
    Louis Wadley v. State of Mississippi.
    [50 South. 494.]
    1. Ceimestai. Law and Pkocedube. Unlawful sale of intoxicating liquors. Autrefois convict. Pleading, out of time. Q-eneral rule. Exception. Delay accounted for.
    
    While the better practice is to require special pleas in criminal cases to he filed before the beginning of the trial, a defendant indicted for the unlawful sale of intoxicating liquors should not be precluded from pleading a former conviction, as being out of time, because he did not offer his plea until he had gone to trial and . the state had offered its evidence, where the indictment charged the offense to have been committed in a designated year, ' without specifying the day or the month, and the date of the sale counted upon for a conviction was not developed or known to the defendant until the introduction of the state’s testimony.
    2. Same. Same. Code 1906, § 1702. Sufficiency of plea of autrefois convict.
    
    Under Code 1906, § 1762, providing that, on trial for violating the liquor laws, the state may give evidence of any one or more offenses of the same character committed before the date laid in the indictment, but in such case, after conviction or acquittal, accused shall not be liable for prosecution for any offenses of the same character before the date laid in the indictment, a plea of former conviction, alleging that accused had been convicted of unlawfully selling intoxicating liquor, filed on the trial of an indictment which left blank the date of a similar offense, is good as against a demurrer; for the question whether the state on the former trial availed itself of the privilege of the statute is a matter of proof, although a plea of guilty was entered on the former trial.
    Mrok tbe circuit court of, first district, Panola county.
    HoN. William; A. RoaNE, Judge.
    Wadley, appellant, was indicted for and convicted of the unlawful sale of intoxicating liquors and appealed to tbe supreme court. Tbe facts are fully stated in tbe opinion of tbe court.
    
      ' Shands & Montgomery, for appellant.
    It is true tbat tire plea of autrefois convict was filed after tbe state bad closed its case, but it was so filed without objection and no motion was made to strike it from tbe files because out of time, and, since tbe state demurred to tbe plea, it is too late for complaint to be made here for tbe first time on tbe ground tbat it was not seasonably filed.
    It was impossible in ibis case for tbe’ defendant to know whether be could truthfully interpose tbe plea before tbe state bad closed its testimony; be could not tell tbat tbe state counted for a conviction upon tbe sale pleaded until after tbe state’s evidence bad been beard. Tbe indictment charged a sale on tbe - day of —>—•, 1908, without designating the day or month and it failed to name tbe purchaser. Had tbe state proved a sale between tbe 8th of August and tbe 2nd of October, 1908, tbe plea would have been inapplicable.
    Tbe plea distinctly averred a former conviction of tbe same offense as tbe one upon which tbe state relied for a conviction in this case, and it was unquestionably in proper form and was good upon its face and not subject to- demurrer..
    Constitution 1890, sec. 22; 9 Ency. P. & P. 634, sec. O.; 1 Bishop’s New Grim. Proc. § 810, p. 474.
    
      George Butler, assistant attorney-general, for appellee.
    It was expressly decided by this court in tbe cases of Ireland v. Slate, 89 Miss. 763, and Ball v. State, 67 Miss. 358, tbat tbe defense of a former conviction could only be set up by a special plea. While it is true tbat it is a'favored plea, manifestly, when tbe plea is not filed until after tbe case has been opened, there should be some reason offered for tbe delay in filing it before it should have been received. Probably, tbe plea would have been stricken out on motion of tbe district attorney, but aside from this tbe plea was fatally defective in tbat it was not shown tbat tbe offense for which appellant bad been convicted was the identical offense for which he was being tried. It will be noticed that the plea recites that the former offense was tried before a justice of the peace and that it was alleged to have been committed on the 7 th day of August, 190S, and that on the 8th day of August, 1908, appellant appeared and plead guilty of the charge and further alleges: “And defendant further avers that the offense charged against him in the affi- ■ davit, and for which he was convicted, and for which he has already paid the penalty of the law, is the same with which he is charged in this indictment in this case.”
    The evidence before the court at that time shows that the off fense for which appellant was then being tried was committed in July, 1908, and not on the 7th day of August, 1908, the date of the commission of the offense for which he had previously been tried and convicted.
    It is quite true that under Code of 1906, § 1762, if there had been given in evidence in the trial in the justice of the peace court the sale made in July in connection with the sale made on the 7th day of August, this would have operated as a •bar to the prosecution for the sale, — Pope v. State, 63 Miss. 58, — hut the plea recites that the defendant plead guilty to the charge. Therefore, under the statute, the prosecution as to the prior offense was not barred.
    I think it may be safely said that the plea in this case does not distinctly allege that the offense charged in the former affidavit and this charge are one and the same, and this according to all of the authorities, is necessary. 9 Enel. Plead. & Prac. 634; Pope v. State, 6.3 Miss. 53.
    It is true it is alleged in the plea that the offense charged in the affidavit is the same offense with which he is charged in the indictment, but this, taken in connection with the other allegation in the plea, that the offense for which he had been convicted occurred on the 7th day of August, means nothing more than that the crimes were of the same kind.
   Mayes, J.

