This is an appeal from a conviction for selling intoxicating liquor. The indictment alleges that the appellant sold liquor "on the — day of July, 1925." The state introduced evidence of the sale by the appellant of intoxicating liquor "in the latter part of July, 1925," and then, over the objection of the appellant, introduced evidence of other sales made by the appellant two or three months prior to the first. At the request of the state, the jury were instructed to find the appellant guilty if they believed beyond a reasonable doubt that he sold intoxicating liquor "in July, 1925, or any time prior thereto during the year 1925." The admission of the evidence *Page 671 of more than one sale and the giving of this instruction are assigned as error.
The statute relied on by the state is section 1762, Code of 1906 (Hemingway's Code, section 2098), which provides that:
"On the trial of all prosecutions for the violation of law by the sale or giving away of liquors, bitters, or drinks, the state shall not be confined to the proof of a single violation, but may give evidence in any one or more offenses of the same character committed anterior to the day laid in the indictment or in the affidavit, and not barred by the statute of limitations; but in such case, after conviction or acquittal on the merits, the accused shall not again be liable to prosecution for any offense of the same character committed anterior to the day laid in the indictment or in the affidavit."
Where the state relies on evidence of one sale only for a conviction, the date thereof laid in the indictment is immaterial (section 1428, Code of 1906 [Hemingway's Code, section 1184];Oliver v. State, 58 So. 6, 101 Miss. 382), but, where the statute hereinbefore set out is invoked and a conviction is sought for the making of any one of several sales, the date laid in the indictment is material, for the sales that can be given in evidence are then determined thereby, which, under the plain language of the statute, are such sales as were made "anterior to the day laid in the indictment." Moses v. State, 56 So. 457,100 Miss. 346.
The indictment here under consideration alleges no specific day (Cage v. State, 62 So. 358, 105 Miss. 326); consequently the statute cannot be invoked, and it was error to admit the evidence and to give the instruction complained of.
The intoxicating liquor here sold was Jamaica ginger which it was lawful for the appellant to sell, unless he sold it to be used as a beverage, and the state contends that evidence of the other sales thereof was admissible in order to show that the Jamaica ginger was sold by the appellant for use as a beverage. Had the instruction *Page 672 complained of not been given, this question would be presented for decision, but the instruction specifically invoked the statute and permitted a conviction for any of the sales introduced in evidence.
Reversed and remanded.