CHARLES WEINERT, PLAINTIFF IN ERROR,

v.

THE STATE OF FLORIDA, DEFENDANT IN ERROR

Taylor, J.:

The plaintiff in error, upon information filed, was tried and convicted'of the misdemeanor of selling intoxicating liquors, at the Fall term, 1894, of the Circuit Court of Walton county, and sentenced to pay a fine of one hundred dollars and costs, and seeks a reversal or such judgment by writ of error. The first error assigned is that the court erred in rulingthat under the provisions of Chapter 4152 laws, approved June 2nd, 1893, the burden of proof was upon the defendant in such cases where it was shown that he had taken out a United States revenue license to engage in the business of selling spirituous, vinous or malt liquors. The statute referred to seems to provide that the holding, owning or purchase of a United States revenue license to sell spirituous, vinous or malt liquors by anyone shall bq prima facie evidence that such person is engaged in such business; and that the production of such Federal license or an authenticated copy thereof to a grand jury should authorize them to indict for the conduct of such business in counties where its conduct was prohibited by law; and that proof of the holding, owning or purchase of such Federal license, by the introduction of the original or a duly authenticated copy thereof, should be sufficient evidence, without explanation, upon which to convict.

The record shows that at the trial the State’s Attorney requested an adjournment of the case for one day to enable him to procure an authenticated copy of a United States revenue license for the sale of malt liquors that had been obtained by the defendant; whereupon the defendant admitted that he had such a license, endorsing such admission and his plea of not guilty together on the information filed. Thereupon the State’s Attorney read the said statute, Chapter-4152, and asked a judgment of conviction against the defendant unless he explained, or removed the statutory presumption arising from the holding of such Federal license. The court thereupon ruled: “That-the burden of proof be upon the defendant, but that it would be fair for the State to be required to prove,, and the State was required to prove, that it was intoxicating liquor that the defendant was charged with selling.” This ruling the defendant excepted to and assigns as error. After this ruling the State introduced various witnesses, who proved, not only the intoxicating character of the liquor sold by the defendant, but also his repeated sale of the same in Walton county. Under these circumstances no harm is shown to have resulted to the defendant, even were we able to say that the provisions of said statute, casting the-burden of proof upon a defendant who held a Federal license, was unconstitutional or void. Upon the validity of this statute we do not feel called upon now to pass, since its provisions were not enforced or relied upon in the case.

At the trial the defendant attempted to prove by one-R. 0. Allen, who was the editor of a newspaper published in said county, that he had received a communication for publication in his paper relative to the sale by the defendant of the article called “Hopfen Weiss,” that it was alleged he had sold in violation of law, counsel for the defendant stating at the same time that-he expected to show a combination against the defendant, but the court would not permit the proffered proof, and its rejection is assigned as error. If the defendant could have shown that there was an unlawful or malicious combination or conspiracy against him, of which this prosecution ' was the outcome,, and that the prosecuting witnesses were members of that conspiracy, and that the newspaper communication was a part of the plan of the conspiracy, then it would have been proper to have gone into it to show animus in the prosecutors, but with no further offer in connection with the newspaper-communication than the one made by counsel, viz: that he expected to show a combination against defendant, the court was right, in excluding it.

The third assignment of error is the refusal of the defendant’s request to give the following instruction: “If they (the jury) believe the evidence they will acquit the defendant.” There was no error here. The instruction was tantamount to the court telling the jury that the evidence offered for the State-was insufficient for conviction, if they believed it to be-true. The evidence was conflicting, but had it not been for the omission in the proofs that we will presently notice, there was evidence on behalf of the State upon which, if the jury had convicted, we would not have-felt authorized to disturb their finding.

The refusal of the defendant’s motion for a new trial is also assigned as error. One of the grounds of this, motion is that, the verdict is not supported by the evidence. The information alleges that the offense it charges was committed on the 15th day of September, 1894, but in the proofs brought here in the record there is not a scintilla of evidence to show when the offense was committed, or whether it was done prior or subse quent to tlie filing of the information, or whether it was done within two or within ten years before the information was filed. While it is generally not necessary co prove the exact date alleged in such cases, yet it is necessary and material in all such cases for the State to prove that^the offense charged was committed within the limited" statutory period of two years prior to the finding of the indictment, or filing of the information, as the case may be; and if such proof is not made a conviction can not be sustained. Warrace vs. State, 27 Fla. 362, and cases cited.

For the errors found the judgment below is reversed .and a new trial awarded.