* Headnotes 1. Criminal Law, 16 C.J., Section 1174 (Anno); 17 C.J., Section 3662; Evidence of other sales in prosecution for violation of liquor law, see note in 62 L.R.A. 290; 15 R.C.L., p. 398; 2. Criminal Law, 16 C.J., Section 2465; 3. Witnesses, 40 Cyc., pp. 2709, 2716, 2718; 4. Constitutional Law, 12 C.J., Section 212; Criminal Law, 17 C.J., Section 3543. The appellant was indicted, tried, and convicted of selling intoxicating liquors contrary to law. On the trial *Page 577 the state was permitted to introduce more than one sale under the provision of section 1762, Code of 1906 (Hemingway's Code, section 2098). The indictment alleged a sale had been made on November 17, 1924. One of the witnesses for the state testified to a sale on Armistice Day, November 11, 1924. A second witness introduced testified to a different sale, and did not fix the time definitely, but said the sale occurred on a Saturday night in November, 1924. The indictment was returned and filed on December 2, 1924.
Section 1762, Code of 1906 (Hemingway's Code, section 2098), reads as follows:
"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."
It will be noted from a reading of this section that the statute authorized the introduction of one or more offenses of the same character committed anterior to the time laid in the indictment. Where the state undertakes to operate under this statute, the offenses must occur prior to the day alleged in the indictment, and it is not permissible under this statute to introduce sales made subsequent to the day laid in the indictment.
The court instructed the jury, among other things, as follows:
"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 intoxicating liquor, as charged in the indictment, then it is your sworn duty to find the defendant guilty as charged." *Page 578
In Moses v. State, 100 Miss. 346, 56 So. 457, it was held error to admit a sale made subsequent to the date laid in the indictment. In the case of Cage v. State, 105 Miss. 326, 62 So. 358, this court held that, unless the date was specifically laid in the indictment, more than one sale could not be admitted in evidence under the above statute.
In the case before us the witness wholly fails to state whether the sale was before or after the 17th day of November, 1924, the date laid in the indictment. It may have been subsequent to the date laid in the indictment. A statute is in derogation of the common law, and must be strictly adhered to. To say the least of it, it puts the defendant to a great disadvantage in going to the jury with different sales testified about, and it is quite possible that he was convicted on a sale subsequent to the date laid in the indictment. Certainly we could not assume that the jury disregarded the testimony of such witness.
While the defendant was making his argument, the state obtained an instruction telling the jury it was immaterial in the trial of a case as to whose name is on the indictment. The defendant was not given an opportunity to comment on the instruction, and knew nothing of it until it was read to the jury in the closing argument of the district attorney. The indictment in the case did not have the names of either of the witnesses who testified on the trial indorsed on the indictment but did have the names of two other witnesses indorsed as witnesses to the indictment.
The practice of giving instructions under the circumstances has been condemned in the case of Montgomery v. State, 85 Miss. 330, 37 So. 835. It is by far the safer rule to require parties to litigation to obtain their instructions before the argument begins, but, if it should become necessary to settle some disputed proposition of law during argument, the attention of counsel should be called to the instruction, and given an opportunity to comment upon it. *Page 579
When one of the witnesses for the state was upon the stand, the defendant sought to examine him with reference to whether or not he was a grand juror, and if he did not go before the grand jury and testify, and if he did not fail to state to the grand jury that the defendant had made a sale of intoxicating liquor to him. This evidence was objected to, and the objection sustained, and the court ruled that it would only permit an examination for the purpose of impeaching the witness; that is to say, to laying the predicate for impeachment of the witness by other witnesses. We think it is a matter that is admissible for the purpose of affecting the credibility of the witnesses, regardless of whether such witness would be impeached by other persons. In other words, if the witness went before the grand jury and testified that he did not buy from the defendant such liquors, or if he failed to give information of such offense when questioned with reference thereto, it would affect his credibility as a witness. While the witnesses who appear before a grand jury are sworn to secrecy as to their testimony, the purpose of such oath of secrecy is not to prevent the full development of the truth of the matter on the trial of the cause. After the indictment is returned, and the witness placed under arrest, and when he is placed upon trial, the testimony, if pertinent, is admissible for the purpose of affecting the credibility and veracity of the witness.
The constitutionality of section 2098, Hemingway's Code (section 1762, Code of 1906), is vigorously assailed by appellant, but, as the case must be reversed for the errors above mentioned, and especially for the error in admitting the sale which was not identified as being anterior to the date laid in the indictment, it is unnecessary to notice this assignment.
The judgment will be reversed and the cause remanded.
Reversed and remanded. *Page 580