Opinion
No. 38816.
October 19, 1953.
1. Names — identity of name and person previously convicted — prima facie evidence of person, in absence of rebutting testimony.
In prosecution for second offense of unlawful possession of intoxicating liquor, identity of name of person charged and person previously convicted of same offense in another county was prima facie evidence of person, and, in absence of rebutting testimony, was sufficient to support a finding of such identity so as to warrant application of statute authorizing additional punishment of one convicted of crime upon proof of former conviction. Sec. 2613, Code 1942.
Headnote as approved by McGehee, C.J.
APPEAL from circuit court of Monroe County; RAYMOND T. JARVIS, Judge.
D.W. Houston, Sr. and Jr., Aberdeen, for appellant.
I. The jury was allowed to view the liquor and were informed that same was taken from the appellant before it was introduced and allowed as evidence before the jury. This was highly prejudicial to the defendant's rights as the jury was informed before being qualified that said intoxicating liquor was the property and was in possession of the defendant J.B. Jordan and defendant was entitled to a mistrial.
II. The court erred in allowing any and all evidence to be introduced under the search warrant. The appellant bases his contention on the fact that there was no affidavit for a search warrant made. Turner v. State, 133 Miss. 738, 98 So. 240; Adams v. State, 202 Miss. 68, 30 So.2d 593; Pickle v. State, 151 Miss. 549, 118 So. 625; Cuevas v. City of Gulfport, 134 Miss. 644, 99 So. 503; Wells v. State, 135 Miss. 764, 100 So. 674; Nelson v. State, 137 Miss. 170, 102 So. 166.
III. The court erred in receiving the evidence of a prior conviction for the possession of intoxicating liquor. There is no direct proof of a prior conviction of appellant and the only evidence introduced was a certified copy of a judgment of conviction of a J.B. Jordan of Lowndes County, Mississippi, which is purely hearsay and we earnestly submit that the appellant was not proved to be one and the same person as the person who was convicted in Lowndes County, Mississippi.
Joe T. Patterson, Assistant Attorney General, Jackson, for appellee.
I. An opinion of a juror formed on rumor does not disqualify him if he is a fair and impartial juror. Donohue v. State, 142 Miss. 20, 107 So. 15.
II. The undisputed proof shows that the county prosecuting attorney made the affidavit for the search warrant before the search warrant was issued. Both affidavit and search warrant were produced and were in evidence before the trial court and are in the record before this Court. Sec. 1202, Code 1942; Hitt v. State, 149 Miss. 718, 115 So. 879.
III. At the beginning of the trial, the State offered a certified copy of a judgment of the circuit court of Lowndes County, wherein J.B. Jordan entered a plea of guilty to a charge of unlawful sale of intoxicating liquor and was sentenced to pay a fine of two hundred dollars and all costs. Said copy of the judgment of the circuit court of Lowndes County was duly certified to by the circuit clerk of Lowndes County, in accordance with Sec. 1725, Code 1942. The certified copy of the judgment of the circuit court of Lowndes County was introduced by the State herein without objection by the defendant. No objection having been made by the appellant to the introduction of the certified copy of the judgment of conviction of J.B. Jordan on a charge of the unlawful sale of intoxicating liquor in Lowndes County, Mississippi, and there being no contradiction of the fact that the J.B. Jordan named in the prior conviction in the circuit court of Lowndes County is the same as the appellant here, the trial court was warranted in sentencing the appellant herein as a second offender under Sec. 2613, Code 1942. The affidavit herein specifically charges the appellant with unlawful possession of intoxicating liquor in violation of Sec. 2613, Code 1942. Outlaw v. State, 208 Miss. 13, 43 So.2d 661.
On October 5, 1953, we affirmed, without a written opinion, the conviction of the appellant, J.B. Jordan, as a second offender in the violation of Section 2613, Code 1942, by having intoxicating liquor in his possession unlawfully. The first offense was established by the introduction in evidence of a certified copy of a judgment showing that a J.B. Jordan had entered a plea of guilty to the violation of this statute in the circuit court of the nearby county of Lowndes.
The sole ground now assigned as error is that our decision of October 5, 1953, had the effect of overruling the contention of the appellant that the State was required to offer affirmative evidence that the defendant in the instant case was one and the same person as the J.B. Jordan who entered the plea of guilty in Lowndes County.
This point was settled adversely to the appellant's contention in the case of McGowan v. State, 200 Miss. 270, 26 So.2d 70, where it was held on suggestion of error that (Hn 1) identity of name of defendant and person previously convicted is prima facie evidence of identity of person, and, in absence of rebutting testimony, supports a finding of such identity so as to warrant application of statute authorizing additional punishment of one convicted of crime upon proof of former conviction. To the same effect is the civil case of McLeod v. Bridges, 180 Miss. 585, 178 So. 321, as to presumption from identity of name.
Suggestion of error overruled.
Lee, Kyle, Holmes and Lotterhos, JJ., concur.