Summary
In Brewsaw v. State, 168 Miss. 371, 151 So. 475 (1933), Brewsaw was indicted, tried and convicted as a felony offender for the unlawful possession of intoxicating liquor.
Summary of this case from Page v. StateOpinion
No. 30855.
December 11, 1933.
1. INDICTMENT AND INFORMATION. Indictment charging possession of intoxicating liquor after two previous convictions in court of competent jurisdiction, but failing to charge that prior convictions were under same statute, or to specify court, held insufficient to charge third offense ( Code 1930, section 1974; Constitution 1890, section 26).
Indictment was insufficient because Code 1930, section 1974, prohibiting possession of intoxicating liquors, makes punishment prescribed for third offense applicable only if prior convictions were for violations of the same statute, and because Constitution 1890, section 26, requires the indictment to be specific enough to inform defendant of the nature and cause of the accusation against him so as to enable him to prepare and present his defense thereto.
2. INDICTMENT AND INFORMATION.
Where indictment insufficiently charged third offense of possessing intoxicating liquors, constituting felony, defendant could not be sentenced for first or second offense, constituting misdemeanor, since he was entitled to stand on demurrer to indictment and not introduce defense on issue of guilt (Code 1930, section 1974; Constitution 1890, section 26).
APPEAL from Circuit Court of Jones County.
F.B. Collins, of Laurel, for appellant.
If will be noted that the indictment does not charge that the defendant was twice before convicted for a violation of section 1974 of the Code, but merely charges that he had been previously convicted twice for the unlawful possession of liquor. This is not a sufficient charge to bring it within the purview of the statute.
It is necessary in an indictment under article (c) of the above statute, that it allege the former convictions, and that they were for the violation of this statute.
Robinson v. State, 109 Miss. 284, 68 So. 249; Hoggett v. State, 101 Miss. 269, 57 So. 812; Britton v. State, 101 Miss. 584, 58 So. 530; State v. Gordon, 35 Mont. 548, 90 P. 173.
The court erred in admitting certain testimony on behalf of the state, and over the objection of appellant with reference to two former convictions.
State v. Boroum, 105 Miss. 887, 63 So. 297 and 457. Wm. H. Maynard, Assistant Attorney-General, for the state.
The lower court properly overruled appellant's demurrer to the indictment.
On examining the indictment it will be seen that, regardless of whether it could be sustained as properly charging two former convictions, that it does correctly and definitely set out the crime of unlawfully possessing intoxicating liquor.
Defective averments respecting a former conviction for the same offense incorporated in an indictment as a basis for the infliction of an additional penalty do not vitiate the whole indictment and any demurrer to such indictment should be overruled and defendant put to trial on principal offense charged.
State v. Savage, 86 W. Va. 65; State v. Thornton, 63 N.H. 115; Satterfield v. Commonwealth, 105 Va. 867; 31 C.J. Indictments, sec. 286.
The testimony with reference to two prior convictions of appellant was proper.
Unessential technicalities as against indictments are fast losing ground.
State v. Ingram (Miss.), 146 So. 638.
It is not necessary to allege previous convictions with the same particularity as if the party was charged originally with the commission of such an offense.
31 C.J., Indictments, sec. 283; 14 R.C.L., Indictments, sec. 35.
Appellant was indicted, tried, and convicted in the circuit court of Jones county for possessing intoxicating liquor, in violation of section 1974, Code of 1930. The indictment attempted to charge that appellant had been twice before convicted for the same offense. He was sentenced to the penitentiary for a term of two years, and from that judgment this appeal is prosecuted.
Section 1974 of the Code of 1930 is in this language:
"If any person shall sell or barter, or give away or keep or have in his possession, except as hereinafter authorized, any vinous, alcoholic, malt, intoxicating or spirituous liquor, or intoxicating bitters or drinks, which if drunk to excess will produce intoxication, such person, and all others who may have owned or had any interest at the time in the liquors, bitters or drinks sold or bartered, or kept or in possession contrary to law, shall on conviction, be punished as follows:
"(a) By a fine of not less than one hundred dollars, nor more than five hundred dollars, or by imprisonment in the county jail not less than one week nor more than three months, or both, for the first conviction under this section.
"(b) By a fine of not less than one hundred dollars and by imprisonment in the county jail not less than sixty days, nor more than six months, for the second conviction for violating this section.
"(c) By imprisonment in the state penitentiary not less than one year nor more than five years for conviction the third time under this section for the violation thereof after having been twice convicted of its violation."
The charging part of the indictment follows: "That John Brewsaw on the 22d day of May, 1933 in the county and district aforesaid having previously been convicted by a court of competent jurisdiction twice for the unlawful possession of intoxicating liquor in the Second Judicial District of Jones county, Mississippi, did then and there, unlawfully, feloniously and wilfully have in his possession intoxicating liquor against the peace and dignity of the state of Mississippi."
Appellant demurred to the indictment. The ground of the demurrer was that the indictment failed to properly charge that appellant had been previously twice convicted for the same offense. It will be observed that the statute provides that the first two convictions under it shall be punishable as misdemeanors, while the third conviction is punishable as a felony — not less than one nor more than five years in the state penitentiary. The indictment charges that appellant had been previously "convicted by a court of competent jurisdiction twice for the unlawful possession of intoxicating liquor in the Second Judicial District of Jones county, Mississippi." It fails to charge in what court or courts the convictions took place and when they took place, and it fails to charge that they were convictions under this statute.
Under section 26 of the Constitution, an indictment must be specific enough to inform the defendant of the nature and cause of the accusation against him so as to enable him to prepare and present his defense thereto.
Under the statute the unlawful possession alone of intoxicating liquor is not a felony; it is the third offense that constitutes the felony. The first two convictions are therefore essential elements of the felony; without them there is no felony; they are just as much a part of the felony as the unlawful possession of the liquor. Furthermore, to constitute a felony the two previous convictions must be under the same statute. The indictment, therefore, should have charged that the two previous convictions were for a violation of this particular statute, and in what court or courts they were had and when.
Robinson v. State, 109 Miss. 284, 68 So. 249; Hoggett v. State, 101 Miss. 272, 57 So. 812, and Britton v. State, 101 Miss. 584, 58 So. 530, although not directly decisive, point in the direction of what we are holding. These questions are discussed in the text, and the notes thereto, in 31 C.J., pp. 734, 735, sections 282, 283. We hold, therefore, that the indictment failed to sufficiently charge the felony, and the demurrer thereto should have been sustained.
It is argued, however, on behalf of the state that conceding the indictment failed to properly charge the felony, it was sufficient to charge a misdemeanor, and there being no conflict in the evidence as to appellant's guilt, the judgment of the trial court should be affirmed and the case remanded for proper sentence for the misdemeanor. We do not pass on the question of whether the indictment should be treated as one for a misdemeanor instead of a felony, for these reasons: The state attempted to charge and try appellant for a felony, not a misdemeanor. The appellant was therefore called on to defend the charge of felony, not the charge of a lesser offense. The charge of felony was void for the reason above stated. Appellant properly raised that question by his demurrer. He had a right to stand on that proposition and decline to introduce any defense he might have had. He took that course and introduced no evidence bearing on the issue of his guilt. If he had been called on to defend a charge of a misdemeanor, he might have seen fit to pursue a contrary course.
Reversed and remanded.