(dissenting).
I concur in so much of the foregoing opinion as holds, that the circuit court should retain jurisdiction because the indictment was found anterior to the commencement of the proceedings before the justice of the peace, and that the case should be reversed; but I dissent as to the suit being abated or dismissed, and hold that the prosecution before the justice of the peace should be stayed till the appellant is tried upon the indictment. If the indictment is a general or blanket one — that is charging" the unlawful sale, without naming the person to whom the sale was made — and if upon the trial the state introduces evidence to show more than one sale, then the verdict operates as a bar to any sale committed within two years next preceding the date of the filing of the indictment; but if the state confines itself to one sale other than the one charged in the affidavit made before the justice of the peace, then the charge made in the affidavit can be prosecuted to a finality, and the defendant acquitted or convicted as the evidence justifies. I do not-understand that under section 1762, Code of 1906, a person can be convicted of but one offense for the violation thereof committed within two years previous to the commencement of the prosecution, and such seems to be the ruling of the court in the majority opinion. Section 1762, Code 1906, permitting evidence of more than one sale, was brought about by the ruling of this court to the effect that, when the state introduces evidence as to one sale, evidence as to another sale was inadmissible, and *218hence, as the statute permits evidence of one or many sales, it is proper to provide that in such cases a conviction or acquittal in such would be a bar to all other prosecutions for violations within two years. I do not understand the law to be that if a party violates the law every day for two years — that is, seventy hundred and thirty times in the two years — he can be prosecuted and convicted for only one violation, unless, as stated above, he is indicted generally for unlawfully retailing, and the state produces evidence upon the trial of more than one violation. But upon the other hand, I do insist that it is lawful to indict one for as many violations as he has committed, and the conviction or acquittal upon either indictment is not a bar to the other indictment, if the state confines its evidence to one sale.
If the opinion of the majority is sound, it seems to work out this state of affairs, to wit: I may violate this law, say on the 1st day of January, again on the 2d, 3d, 4th, 5th, and so on, every day until the circuit court convenes, say July 1st following, and a few days before the grand jury convenes one of my friends can go before a justice of the peace and make an affidavit charging me with violation, and I am tried or acquitted as the case may be, and then when the grand jury convenes it indicts me, I am arraigned, and plead that the former prosecution before the justice of the peace is a complete bar. The legislature never intended that such a monstrous condition should be permitted. The legislature of the state for more than a quarter of a century has taxed its ingenuity to the utmost in order to prohibit the unlawful sale of intoxicating liquors. If the opinion of the majority is the law, then the efforts of our legislature have been in vain, and a new statute will be imperatively demanded, and this lawless, godless, manhood, and virtue destroying element must be made to stop this nefarious practice. The only way to do it is to prosecute them vigorously. As long as I remain upon the bench, I will *219never render an opinion which ex necessitate will call forth a vigorous protest from the lawmaking department •of the state.