
    Angelo Miazza v. The State.
    1. Circuit judge: mat be transferred to another district. — The legislature may reorganize the judicial districts of the State, so as to transfer a circuit j udge to a different district from the one in which he was elected.
    2. Indictment : time when essential : retailing. — The day on which the offence of retailing is charged in the indictment to have been committed, is not material to be proven on the trial; time, in such a case, is neither of the essence of the crime, nor a necessary ingredient*in the description of it, and hence may be laid at any day previous to the finding of the indictment, and within the period prescribed by the Statute of Limitations for the commencement of the prosecution.
    3. Same : motion in arrest of judgment : autrefois convict and acquit.— A motion in arrest of judgment will not be sustained, because other indictments of like import, and for similar offences, are pending against the defendant. His remedy in such a case, against two prosecutions for the same offence, is to plead autrefois convict, or acquit.
    
    4. Practice : when issue on plea in abatement found against defendant, judgment should be final. — In misdemeanors, upon the finding of the jury against the defendant, on his plea in abatement, the judgment should be final, and not resjpondeat ouster.
    
    Erroe, to tbe Circuit Court of Hinds county. Hon. John Watts, judge.
    The plaintiff in error, at the March term, A. D. 1856, of the court below, was indicted for retailing without license. The indictment charged, that the defendant, “ on the 10th day of December, A.D. 1855, with force, &c., at the county aforesaid, to wit, in the city of Jackson, in the county aforesaid, did sell vinous and spirituous liquors, in a less quantity than one gallon, without then arid there having a license,” &c.
    The defendant first moved to quash the indictment, and his motion was overruled. He then pleaded in abatement, denying the right of the Pión. John Watts, judge, then presiding in the eourt, to hold the said court, upon the ground that the county of Hinds was, at the date of the election of said Watts, a part of the third judicial district of the State, in which, at the date of said election of Watts, the Hon. J. S. Terger was elected circuit judge; and that said Terger was not dead, and had not resigned, and had not interchanged with Watts.
    The district attorney replied to the plea, by averring that the Hon. John Watts, who presides in this court, is the judge of said court, duly qualified and authorized, under and by virtue of the constitution and laws of the State, to preside over and hold the said court; and that the Hon. J. S. Terger is not the judge of the said court.
    To this replication the defendant demurred, and his demurrer was overruled.
    The cause was then submitted to a jury, on the issue on this plea and replication, and the verdict was for the State.
    The defendant then pleaded not guilty, and the cause was again submitted to a jury, who found the defendant guilty, as charged.
    On the trial of the last issue, the State proved, by a witness, that the defendant sold vinous and spirituous liquors, in a less quantity than a gallon, in January, 1856; and the defendant asked the court to instruct the jury, if the sale was not proven to have occurred on the day named in the indictment, they must acquit, which was refused.
    After verdict on the plea of not guilty, the defendant moved for a new trial,- and in arrest of judgment, and in support of said motion, read to the court two other indictments, for retailing, against’the defendant.
    These indictments were in the same words and figures as the one on which he had been tried, except that one of them charged the offence to have been committed on the-day of February, A.D. 1856, and the other charged it on the 10th day of February, A.D. 1856.
    
      Both of these motions were overruled, and final judgment pronounced, and the defendant sued out this writ of error.
    Mr. Wharton, the attorney-general,
    having been engaged in this cause for the defendant, before his election, J. A. P. Campbell, Psq., was appointed attorney-general pro tern., and as such argued the cause in this court for the State.
    
      T. J. Wharton and Wm. M. Plstell, for the plaintiff in error,
    Cited Arch. Or. PI. 84, 85, 90, 119; Wharton C. L. 80, 81; Roscoe Or. Ev. 77, note 1; 3 Day’s Cases, 283; Pick’s case, 30 Miss. R. 631; Murphy’s case, 24 lb. 584.
    
      J. A. P. Campbell, for the State.
   Haréis, J.,

delivered the opinion of the court.

Plaintiff in error was indicted for selling spirituous liquor in a less quantity than one gallon, without license therefor.

A plea in abatement was filed, denying that the presiding judge was judge of the Hinds Circuit Court, &c. To which there was replication, a demurrer to the replication, demurrer overruled, issue, and jury, and verdict for the State, and judgment that plaintiff in error answer over ; who thereupon plead not guilty, and there was a jury and verdict of guilty. Motion in arrest of judgment, and for new trial. Motion overruled, and sentence and judgment pronounced. Writ of error was then sued, out, and cause brought here.

We see no error in these proceedings, for which the judgment should be reversed.

The position taken by counsel for the plaintiff in error, on the trial of the plea in abatement-, that it is not competent for the legislature to reorganize the judicial districts of the State, so as to transfer a circuit judge, out of the district in which he was elected, to another and a different district, is wholly untenable. The constitution itself makes provision for “ interchange of circuits, in such manner as may be prescribed by law.” It was no part, therefore, of the policy of its framers, as contended for, that the people of each district should be confined to the judge elected by them. The election of judges by the people had reference to other and more important objects.

We think there was no error in the instruction of the court on this point; nor was there any error in overruling the plaintiff’s demurrer to the replication to his plea in abatement. It briefly, but substantially, presented the true issue.

It is next insisted that the court erred in refusing to charge the jury that, “ if the testimony does not show that the offence named in the indictment was committed on the day named therein, the jury must find the defendant not guilty.” This instruction was properly refused. Time is not material, except where it is of the essence of the offence (or a necessary ingredient in the description of it); it may be laid any day previous to the finding of the indictment during the period within which the offence may be prosecuted. Wharton’s Amer. Or. L. § 261, and authorities cited. Miller v. The State, 33 Miss. R. 360.

The motion in arrest of judgment, on the ground that other indictments of similar import were then pending in the same court against the same defendant, was properly overruled. There is no analogy between the principles held in the case of Murphy v. The State, referred to, and the case at bar. The evidence in Murphy v. The State, was held insufficient, because it did not identify the offence. Here no such difficulty exists, — the defendant knows whether he had license to sell or not. Nor can the defendant be prejudiced by any number of indictments against him for-similar or the same offences. One conviction for each distinct offence can only be had, and may be plead in bar of any subsequent attempt to re-try him for the same offence for which he has once been convicted or acquitted.

We see no error in their proceedings, except that judgment final should have been rendered against the plaintiff in error, on the verdict of the jury against him, on his plea in abatement, instead of respondeat ouster, and of this he cannot complain.

Let the judgment be affirmed.

A re-argument was asked for and refused.  