The circuit court dismissed the petition for the writ of certiorari on the ground that Grubbs was barred of his appeal because he did not appeal to the term of that court next following his conviction. We do not concur in this view. The limitation on appeals in civil cases provided for in Code, §§ 82, 84, do not apply to criminal cases. These are governed by section 86, and the requirement of this that bond be required for appearance "at the next term of the circuit court" means, we deduce from the whole context, the next term after appeal taken. Smith v. Boykin, 61 Miss. 110. But nevertheless the court was right in dismissing the petition for the writ of certiorari, since section 89 | barred that, because more than six months had elapsed from the day of decision.

Mandamus is the only remedy left to Mr. Grubbs, and the justice may thus be compelled to bring any papers, and at least a transcript of his docket record, from which papers may be prepared and substituted for those lost.

Affirmed.

DAVIS v. STATE.

(Supreme Court of Mississippi. April 7, 1902.)

CRIMINAL LAW-BOXING PINE TREES-INFOR

MATION-EVIDENCE-TITLE.

1. An information charging a violation of Code 1892, § 1317, prohibiting the boxing of pine trees growing on lands belonging to another, must charge that defendant knew that the trees boxed were on land owned by another.

2. The evidence in a prosecution for the violation of Code 1892, § 1317, prohibiting the boxing of pine trees on the land of another, in order to sustain a conviction, must show the title of the alleged landowner.

3. An information under Code 1892, § 1317, prohibiting the boxing of pine trees on the land of another, and authorizing a fine of $20 for each tree boxed, which only charges defendant with boxing trees, will only support a conviction for boxing two trees, though the evidence shows that defendant boxed more, and therefore a fine exceeding $40 is excessive.

Appeal from circuit court, Covington county; J. R. Enochs, Judge.

"To be officially reported."

W. M. Davis was convicted of boxing pine trees, and he appeals. Reversed.

McIntosh Bros., for appellant. W. L. Easterling, Asst. Atty. Gen., for the State.

TERRAL, J. The appellant was prosecuted upon an affidavit which alleged that he "did box, or cause to be cut boxes in, affiant's [B. L. Rodgers'] pine trees, growing on affiant's land, without the consent of the owner, against," etc. The statute (section 1317, Code 1892) provides: "If any person shall box for turpentine, or cut or cause to be cut, a box or boxes in a pine tree growing on land known to belong to another, without the consent of the owner, he shall on conviction, be fined not less than five dollars nor more than twenty dollars for each

tree so cut or boxed, or be imprisoned in the county jail not exceeding three months. or both." The appellant was convicted and fined $100, and hence he appeals.

1. The affidavit here is defective because it does not allege that appellant knew that the land upon which the pine trees were growing, and the turpentine boxes cut, belonged to another. Such allegation serves to exclude the idea of accident or mistake, and includes the willful purpose to disregard the rights of others. This allegation is an essential feature of a charge under this section, expressly required thereby, and cannot be safely omitted.

2. The title to pine trees growing upon land is real estate, and such title can be proven only by such evidence as is applicable to the proof of title to real estate, and yet there is nothing in the record to support a title to real property. In other words, there is in the record no evidence of any title in Rodgers to land upon which were growing the pine trees in which these turpentine boxes were cut. In a mere civil action for trespass to land, it would be necessary to show title or possession in the plaintiff, and yet here neither title nor possession was shown in Rodgers. Upon this point the evidence is too defective to support a conviction.

3. By the express declaration of section 1317, the defendant. upon conviction, could be fined no more than $20 for each tree boxed. The affidavit merely charges him with boxing trees, without more, which allegation is satisfied by two trees; and the defendant could be fined no more than $40. for he is convicted of boxing two trees, only. Because, in criminal matters, we take it that a defendant is only convicted of what is properly alleged against him, and not of what might have been alleged against him. If the evidence before the jury had authorized it to find that the title to the land trespassed upon was in B. L. Rodgers, then we think the evidence tended to support the conclusion that as many as five trees were cut into turpentine boxes, so as to support a fine of $100; but the point we emphasize is that the affidavit does not allege that five trees were so boxed, so as to authorize a greater fine than the express number of trees alleged in the affidavit would support.

