Peebles v. State

Smith, C. J., delivered the opinion of the court. This is an appeal from a conviction for the unlawful sale of intoxicating liquor. The date of sale alleged in the indictment was the 4th day of January, 1913; the date proven on the trial was the 27th day of October, 1912. Appellant, in her motion for a new trial, claims that she was unable to obtain from the state’s .witnesses any information relative to the date of sale, and therefore prepared her case for trial on the theory that the date laid in the indictment was the true date, that she was taken by surprise when the date proven varied from the date laid in the indictment, and that if she should be granted a new trial' she will prove a complete alibi, supporting her claim of ability so to do by the affidavits of witnesses having knowledge of her whereabouts on the 27th day of October, 1912. Appellant is entitled to no indulgence by reason alone of the fact that the date of sale proven on the trial differed from the date laid in the indictment. McCarty v. State, 37 Miss. 411; Miazza v. State, 36 Miss. 613; Oliver v. State, 101 Miss. 382, 58 South. 6. If she was entitled to any indulgence by reason of the fact, if such it be, that when the true date of sale was disclosed by the evidence she for the first time discovered that she could prove an alibi, she waived any right thereto by not calling the court’s attention to it at the earliest possible moment after making the discovery. She cannot raise it for the first time after verdict. Affirmed.