Summary
In Ellis v. State, 203 Miss. 330, 33 So.2d 838 (1948), the defendant's conviction of a second offense of unlawful possession of intoxicating liquors was reversed.
Summary of this case from Mabry v. StateOpinion
No. 36631.
February 9, 1948.
1. CRIMINAL LAW.
An offense punishable by imprisonment in penitentiary is a "felony."
2. CRIMINAL LAW. Indictment and information.
Where affidavit charged commission of second offense of possessing a gambling device in violation of statute providing that in event of second conviction accused shall be subject to sentence of not less than six months in county jail nor more than two years in state penitentiary, the affidavit charged a felony, and therefore justice of peace was without authority to do more than require accused to give bail for appearance in circuit court to await action of grand jury, and circuit court had no jurisdiction to try accused without an indictment (Code 1942, sec. 2047).
APPEAL from the Circuit Court of Holmes County.
Jackson, Young, Daniels Mitchell, of Jackson, for appellant.
The conviction of the appellant was null and void because he was charged with and convicted of an indictable offense but was proceeded against criminally by information contrary to Section 27, Constitution of 1890.
State v. Sansome, 133 Miss. 428, 97 So. 753; Code of 1942, Secs. 1831, 1835, 2047; Constitution of 1890, Sec. 27; 42 C.J.S. 838, Sec. 9; 27 Am. Jur. 587, Sec. 5.
The court erred in submitting the question of appellant's guilt to the jury on the only instruction appearing in the record.
Cummins v. State, 144 Miss. 634, 110 So. 206; Upton v. State, 143 Miss. 1, 108 So. 287; Thompson v. State, 158 Miss. 121, 130 So. 112; Southern R. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Yazoo M.V.R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 85 L.Ed. 1495, 1506; United States v. Harris et al., 45 F.2d 690; United States v. Levy, 153 F.2d 995; Corson v. United States, 147 F.2d 437; 53 Am. Jur. 494, Sec. 639; 23 C.J.S. 741, Sec. 1194.
The court erred in submitting the question of appellant's guilt to the jury, there being no evidence to sustain their verdict.
City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785; Harness v. State, 130 Miss. 673, 95 So. 64; Brazeale v. State, 133 Miss. 171, 91 So. 525; Garland v. State, 165 Miss. 136, 146 So. 637; Ricks v. State, 146 Miss. 659, 111 So. 752; King v. McCrory, 179 Miss. 162, 175 So. 193; State v. Stigler, 179 Miss. 276, 175 So. 194; Code of 1942, Sec. 2047; Black's Law Dictionary (3 Ed.), word "possessed."
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The court having no jurisdiction to try the case, its judgment must be reversed and the cause should be remanded to the court below with leave to amend the affidavit should the State desire so to do, and if the State does not desire to amend the affidavit the defendant should be held under his bond to await the action of the grand jury.
Millwood v. State, 190 Miss. 750, 1 So.2d 582; Trivillion v. State, 195 Miss. 308, 15 So.2d 285; Singleterry v. State (Miss.), 4 So.2d 234; Brewsaw v. State, 168 Miss. 371, 151 So. 475; Code of 1942, Secs. 677, 1831, 2045, 2047, 2451, 2535; Constitution of 1890, Sec. 171.
Argued orally by Joe H. Daniel, for appellant, and by Geo. H. Ethridge, for appellee.
The appellant, O.E. Ellis, was tried and convicted on an affidavit, before a justice of the peace, for the commission of the second offense of having in his possession a gambling device, commonly known as a slot machine, contrary to the provisions of Section 2047, Code 1942, and was sentenced to serve a term of six months in the county jail. From this conviction and sentence he appealed to the circuit court, was tried de novo on this affidavit, was again convicted and sentenced to a term of six months in the county jail, and also to pay a fine of $250.
The statute in question makes the first offense a misdemeanor, provides for the assessment of a fine not exceeding $250, or imprisonment in the county jail not exceeding three months, or both, in the discretion of the court; and it further provides that in the event of a second conviction, the accused shall be subject to a sentence of not less than six months in the county jail nor more than two years in the state penitentiary, in the discretion of the trial court.
It was held in case of State v. Sansome, 133 Miss. 428, 97 So. 753, 754, that, "In testing an offense as to whether it is a felony or misdemeanor, the power given to imprison in the penitentiary determines it to be a felony. . . ." Therefore, the affidavit having charged a first offense and a conviction therefor prior to the alleged date of commission of the second offense for which the accused was then being tried, was a charge of the commission of a felony. Moreover, he was sentenced in the justice of the peace court to serve a term of six months, which was in excess of the punishment provided for the first offense — a misdemeanor — and on appeal he was also given a sentence of six months upon conviction in the circuit court.
The justice of the peace was without authority to do more than to require the accused to give bail for his appearance in the circuit court to await the action of the grand jury; consequently, the circuit court had no jurisdiction to try the accused for a felony without an indictment.
Therefore, the judgment appealed from must be reversed and the cause remanded, and the defendant held under his bond to await any further proceedings in the cause.
Reversed and remanded.