The defendant was indicted for the possession of non-tax-paid whisky on June 12, 1952. The indictment alleged: "This accusation is a special accusation and the charge contained herein applied to the day and date alleged and to no other." The defendant was convicted and duly filed his motion for new trial on the general grounds, and thereafter amended his motion by adding one special ground. We will not deal with the general grounds or the evidence, since the case must be reversed on the special ground. The special assignment of error was on the following excerpt from the charge of the court: "If you find at anytime within two years prior to the filing of this accusation into court, the defendant did have in his possession, custody or control, or have taken part in the possession, custody or control, aid and abet in possession, control or having in his possession, control and custody any amount of non-tax-paid whisky, if you believe that beyond reasonable doubt, it would be your duty to return the verdict of guilty."
Since this was a special accusation charging the defendant with illegal possession of non-tax-paid whisky on the specific date of June 12, 1952, he could not have been legally convicted of possessing whisky on any other date within two years prior to the filing of the accusation. This principle of law needs no further elucidation. However, we might add here that one witness for the State, the arresting officer, testified that the crime alleged to have been committed was "on or about the 12th day of June [no year specified]." The other witness for the State (there being only two) testified that the date the defendant was apprehended was August 12, 1952.
Hicks & Culbert, for plaintiff in error.