Other alleged errors are not discussed. because the new trial granted will obviate their repetition, if in fact they exist. Reversed and remanded.

CARROLL v. STATE.

(Supreme Court of Mississippi. April 7, 1902.) INTOXICATING LIQUORS-ILLEGAL SALE-CONNIVANCE-EVIDENCE-FORMER ACQUITTAL 1. In a prosecution against a storekeeper for conniving at a sale of liquor by his clerk, evidence having been introduced that the clerk

had sold what appeared to be a flask of whisky, it was competent, as proving that the flask did contain whisky, to permit a witness who saw the sale to testify that the clerk begged him not to report the act to the grand jury.

2. A trial and acquittal of a storekeeper on a charge of selling liquor was not a bar to a prosecution for conniving at a sale of liquor in his premises, founded on the same facts.

Appeal from circuit court, Lee county; E. O. Sykes, Judge.

"To be officially reported."

E. M. Carroll was convicted of conniving at a sale of liquor, and appeals. Affirmed.

Andrews & Long, for appellant. Monroe McClurg, Atty. Gen., for the State.

a

TERRAL, J. The appellant, being storekeeper in Tupelo of many years' business, was indicted, under section 3, c. 104, of the Acts of 1900, for conniving at the sale of vinous and spirituous liquors in said storehouse, and was convicted. The proof tended to show that Carnathan bought in said storehouse of T. E. Gardner, a clerk of appellant, a flask of liquor, under circumstances indicating that its sale was a part of the business of the store. The appellant was not shown to be at or about the storehouse at the time of the sale, but the statute provides that a sale of liquor in the building owned by another shall constitute presumptive evidence that the owner or occupant connived at such sale, unless said owner or occupant give notice thereof to some conservator of the peace. The appellant gave no notice, nor did he testify in the case. Doty testified that Gardner sold to Carnathan what appeared to be a flask of whisky, and, as evidence as to what the contents of the flask were, Doty told how thereafter Gardner pleaded with him not to report his act or conduct to the grand jury; and this piece of evidence was strenuously objected to by Carroll. But it was entirely competent to show that what Gardner sold to Carnathan was whisky, and the pleading of Gardner with Doty not to report the matter to the grand jury was a necessary part of the proof that what he sold to Carnathan was whisky. And in this aspect of the matter, there can be no objection to the evidence given by Doty. It was essential to prove not only that Carroll connived at the sale of liquor in his storehouse, but that Gardner made a sale of liquor there; and the evidence of Doty as to what Gardner said after the sale was competent evidence to show that the article sold Carnathan was whisky, both as affecting his own guilt in selling the liquor, and the guilt of Carroll in conniving at such sale.

2. Preceding the trial, appellant pleaded that he had been jointly indicted with Gardner for, tried and acquitted of, making a sale of spirituous liquors to Carnathan, based upon the same sale as that which is the foundation of this prosecution, to which a demurrer had been sustained; and this rul

ing is alleged as error. The trial and acquittal pleaded in bar of this prosecution were in fact no bar, because an acquittal on the former indictment did not preclude his guilt under the present one. Conniving at a sale of whisky was a different and distinct thing from making the sale itself, and we think there is no error in the culing of the court in this regard. Other objections are made, but we find nothing of which appellant can reasonably complain. Affirmed.

TRIPLET v. STATE. (Supreme Court of Mississippi. April 7, 1902.) CRIMINAL LAW-INTERFERENCE WITH TENANT-INFORMATION.

