State v. Gray

Mississippi Supreme Court

State v. Gray

71 So. 296, 111 Miss. 113

DecidedMarch 15, 1916

StatusPublished

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Bluebook

State v. Gray, 71 So. 296, 111 Miss. 113 (Mich. 1916).

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Opinion

Potter, J.,

delivered the opinion of the court.

This is an appeal from the circuit court of Leflore county. The appellee, Gum Gray, was charged in the magistrate’s court with unlawful selling of intoxicating liquor and, having been convicted, appealed to the circuit court. In the trial of the case in the circuit court the state produced evidence of three separate and distinct sales of liquor by the appellee, Gum Gray, within a period of two years anterior to the date charged in the •affidavit. At the conclusion of all the evidence, and after instructions had been asked and granted by the court, ■except instruction No. 1, counsel representing the appellee moved the court to require the state to elect on which ■sale, as testified to by witnesses, a conviction would be •asked for. This motion was sustained by the court, and ■the district attorney was required to elect a particular sale upon which he would ask for a conviction. To the •action of the court sustaining the motion to elect, the state •then and there duly excepted, and now appeals to this [116]*116court for the purpose of settling tlie principles of this case only;.the defendant having been acquitted by the jury.

The only question to be determined in the case is whether or not the trial judge was in error in requiring the district attorney to elect a particular sale upon which to ask a conviction. The court below was clearly in error in making this requirement. Thomas v. Yazoo City, 95 Miss. 396, 48 So. 821, 1041; Wadley v. State, 96 Miss. 77, 50 So. 494; Neely v. State, 100 Miss. 211, 56 So. 377; King v. State, 99 Miss. 23, 54 So. 657.

Reversed.

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Potter, J.,

delivered the opinion of the court.

This is an appeal from the circuit court of Leflore county. The appellee, Gum Gray, was charged in the magistrate’s court with unlawful selling of intoxicating liquor and, having been convicted, appealed to the circuit court. In the trial of the case in the circuit court the state produced evidence of three separate and distinct sales of liquor by the appellee, Gum Gray, within a period of two years anterior to the date charged in the •affidavit. At the conclusion of all the evidence, and after instructions had been asked and granted by the court, ■except instruction No. 1, counsel representing the appellee moved the court to require the state to elect on which ■sale, as testified to by witnesses, a conviction would be •asked for. This motion was sustained by the court, and ■the district attorney was required to elect a particular sale upon which he would ask for a conviction. To the •action of the court sustaining the motion to elect, the state •then and there duly excepted, and now appeals to this [116]*116court for the purpose of settling tlie principles of this case only;.the defendant having been acquitted by the jury.

The only question to be determined in the case is whether or not the trial judge was in error in requiring the district attorney to elect a particular sale upon which to ask a conviction. The court below was clearly in error in making this requirement. Thomas v. Yazoo City, 95 Miss. 396, 48 So. 821, 1041; Wadley v. State, 96 Miss. 77, 50 So. 494; Neely v. State, 100 Miss. 211, 56 So. 377; King v. State, 99 Miss. 23, 54 So. 657.

Reversed.

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Bluebook (online)

71 So. 296, 111 Miss. 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gray-miss-1916.

Opinion

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