delivered tbe opinion of tbe court.

Tbe appellant was indicted at tbe September term of tbe' circuit court-of Panola county for unlawful sale of intoxicating1 liquors. Tbe indictment states no specific date on wbicb it. is claimed tbe offense was committed, but as to this merely charges that it was “on tbe- day of —-—, 1908.” Two' distinct sales are testified to by two different witnesses; one of them testifying, that tbe sale was made to him some time in June, 1908, and tbe other claiming’ that bis purchase was in-July of tbe same year. "When this testimony was ini, tbe defendant ashed leave of tbe court to file a plea of former conviction of tbe same offense, and in support of this plea offered tbe record of tbe justice of tbe peace of tbe proper district, showing that appellant was charged, by affidavit of date August 1, 1908, with unlawfully selling intoxicating liquor, and convicted and sentenced on August 8th. It will be noticed that tbe conviction of appellant for unlawfully selling intoxicating liquor was subsequent to tbe date of wbicb tbe witnesses claim they made tbe purchase from him. This plea was demurred to by tbe state, and tbe demurrer sustained, and plea stricken out, followed by a conviction of defendant under tbe indictment.

As tbe indictment did not allege tbe date on wbicb tbe violation occurred, and as it was returned subsequent to tbe conviction of 'appellant in tbe justice court-, it could hardly be expected that be would file tbe plea of former conviction until' it developed in tbe state’s testimony that the state intended to-rest its prosecution on a sale occurring prior to tbe conviction-before tbe justice. It may be better practice to file the plea of former conviction before tbe trial commences, if tbe defendant knows such facts as would justify the plea at that time; but in this case it took tbe state’s testimony to develop tbe appropriateness of tbe plea. We know of no rule of pleading that makes it imperative for a plea of this nature to be filed before-tbe trial is begun, and to so bold in this case would thwart justice. Tbe plea was proper, and the court erred in sustaining tbe demurrer and striking out tbe plea. Tbis is particularly true in tbis case, where tbe indictment lays tbe date in blank, only alleging that it was in 1908, and because of section 1762 of tbe Code of 1906, which provides: “On the trial of all prosecutions for tbe violation of law by tbe sale or giving away of liquors, bitters, or drinks, tbe state shall’not be confined to tbe proof of a single violation, but may give evidence of any one or more offenses of tbe sainé character committed anterior to tbe day laid in tbe indictment or in tbe affidavit, and not barred by tbe statute of limitations; but in such case, after conviction or acquittal on tbe merits, tbe accused shall not again be liable to prosecution for any offense of the same character committed anterior to tbe day laid in tbe indictment or in tbe affidavit.”

Tbe state must take tbe benefits of tbis statute subject to its burdens. Tbe offense proven by the state was prior to tbe conviction of appellant before tbe justice of tbe peace, and if it be true that in tbe prosecution before tbe justice of tbe peace on tbe 8th day of August, 1908, tbe state availed itself of tbis stat-' ute and let in evidence of more than one sale, then there can be no further prosecution of appellant for any offense of tbe same character occurring prior to tbe date laid in tbe affidavit in tbe justice court, to wit, August 8, 1908; and whether tbe state did avail itself of this statute in tbe prior prosecution can only be determined by proof, showing whether or not tbe state confined itself to a single issue, to wit, tbe date laid in tbe affidavit, and tbis is true, although there was a plea of guilty entered on former trial. Nor all that is shown by tbis record, tbe state may have fully developed its case before tbis plea was entered.

Reversed and remanded.  