1. An information charging a violation of Code 1892, § 1068, making it criminal for any person to willfully interfere with a laborer or renter who has contracted with another for a specific time, or induce him to leave, which merely states that defendant unlawfully interfered with complainant's hands, by starting to move them, is insuflicient, in failing to show that such act was willful; that the hands were renters or laborers, or under contract for a specified time; and that the interference was before the expiration of such contract, and without the consent of the landlord.

2. The mere act of starting to move a tenant is not a violation of the above statute, if the tenant desires to be moved.

Appeal from circuit court, Winston county; G. Q. Hall, Judge.

Jim Triplet was convicted of interfering with the tenant of another, and he appeals. Reversed.

In December, 1900, C. B. Coleman contracted with one Jim Stewart to work on shares certain land belonging to Coleman, for the year 1901. Stewart afterwards, becoming dissatisfied, concluded to abandon his contract with Coleman, and moved from Coleman's place. Appellant was employed by Stewart to move him (Stewart) from Coleman's place. Coleman then made affidavit against appellant before a justice of the peace, charging appellant with interfering with his hands. Appellant was tried and convicted of the charge in the justice of the peace court, and appealed to the circuit court, where appellant interposed a demurrer to the affidavit, setting up, among other grounds, the following: The affidavit does not charge that the defendant willfully interfered with the affiant's laborers. That it does not show that the hands had been contracted with for a specific time. That the afliant does not show that the interference complained of was without the consent of affiant. That it does not show that the interference complained of was before the expiration of any contract entered into prior to that time. Appellant's demurrer was overruled by the court, and he was again tried, and convicted of said charge. From this judgment of the court this appeal is prosecuted.

CALHOON, J. The affidavit in this case, made before a justice of the peace, is based on chapter 102 of the Pamphlet Acts of 1900, which provides: "That section 1068 of the Code of 1892 be amended as follows: If any person shall wilfully interfere with, entice away, knowingly employ, or induce a laborer or renter who has contracted with another for a specific time to leave his employer or the leased premises, before the expiration of his contract without the consent of the employer or landlord, he shall, upon conviction, be fined," etc. The original affidavit is this: "Personally appeared before me," etc. "C. B. Coleman, who makes affidavit that on," etc., "Jim Triplet did interfere with his hands, by starting to move them off at night, against the peace and dignity," etc. The circuit court permitted, and had inserted in the affidavit, an amendment which put the word "unlawfully" just before the word "interfere." Still, as amended, it is fatally defective. The statutory word "wilfully" is essential to this charge. It does not show whether the "hands" interfered with were "laborers" or "renters," nor whether they were such by contract for a "specified time," nor whether the interference was "before the expiration of such contract," nor that it was "without the consent of the employer or landlord," nor in what the interference was. "Starting to move" people is all right, if they want to be moved. Under Code, § 1438, a proper affidavit may be constructed by amendment which will disclose the "nature and cause" of the accusation. Coulter v. State, 75 Miss. 356, 22 South. 872.

Reversed and remanded.

Where, on the committing trial on a charge of robbery, the accused had an opportunity to Cross-examine the complaining witness, who subsequently died from a blow given by accused in the perpetration of the robbery, and accused was indicted for murder, the testimony of deceased could not be given on the murder trial, inasmuch as the issue on such trial was not substantially the same as that on the committing trial.

Appeal from circuit court, Copiah county; Robt. Powell, Judge.

Antonio Dukes was convicted of murder, and he appeals. Reversed.

Millsaps & Lockwood, for appellant. Monroe McClurg, Atty. Gen., for the State.

