* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 267, n. 62; p. 268, n. 67; p. 383, n. 71; 17CJ, p. 366, n. 60; Intoxicating Liquors, 33CJ, p. 710, n. 21. The appellant, B.M. Jones, was tried and convicted of the unlawful sale of intoxicating liquor and was sentenced to pay a fine of five hundred dollars and to serve a term of six months in the county jail, from which conviction this appeal is prosecuted.
The prosecution originated in the court of a justice of the peace, and the affidavit charged that the offense was committed on the 29th day of June, 1926, while the affidavit, on its face, shows that it was sworn to on the 18th day of June, 1926. There was a variance in the date of the affidavit and warrant. The first witness placed upon the stand testified to buying some "home brew" from the defendant, appellant here, about three months prior to the time of the trial in the circuit court, the court being held in August, 1926. He could not place the date with exactness, and objection was made to his testimony; and the court ruled that it would not permit any evidence to be introduced subsequent to the date of the affidavit. The district attorney thereupon amended the affidavit *Page 89 so as to charge that the sales were made on the 18th day of June, 1926.
Another witness testified that he bought "home brew," also from the defendant, prior to the trial in the justice court, between March and July, 1926, and that to the best of his recollection he bought it in May, 1926. There was testimony of some sales of Jamaica ginger, but this was excluded from the jury because it was not shown to be an intoxicating beverage.
The second witness testified that the "home brew" had a "kick" in it, and he could feel the effects of it; that in his judgment it would produce intoxication if drunk to excess. It appears that the bottles sold were of the size known as "Try-Me," which the witness stated was about a half-pint bottle; and the witness estimated that six of these bottles would produce intoxication.
There was some evidence to the effect that on a certain Sunday afternoon automobiles assembled around the place of business, parties went in at the back door, and seemed to be hilarious. After the evidence was closed, the state procured the following instruction:
"The court instructs the jury for the state that if you believe from the evidence in the case beyond a reasonable doubt that the defendant sold three bottles of liquor called home brew to the witness, Frank Robinson, within two years prior to June 19, 1926, and that such liquor, if any such there was, if drunk to excess would intoxicate, it is your duty to find the defendant guilty as charged."
Frank Robinson's evidence showed that he bought two bottles and not three bottles of "home brew;" and it was contended that there was no evidence to justify this instruction because Robinson did not buy three bottles.
It is further contended that the state could not after proving two or more offenses, elect to proceed on the sale to Frank Robinson and ignore other sales to other witnesses; that having invoked the statute, the state must take the benefit as well as the burden of the statute; *Page 90 and the defendant was entitled to an acquittal of all offenses anterior to the date of the indictment.
We think there is no merit in these contentions. It is true the witness, Robinson, testified only to buying two bottles, and the instruction had the effect of putting a greater burden upon the state than was necessary for it to bear. If the defendant sold to the witness, Robinson, any intoxicating liquors, he was guilty whether he sold one bottle, or two, or any other quantity. We also think that the contention is not well founded here, for the reason that it does not arise in the proceeding before us. When the state introduced more than one sale, the defendant was entitled to a plea of autrefois acquit, or autrefois convict of any sales thereafter charged against him anterior to the date laid in the indictment. He will, of course, be entitled to invoke this principle should he hereafter be put to trial for offenses committed anterior to the date laid in the affidavit and within the period of limitation from that date. But that question does not arise on this conviction. He is not entitled to invoke it in the present case. If the state convicts on one of the offenses after having introduced more than one, he has the right to invoke the statute thereafter. It does not affect his right in the present case.
It is also contended that the punishment inflicted is greater than authorized by law, and the judgment should be reversed and the cause remanded even though the conviction be affirmed. As stated above, the court sentenced him to six months' imprisonment and to pay a fine of five hundred dollars, suspending all the fine with the exception of one hundred dollars and costs, and all imprisonment with the exception of ninety days, the rest of the imprisonment to be held in suspension during good behavior, and subject to imposition by the judge, either in term or time of vacation, without notice to the defendant, if for any reason he deemed it necessary to impose it. *Page 91
By an examination of section 2086, Hemingway's Code 1917 (Laws of 1912, chapter 214), it will be seen for the first offense a fine may be imposed for as much as five hundred dollars, and imprisonment may be for as much as three months. As the trial judge intended the defendant to pay one hundred dollars and costs and serve three months at all events, we think that judgment may be modified here by limiting the imprisonment to ninety days, the maximum imprisonment under this statute; otherwise the judgment to remain in full force and effect.
Affirmed, with modification.