Nash v. Smith

Smith, C. J., delivered the opinion of the court. This is an appeal from a conviction for the sale of intoxicating liquor. The court oVerruled a motion hy the appellant to quash the indictment, for the reasons that— „“The body returning the same was not and is not a duly organized or impaneled grand jury as provided by law,in that the regular legal and proper jury box- of Lauder-dale county, Miss., existing on the first Monday of February, 1923, as well as the names legally drawn therefrom to constitute the grand jury for this court, was illegally quashed, and the grand jury or supposed grand jury was illegally drawn by the sheriff of Lauderdale county. ’ ’ This motion was properly overruled, for the evidence in support of it is the same as that in support of a similar motion in Quick v. State (Miss.), 96 So. 737. The indictment is in the usual form, charging simply that the appellant, “on the 6th day of February, 1923, did unlawfully sell vinous, spirituous, malt, alcoholic, and [643] intoxicating liquors,” etc. The appellant moved the court for a hill of particulars setting forth “the time, place, and circumstances relied upon in this charge and the parties present,” etc. The motion was overruled. After the rendition of a judgment against him the appellant moved for a new trial on the ground that the date testified to by the prosecuting witnesses as that on which he sold the liquor was October 11, 1922, which fact he ascertained for the first time when testified to by the witnesses, and that he did not then remember where he was on that date, but now remembers, and knows that he was not at the place where the sale is said to have been made, but was at home in bed sick, which fact he can prove by several witnesses whose affidavits to that effect were also filed with the motion. This motion was also overruled. The defendant in a criminal case is not entitled to a bill of particulars; the only information relative to the crime charged against him to which he is entitled being that set forth in the indictment. Westbrooks v. State, 76 Miss. 710, 25 So. 491. It logically follows from the rule that the date of the commission of a crime laid in the indictment is not material, and that a date may be proven on the trial different from that laid in the indictment; that a defendant is not entitled to any indulgence because the date of the commission of the crime with which he is charged that is proven is 'different from that alleged in the indictment. It may bé that the defendant is entitled to a temporary delay in the trial or to some other indulgence because of such a variance between the indictment and the proof if a request therefor is made at the time the variance is made to appear as was intimated in Peebles v. State, 105 Miss. 834, 63 So. 271; but we are not confronted with any such question here, and consequently express no opinion relative thereto. Affirmed.