WALKER v. STATE

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Docket Number

No. 32556.

Attorney(S)

E.F. Coleman, of Purvis, for appellant. We contend that the court below should have sustained or rather given the peremptory instruction for there is a material variance between the indictment, that is the charge laid in the indictment, and the proof, and that the said variance is fatal. The indictment charges the defendant with selling intoxicating liquor, to-wit, whiskey, on the ____ day of July 1936 to Bernard Saucier and Bennie Sones, and the proof shows that if any sale was made at all, it was made only to Bernard Saucier. This being true, then there is a material variance between the allegations of the indictment and the proof and was a fatal variance and the peremptory instruction should have been given. It is well established in this state that where an indictment charges that liquor was sold to two persons and the proof shows that the sale was made to only one then there is a fatal variance between the indictment and the proof, which variance is fatal. Tyler v. State, 69 Miss. 395, 11 So. 25; John v. State, 24 Miss. 569; Dick v. State, 30 Miss. 631. The state attempted to prove more than one sale, and the indictment does not fix the date of any sale, that is there is no specific date laid in the indictment. This being true, this court has repeatedly held that this could not be done. Craig v. State, 105 Miss. 326, 62 So. 358; Prince v. State, 141 Miss. 667, 107 So. 280. Webb M. Mize, Assistant Attorney-General, for the state. There is no variance in the indictment and the proof. The testimony of Bernard Saucier shows that the sale of whiskey was made to him and Sones. They went to the place together and purchased the whiskey and drank it. It is true that the defendant testified that Saucier and Sones never came to his place of business together and that he never sold any liquor to Saucier and Sones, but this merely created a conflict in the evidence which necessarily made a jury question. Harris v. State, 175 Miss. 1, 166 So. 392; Ervin v. State, 168 Miss. 145, 151 So. 177. The state is not confined to the proof of a single violation, but evidence may be given of one or more offenses of the same character in a case where the defendant is charged with the sale of intoxicating liquor. Section 1986, Code of 1930; Pederee v. State, 108 Miss. 653, 67 So. 152. It was alleged in the indictment that the sale took place on the ____ day of July, 1936. Sones' testimony showed that the date was about the middle of July, 1936. The sale that was objected to took place on the 6th day of July, 1936, a date prior to that alleged in the indictment. There are several objections made to this evidence. In the first place, this evidence was admissible, because evidence of the sale was first brought out in the testimony of Bernard Saucier, or cross-examination by the defendant. Therefore, the defendant was responsible for bringing out that evidence and, therefore, there can be no complaint. Mitchell v. State, 170 So. 534. At the conclusion of the evidence of Sones there was no motion made to exclude.

Judges

Griffith, J., delivered the opinion of the court.

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WALKER v. STATE.

1. INTOXICATING LIQUORS.

Indictment charging the unlawful sale of intoxicating liquor need not charge to whom the sale was made, since any sale would be unlawful.

2. INTOXICATING LIQUORS.

Where indictment for unlawfully selling intoxicating liquor charged to whom the sale was made, such averment became essential as one descriptive of the offense charged and thus would have to be proved by state, notwithstanding such an averment was unnecessary.

3. INDICTMENT AND INFORMATION.

In prosecution for unlawfully selling intoxicating liquor, date of sale laid in the indictment is immaterial and need not be precise, where state relies on evidence of one sale only.

4. INDICTMENT AND INFORMATION.

Indictment charging unlawful sale of intoxicating liquor which alleged that sale was made on ____ day of July held insufficient to allow proof of more than one sale, since indictment must be specific and precise as to date of sale for which prosecution is being conducted, where state seeks to prove more than one sale (Code 1930, sec. 1986).

Griffith, J., delivered the opinion of the court.

Appellant was convicted of the unlawful sale of intoxicating liquor. The indictment charged "that Frank Walker in said county and state on or about the ____ day of July A.D. 1936 did wilfully and unlawfully sell certain intoxicating liquor, to wit, whiskey, to Bernard Saucier and Benny Sones, against the peace," etc. The proof showed a sale to Saucier, and that, while Sones was present, the state of the evidence is such that there is but little more reason to say that Sones was a joint purchaser than that he was a joint seller or an agent of the seller. Although it was unnecessary to charge to whom the sale was made, since any sale was unlawful, yet, when so charged, the unnecessary averment became essential as one descriptive of the offense charged, and, being thus essential, must be proved as charged. The point was expressly and precisely involved in Tyler v. State, 69 Miss. 395, 11 So. 25, and also in Hudson v. State, 73 Miss. 784, 19 So. 965, which cases are in accord with the general rule as stated in 31 C.J. p. 748.

But the principal point upon which the judgment must be reversed is that proof of more than one sale was admitted in evidence over the objection of appellant when no precise or specific day of the sale was alleged in the indictment under which appellant was being prosecuted. Where the state relies on evidence of one sale only, the date laid in the indictment is immaterial and need not be precise; but where, as in the present case, the state seeks to avail of section 1986, Code 1930, and to prove more than one sale, the indictment must be specific and precise as to the date of the sale for which the prosecution is being conducted. The indictment here alleges that the sale was made on the ____ day of July. Such an allegation is not specific and precise so as to allow proof of more than one sale, as was decided in Prine v. State, 141 Miss. 667, 107 So. 280, a case directly in point. See, also, Winningham v. State, 156 Miss. 659, 126 So. 477, and the cases therein cited.

Reversed and remanded.

WALKER v. STATE.

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