Horton v. State , 147 Miss. 37 ( 1927 )

^* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 605, n. 17. The appellant was convicted of selling intoxicating liquors on an affidavit, made before a justice of the peace, in which the time of the sale was alleged to have been the 20th day of October, 1926. Having been convicted in the justice court, he appealed to the circuit court, and, in the trial of the case evidence of more than one offense was offered, and admitted by the court over appellant's objection. The second offense was shown to have been committed on the 27th day of October, subsequent to the date laid in the affidavit. This was objected to on the ground that the affidavit alleged that the sale was made on or before the 20th day of October. This evidence was at first excluded, but the court reversed its ruling and admitted it, saying:

"I never saw this point before exactly, I will change my ruling on that; just say, Mr. Stenographer, the date of the affidavit being the 1st of November, 1926, and alleging that the sale was on or about the 20th of October, the court is of the opinion that any sale proved before the date of the affidavit, November 1st, would be admissible," — to which ruling the defendant excepted.

This court has heretofore held that an offense committed subsequent to the date alleged in the indictment, in such case as the one before us, could not be admitted under section 2098, Hemingway's Code; that the date alleged in the indictment controls, and not the date of the finding of the indictment or the date of the affidavit; and that it is reversible error to admit evidence of a sale subsequent to such date where more than one offense is sought to be proved. Moses v. State, 100 Miss. 346, 56 So. 457; Bailey v. State, 143 Miss. 210, 110 So. 230;Voss v. State, 144 Miss. 825, 110 So. 670. Under these authorities the judgment of conviction must be reversed and the cause remanded for a new trial.

Reversed and remanded.