for appellant that the evidence offered by the state is insufficient to warrant a conviction. Just at the point where a sale was made, if there was one, the state’s evidence fails. Grant all that the state’s evidence proves, and yet it may be that the person sent to buy the liquor did not, in fact, buy from the accused, or, indeed, buy at all. At most, the evidence raises a suspicion that there was a sale by defendant.

Reversed.