The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-04-12
William league
VS..
The State
HANDY

The State,
This was a proceeding by seirs .faeias
upon a forfeited recognizance. -
1t appears that the plaintiff in error
was indicted at the May term of the Cir
cult Court of YallObusha county, for
vending spirituous liquors in violation Of
the act approved March End 1854, in re-
lation to the sale Of vinous or spurious
liquors in the town Of Grenada in said
county. The said act prohibits the sale
Of vinous OF spurious liquors in any guam
tity whatever in the town of Grenada, or
within three miles Of the limits of the
corporation.
The indictment contained two accounts
in each of which it is charged in general
terms, that the defendant sold vinous
and spurious liquors in violation of the
act without any averment as to the guam
THY Of the liquors sold, whether in guam
titles of less or more than one gallon.
The defendant having been arrested
under said indictment, entered into a re-
cognizance with security to appear and
answer the same; and failing to appear, a
forfeiture and judgment ria were taken
/ against him and his securities, on the
It'll Of November 1889 scire faeias,
was issued upon this judgment returnable
to the May term of the Court in 1860.
Subsequent to the entry of the judg-
ment nisi, that is on the oath of jan
uRry, 1850, the act above referred to was
repealed. but with a proviso declaring
thai the repeating act should not be so
construed as to relevae or discharge from
prosecution and punishment any offender
or offenders who had violated the act in
tended to be repealed, by selling vinous
or spirituous liquors in less quantities
than one gallon &c" Acts 1860, page 3l4
At the return term ofth SeTie faeias the
defendant demurred. and upon the over.
ruling Of the demurrer. he filed his plea
to the Seire facias which being adjudged
insufficient, judgment final was entered
against him and his securities.
1t is contended in support Of the ex
ception to the judgment that "a the in
dictment does not charge an illegal sale
oil vinous or spirituous liquors in quaint
ties less than one gallon the defendant il
not included in the proviso Of the act re
pealing the act under which the indict
ment was found. And rs the pending
indictment is not valid charge for any
ofiense in respect to which the penalties
incurred under the act of the 2nd o.
March 1854. were intended to be saved by
I
, not, legally, be convicted Of any offens,
provided for by any existing law. Henc'
as il Is assigned that the effect Of the re
pealing act was to absolve the defendan
from any penalty incurred under the &C
repealed the seire faeids should have beer
! dismissed.
L appears To be well settled that afte
the expiration or repeal Of law no pen
/ II L Il. =
ficted for violation of the law committed
, whilst it was in force, unless some specia
provision be made for that purpose b,
statute. And that penalties incurred un
, der a statute must be collected before
and cannot be collected after the repeal o
: such statute. Yeaton ct al vs.. Tn,
United states. 5 Cranb. 2si /; Stone v,
| Sumrall. Watts 25S; Lewis vs. Foster,
/ n. II. Rep. 81 Barr, Pensyl. Rep. ia
G. Ind. Rep. 300.
J And it may be conceded that the in
F; dictment set out in the record whicl
/ charges generally the illegal sale {
: vinous and spurious liquors withou
{ specifying the quantity sold, would be il
4 valid as q charge under q statute declai
: ing il to be unlawful for any one to se
4 such liquors in less quantities than on
4 COLON, but it does not follow under tn
q circumstances presented by the record
8 that it is defective and therefore obno,
ious 10 demurrer.
It is not pretended that the indictmer
: here, when returned into court by tn
!, grand jury was invalid, because Il di
= not allege that the quantity of liouS
J averred to have been sold by the defen,
: ant was less than one gallon. Proof ,
Il he Al Of ri m mir
: any quantity whatever, by the defendaI
!, in the town Of Grenada, or within thrc
y miles of the limits of the corporate
= would have sustained the Indictment.
= was when returned valid. Il was Il
: manifest and expressed intentions of Il
% Legislature not to relieve against eyel
violation of the act of the 2nd OF Marc
= 1854, but only as to those infractiol
: which had been committed by q sale
liquors in quantities Of one gallon and u
= wards. Hence the only logical or sem
= BILE effect which can be ascribed to the T
|. pealing act is torepder the general chs
" ges in the indictment specific as to Il
quantity Of liquor alleged to have hee
- sold. and to limit the enquiries OF the iu
r. and the court 10 the fact whether the d
Va PENDANTS had not been guilty Of sellil
n. liquors in quantities less than one gallo
r. Hence il upon the trial II should appe
rs that although the proof might show ii
,e the defendant had sold liquors in yiol
ton Of the act Of 1854, unless it shou
also be proved that he had sold 81,
9 liquor in less quantities than a gallon,
d would be acquitted. On the other har
q If it were proved that the defendant HI
violated said act by selling liquor IN u
N quantity than one gallon be should
J convicted,