
    Easterling v. State,
    35 Miss. Rep., p. 210.
    Illicit Retailing of Intoxicating Drinks.
    The rule of evidence is, that when a fact is peculiarly within the knowledge of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence or of acting according to law does not render it incumbent on the other side to prove a negative.
    When there is nothing in the record to show what number of persons constituted a grand jury, and nothing to show that the persons summoned and sworn were not residents of the county, it will bo presumed, in support of a judgment, that the grand jury was composed of a lawful number of lawfully qualified persons.
    The foreman of a grand jury whose name was Lazarus J. Jones indorsed a bill of indictment by his signature L. J. Jones, and it appearing that he was in fact the same person, the indorsement is held’ sufficient.
    
      An incomplete, defective, or void judgment at one term of the court upon a verdict of guilty may he treated as a nullity, and the proper judgment and sentence rendered and entered at the next term; and until the proper judgment and sentence shall he so made, the defendant will he regarded as continuing in custody of the law.
    Error to Jasper circuit court. Watts, J.
    
      George L. Potter, for plaintiff in error,
    Cited, Chitty’s Or. L., 283a and 556.
    
      T. J. Wharton, attorney general.
   Handy, J.:

This was an indictment for retailing spirituous liquors without license.

1. A motion was made in the court below to quash the indictment on several grounds : 1st, Because the grand jury consisted of more than eighteen persons; 2d, Because it does not appear that they were residents of the county; 3d, Because the indictment is not indorsed by Lazarus J. Jones, the foreman of the grand jury, but by the name of L. J. Jones. This motion was overruled, and that is assigned for error.

As to the first ground of the motion, there is nothing in the record to show what number of persons constituted the grand •jury; and it must, therefore, be presumed, in support of the judgment, that the objection was not well founded in point of fact. 2d, The indictment shows that the grand jurors were sumonioned and sworn to inquire in and for the body of the county, etc. In the absence of all evidence tending to show that they were not residents of the county, it must be presumed that they were duly summoned from the body of the county, and were competent to act as grand jurors. 3d, It does not appear by the record, or by any evidence, what was the name of the foreman of the grand jury; and it will therefore be presumed that the court acted properly in overruling this ground of objection. But even if true in point of fact, the objection is frivolous ; for although the name of the foreman was Lazarus J. J ones, yet it was competent for him to indorse the bill under his signature of L. J. Jones, if, as appears to be conceded, he was one and the same person.

2. Upon the trial, the court instructed the jury that it did not' devolve'Upon' the state to'prove'that tbé defendántbad no license;: but''if he relied hpon a license to excúse bis selling by retail, it was for bim to' prove"that he'had the license’;' and refused to instruct, at tbe instance of tbe defendant, that, unless tbe state bad proved that tbe defendant bad no license, tbe verdict should be for tbe defendant.

These rulings were excepted, but they are cléarly correct. Tbe rule is, that when a fact is peculiarly within tbe knowledge of one of the parties, so that be can have no difficulty in showing it, tbe presumption of innocence, or of acting according to law; will not fender incumbent'on the'other-side to prove tbe negative. Boscoe’s Crim. Ev., 72 (2d edit.). And where a party- was convicted of selling’ alé withoút license, upon mere proof that be bad sold ale, and tbéré being no proof that be" had sold without 'license, the conviction' was sustained, on tbe ground that tbe prosecution need hot prove the negative- averment; bécause, if there was a license,'it was witbin tbe knowledge- and power of the defendant,-and'could be immediately produced; whereas, tbe proof could not 'be made by the prosecutor without inconvenience. Gening v. The State, 1 McCofd, 573.

3. Tbé-cáse was tried at September term, 1857, and tbe 'jury returned a verdict against tbe defendant. Tbe record shows that' the" court thereupon’ rendered judgment against bim for '- dollars" and the costs'of the-'prosecution. At the next ’ term the district 'attorney moved tbe court that- judgment be’" 'entered ¿gainst bbn for’ twenty-five dollars,'and'thát he be imprisoned in the' county jail for one week, that being tbe judgment-of tbe court at tbe'previous term, but tbe same' not having been éntefé'd'of’ record by the clerk.' The defendant being in court in person, tbe' coiift- ordered tke': judgment to be entered accordingly.' Tt:is"nów objected'that this is error.

After tbe verdict was returned, it was' tbe duty' of tbe court t'o render judgment against the' defendant for the penalty pres'cfibfed’by law; ánd until "that was done, the defendant was not discharged from tbe custody df tbe law, and tbe jurisdiction of the court was hot' at an end; If is manifest'here that tbe essential thing required by law had not been done — an award of tbe punishment prescribed by law for tbe offense''; "ánd that tbe verdiet stood at the term- at which it was rendered without a judgment. The judgment purporting to be rendered was without substance, and the judgment of the law remained to be- pronounced. It was therefore competent for the court, at the next term, to render judgment upon the verdict for the penalty prescribed by law. It is not the case of a judgment merely erroneous, but of one without substance, and void.

Judgment affirmed.  