De Marco v. State

59 Miss. 355

• Court: Mississippi Supreme Court
• Decided: October 15, 1881
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

Both under the Code of 1871 and that of 1880, it is a misdemeanor for one not having a license to sell vinous or spirituous liquors in the quantity named in the indictment. The indictment, though framed by the draughtsman in accordance with the provisions of the Code of 1871, is yet good under the Code of 1880. The date of the offence is laid on the second of November, or one day after the Code of 1880 went into operation. The proof shows that the offence was committed before that day, i. e. in the summer of 1880. On a motion to quash, or in arrest of judgment, the indictment would stand, because it charges an offence under the Code of 1880. On the motion for a new trial, the verdict is upheld, because the date when the offence is alleged to have been committed is immaterial.

The newly discovered testimony was not such as to entitle the appellant to a new trial. The witness for the State testified that he had on many occasions during the summer purchased whiskey from the appellant. The newly discovered testimony only went to the extent of contradicting him as to what occurred on one particular occasion. Admitting the testimony of the State’s witness to be true, except as to the occurrence to which the newly discovered testimony relates, the verdict would still be right.

Judgment affirmed.