WHITFIELD, C. J. The record shows the following agreement: "It is admitted

that in the justice's court the defendant was on trial for robbery, and the robbery occurred at the same time that the blow was inflicted from which the party afterwards died, and that the blow was part of the means used in robbing him." The appellant was charged with having committed robbery upon James Welch, a peddler, before the justice of the peace on the committing trial. On that trial Mr. Welch was present, confronting the accused, and testified under oath. The appellant had oppor tunity to cross-examine Mr. Welch; being present himself, and being represented by counsel. In the interval between the committing trial and the convening of the cir cuit court, James Welch, the injured person. died. The testimony does not seem to have been written in compliance with the statute, in accordance with which the testimony of Mr. Welch should have been taken down in writing, and returned to the circuit court. The appellant was indicted in the circuit court for murder, not robbery. On his trial for murder, four witnesses were introduced by the state to prove orally their recollec. tion of the substance of the testimony deliv. ered by Mr. Welch on the committing trial. This testimony was objected to as incom. petent. The court overruled the objection, and the question presented by this appeal is whether that action of the court was correct on that state of case. The general rule is stated by Mr. Bishop in 1 New Cr. Proc. § 1195: "Of necessity, if a witness has died, or has become insane, though but temporarily, or by the opposite party is kept out of the way, or is too ill or infirm to come to the court (for it cannot adjourn to his house), or if from any cause for which the party is not responsible, such as residence beyond the process of the court, or the like, the witness' personal presence cannot be had (a rule as to which the decisions are somewhat indistinct and inharmonious), added to which, if there has been a prior proceeding, involving the same issue between the same parties, conducted regularly in pursuance of law, and therein the defendant had the opportunity to cross-examine the witness against him,-not otherwise,-what was on such former hearing testified to by a witness whose presence cannot now be had may be shown against the defendant.” Mr. Wharton says that it is enough if the offense be "substantially the same," his statement of the rule being as follows (Whart. Cr. Ev. [9th Ed.] § 227): "What a deceased witness testified to on a former procedure against the same defendant for the same offense as that under trial, or for an offense substantially the same, may be proved by witnesses who heard the testimony of the witness; nor is such oral evidence excluded by the fact that the original testimony was reduced to writing, nor, in criminal cases, by the constitutional provision that the defendant is entitled to be confronted with

the witnesses against him." It ought to be noted, in passing, that Mr. Wharton improperly calls this a species of hearsay evidence. A dying declaration is hearsay evidence, but the testimony of the original witness to the facts, delivered under oath, is not hearsay evidence, as pointed out by some authorities. The courts hold contradictory views on some of these propositions. For instance, it is held in Finn v. Com., 5 Rand. 701, that such testimony is not admissible in any criminal case whatever; and in Massachusetts, New York, New Hampshire, and Mississippi it is held that it is only admissible where the witness is dead. Le Baron v. Crombie, 14 Mass. 234; Powell v. Waters, 17 Johns. 176; Crary v. Sprague, 12 Wend. 41, 27 Am. Dec. 110; Wilbur v. Selden, 6 Cow. 162; State v. Staples, 47 N. H. 119, 90 Am. Dec. 565; Owens v. State, 63 Miss. 452. Again, it is held in New York and Massachusetts that the witness must state the precise words, and not the substance only, of the testimony of the deceased witness. We concur in the very able opinion of Judge Drummond in U. S. v. Macomb, 5 McLean, 286, Fed. Cas. No. 15,702, on this point. See, specially, page 299. Judge Drummond's reasoning on this proposition is unanswerable. It is enough if the witness is able to state the material substance of the testimony of the deceased witness. Again, in an opinion of remarkable power delivered by Davidson, J., in Cline v. State (Tex. Cr. App.) 36 S. W. 1099, 37 S. W. 722, 61 Am. St. Rep. 850, it is held the constitutional provision requiring the witness to confront the accused on the trial means the trial on the merits before the jury; that consequently testimony of the deceased taken before an examining court is not testimony taken on a former trial, within the meaning of the word "trial" in this clause of the constitution; and that the defendant has the right to be confronted by the witness on such trial on the merits before a jury as many times as there are such trials,-hung juries, reversals, etc., not changing the rule. We call attention to these differences between the courts to emphasize the caution and extreme solicitude manifested by the courts in allowing this testimony to be introduced. And it will be noticed that this state admits the testimony in but one case, to wit, the death of the witness. Mr. Bishop says, in 1 New Cr. Proc. p. 732, note 7, "Such is, by all opinions, the doctrine in civil cases," but there may be a state or two wherein it is not received in criminal cases; citing Owens v. State, 63 Miss. 450; Finn v. Com., 5 Rand. 701. It doubtless would be well for our legislature to enact that such testimony should be received in all the categories mentioned in section 1195 of Dr. Bishop's work; adding the case of a witness made incompetent to testify since he delivered his testimony on the former trial. This court has held strictly to the rule of admitting such evidence, only

