State v. Elliott

Supreme Court of Louisiana

State v. Elliott

70 So. 473, 138 La. 457, 1915 La. LEXIS 1890

CourtSupreme Court of Louisiana

DecidedOctober 18, 1915

DocketNo. 21577

StatusPublished

Cited by2 cases

This text of 70 So. 473 (State v. Elliott) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Elliott, 70 So. 473, 138 La. 457, 1915 La. LEXIS 1890 (La. 1915).

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O’NIELL, J.

The defendants were indict-ted for retailing intoxicating liquors without a license from the parish or any municipal authority. One of them, E. B. Randall, was tried and convicted, and was sentenced to pay a fine of $400 and the costs of the prosecution and to be imprisoned in the parish jail for the term of four months, and, in default of the payment of the fine and costs, to be imprisoned in the parish jail for an additional term of two months. On appeal he relies upon four bills of exception, all relating to the one complaint, that in an indictment charging that the offense was committed “on or about the 4th day of April, 1915,” the accused should not have been convicted on the evidence showing that the offense was committed a short time before or after that date.

[1] The principal state witness testified that on the 4th of April, 1915, he purchased a flask of whisky, by depositing the price at a place about 50 yards from the place of business of the firm composed of the two defendants, and by helping himself to the whisky. The defendant Randall contended that he had disposed of his interest in the firm referred to; but it appears that the internal revenue license,- which, under a statute of this state, is prima facie evidence of the business of retailing intoxicating liquor, remained in the name of the firm.

The district attorney acknowledged that he could not connect the defendant Randall with the transaction referred to by the witness; but he then proceeded to prove by the same witness that he (the witness) had also bought intoxicating liquors from the defendants’ place of business at another time, “just before or just after the 4th of April, 1915.” The defendant’s counsel objected to the introduction of this testimony under the indictment charging that the offense was committed on or about the 4th of April, 1915.

There was no merit in the objection. Time [459]*459is not of the essence of the offense of retailing intoxicating liquor' without a license. The defendant did not demand a bill of particulars. The fact that the state’s witness swore that he had bought intoxicating liquor near the defendants’ place of business on the day mentioned in the indictment did not preclude the district attorney from proving by the same witness that he had also bought intoxicating liquor from the defendant or the firm of which the defendant was a member on another occasion shortly before or shortly after the date stated in the indictment ; nor did the district attorney’s acknowledgment that he could not connect the defendant with the transaction first proven prevent his proving by the same witness that another sale of intoxicating liquor was made by the defendant just before or just after the sale first proven.

The verdict and sentence appealed from are affirmed.

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O’NIELL, J.

The defendants were indict-ted for retailing intoxicating liquors without a license from the parish or any municipal authority. One of them, E. B. Randall, was tried and convicted, and was sentenced to pay a fine of $400 and the costs of the prosecution and to be imprisoned in the parish jail for the term of four months, and, in default of the payment of the fine and costs, to be imprisoned in the parish jail for an additional term of two months. On appeal he relies upon four bills of exception, all relating to the one complaint, that in an indictment charging that the offense was committed “on or about the 4th day of April, 1915,” the accused should not have been convicted on the evidence showing that the offense was committed a short time before or after that date.

[1] The principal state witness testified that on the 4th of April, 1915, he purchased a flask of whisky, by depositing the price at a place about 50 yards from the place of business of the firm composed of the two defendants, and by helping himself to the whisky. The defendant Randall contended that he had disposed of his interest in the firm referred to; but it appears that the internal revenue license,- which, under a statute of this state, is prima facie evidence of the business of retailing intoxicating liquor, remained in the name of the firm.

The district attorney acknowledged that he could not connect the defendant Randall with the transaction referred to by the witness; but he then proceeded to prove by the same witness that he (the witness) had also bought intoxicating liquors from the defendants’ place of business at another time, “just before or just after the 4th of April, 1915.” The defendant’s counsel objected to the introduction of this testimony under the indictment charging that the offense was committed on or about the 4th of April, 1915.

There was no merit in the objection. Time [459]*459is not of the essence of the offense of retailing intoxicating liquor' without a license. The defendant did not demand a bill of particulars. The fact that the state’s witness swore that he had bought intoxicating liquor near the defendants’ place of business on the day mentioned in the indictment did not preclude the district attorney from proving by the same witness that he had also bought intoxicating liquor from the defendant or the firm of which the defendant was a member on another occasion shortly before or shortly after the date stated in the indictment ; nor did the district attorney’s acknowledgment that he could not connect the defendant with the transaction first proven prevent his proving by the same witness that another sale of intoxicating liquor was made by the defendant just before or just after the sale first proven.

The verdict and sentence appealed from are affirmed.

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70 So. 473, 138 La. 457, 1915 La. LEXIS 1890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-elliott-la-1915.

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