where the witness has died. This shows the necessity for extreme caution in application of the rule in this state.

Coming now to the test, on reason and principle, as to the admissibility of this sort of evidence, that test seems to be chiefly that the defendant on the former trial had full opportunity for cross-examining the witness; the issue (that is to say, the offense charged) being substantially the same. This involves two propositions: First, that the offense charged, or, as Mr. Russell puts it, "the point in issue," or, as most authorities put it, "the issue," must be the same; and, second, the issue being the same, the defendant must have full opportunity for cross-examination. The strongest authority for the state in this case is Reg. v. Beeston, Dears. Cr. Cas. p. 405. But we may say, in short, that that and various other cases establish this proposition: That where the defendant was examined before the committing magistrate on a charge of assault and battery with intent to kill and murder, and the injured party testified against him, under oath, and was fully cross-examined, his testimony is competent against the accused on a trial for murder in the circuit court; the injured party having in the meantime died. Obviously the issue in such case is substantially the same. In the Case of Beeston, supra, at page 409, the eminent counsel for the prisoner (Mr. Huddleston) was asked, "Can you suggest any question material on the one charge, and not on the other?" And he was not able to do so. But it must be obvious that there are very many questions which might be appropriately asked on the charge of robbery which would not necessarily or perhaps ordinarily be asked on the charge of murder. We have given the question the most careful consideration, and in view of the doctrine of this court in the Owens Case, supra, and the manifest caution and jealous care to preserve the constitutional guaranty characterizing the decisions of the courts elsewhere, we are constrained to hold that there is substantial merit in the contention that the issue on the charge of robbery is not substantially the same, within the meaning of this rule of evidence, with the issue on the charge of murder in the circuit court, although the blow inflicted in effecting the robbery was the same which caused the subsequent death. It must be perfectly clear that the issue -the offense charged-is substantially the same, so that the questions asked to make out the one offense would be the same as those asked to make out the other, else the rule is not satisfied, and the testimony is incompetent. We refer especially to note in 61 Am. St. Rep. 891, where the rule is thus stated: "From among the multitude of cases sustaining this rule that the testimony of a witness for the state, given on a preliminary examination or former trial of the accused, who was present and had reasonable

opportunity to cross-examine the witness, is competent against the defendant on his subsequent trial for the same charge,-the witness having died since giving his testimony, and before the subsequent trial,-may be cited the following authorities, in addition to those already noticed." And a multitude of the most recent authorities are then quoted in support of the rule as stated. And also to the note Bergen v. People, 65 Am. Dec. 676, and Brown v. Com., 73 Pa. 321, 13 Am. Rep. 740. See specially, also, 2 Am. & Eng. Enc. Law (2d Ed.) pp. 526, 527, with notes. It will be noticed, in Beeston's Case, supra, that the observation of Jervis, C. J., at page 413, to the effect that the charge before the magistrate may not be the same technical charge on which he is afterwards tried, was made in construction of the act of 11 & 12 Vict., which is set out at page 406, and not as stating the rule in the absence of statute. It will be further noticed that in Owens v. State, 63 Miss. 452, the language is that the testimony must be "given under oath in a judicial proceeding between the same parties on the same issue." We hold that it is enough if the issue be substantially the

same.

It follows that the judgment must be reversed, and a new trial awarded.

CLARK v. ADAMS, State Revenue Agent. (Supreme Court of Mississippi. April 7, 1902.) INTOXICATING LIQUORS-PENALTY FOR ILLEGAL SALE-ATTACHMENT-SECONDARY EVI

DENCE-APPEAL-HARMLESS ERROR.

1. Acts 1900, c. 104, making the possession of a United States internal revenue license presumptive evidence that the holder is engaged in the sale of intoxicating liquors, does not authorize the admission of evidence in a suit by the state revenue agent under Code 1892, § 1590, for a penalty given by the act for the illegal sale of liquors, that defendant is in possession of such a license, unless he has been given notice to produce the license, as the former statute does not modify the best evidence rule.

2. Where the evidence shows that judgment was properly rendered against defendant, the eause will not be reversed by reason of the admission of evidence of defendant's possession of a United States internal revenue license, without prior notice to defendant to produce it.

3. Evidence that a farmer had a room in his dwelling house in which were whisky and other liquors, and that he sold two flasks of whisky to two men who called for it, is sufficient to authorize a judgment against him, under Code 1892, § 1590, providing that any person who shall sell or give away liquor unlawfully at his place of business shall be subject to a penalty; and it is not necessary that he carry on any other business at such place.

4. A prior assessment of a penalty is unneeessary before an action for the penalty under Code 1892, § 1590, providing a penalty for the illegal sale of liquor, and authorizing the state revenue agent or sheriff to assess and collect the same, and authorizing suit therefor.

5. The plaintiff in a suit under Code 1892. § 1590, providing a penalty for the illegal sale of liquor. and authorizing the issuance of an attachment, is only required to show an illegal

sale sufficient to authorize the attachment, and it is not necessary that there be a trial as to the question of debt, as the penalty attaches if plaintiff is guilty.

Appeal from circuit court, Madison county; Robt. Powell, Judge.

Action by Wirt Adams, state revenue agent, against Bryant Clark, for a penalty for the illegal sale of liquor. From a judgment for plaintiff, defendant appeals. Affirmed.

This suit was instituted by the state revenue agent, by attachment, under section 1590 of the Code of 1892, against the appellant, to recover of him the statutory penalty for unlawfully selling liquor. Section 1590 is as follows: "Any person who shall sell or give away liquors unlawfully, or allow the same to be sold or given away at his place of business, for any purpose whatever, shall be subject to pay the state, county, and city, town, or village where the offence is committed, each, the sum of five hundred dollars; and it shall be the duty of the sheriff and state revenue agent, or either, to assess and collect such sums whenever he is informed that such sales or gifts have been made; and such person shall be liable to a criminal prosecution, as in other cases, and, in addition, the state, county, city, town or village may sue for and recover civilly, either jointly or separately, each, the said sum of five hundred dollars; and such civil suit may be commenced by attachment without bond." At the trial of the case in the court below a motion was made by appellant to quash and abate the affidavit and writ of attachment, defendant setting up in said motion the following grounds: That there was no legal assessment of the defendant for taxes, and no demand upon him to pay the same under said assessment, and until such is done no writ of attachment can issue; that, no legal assessment having been made by an officer authorized to make same, and no demand having been made upon defendant for payment of said sum sued for, and no statement that such had been done in the affidavit, said affidavit is premature, unauthorized, and void; that the affidavit does not show that defendant had been given notice that this tax was claimed or assessed, and that this attachment was sued without any assessment having been made by any proper officer, as required by law; that there is no allegation that selling or giving away liquor was the usual business of the defendant; that the affidavit nor writ did not allege that the selling or giving away of liquors unlawfully or the permission of same to be sold or given away was the usual or ordinary business in which defendant was engaged, nor that defendant had a place of business for such purpose. This motion was overruled, and defendant pleaded the general issue, and testimony was taken on the attachment issue. The evidence in the record shows that the appellant was a farmer, who