Summary
finding indictment for a second-offense crime does not cause the charge to be barred by the statute of limitations by referring to former offense which was barred by the statute of limitations
Summary of this case from Killen v. StateOpinion
No. 36027.
March 11, 1946. Suggestion of Error Overruled May 13, 1946.
1. CRIMINAL LAW.
The two-year statute of limitations applies solely to prosecutions, and does not preclude conviction as a second offender based on a conviction more than two years prior to instant indictment (Code 1942, sec. 2613).
2. CRIMINAL LAW.
Under statute making it unlawful to sell or barter or give away or keep or have in possession intoxicating or spirituous liquor, and providing an increased penalty for second conviction for violating the statute, one convicted of an unlawful sale of liquor may be subsequently convicted of possession on another occasion as a second offender (Code 1942, sec. 2613).
3. INDICTMENT AND INFORMATION.
An indictment alleging in substance that defendant possessed liquor in violation of specified section of statute, and that it was the second time such offense had been committed, and that he had been theretofore convicted in the circuit court of designated county on definite date, was sufficient though not alleging that prior conviction was under specified section of statute (Code 1942, sec. 2613).
SYDNEY SMITH, C.J., and ROBERDS and L.A. SMITH, SR., JJ., dissenting.
ON SUGGESTION OF ERROR. (In Banc. May 13, 1946.) [26 So.2d 70. No. 36027.]CRIMINAL LAW. Names.
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.
APPEAL from the circuit court of Jefferson Davis county, HON. J.C. SHIVERS, Judge.
G.L. Martin, of Prentiss, for appellant.
The indictment charges no crime known to the law, and a demurrer is here filed to this indictment, the appellant having been tried in the lower court in his absence and without any attorney, and the lower court was in error in trying and sentencing appellant under an indictment that charged no crime.
Brewsaw v. State, 168 Miss. 371, 151 So. 475; Millwood v. State, 190 Miss. 750, 1 So.2d 582; Rogers v. State, 198 Miss. 495, 22 So.2d 550; Herron v. State, 118 Miss. 420, 79 So. 289; Code of 1942, Sec. 2613; Constitution of 1890, Secs. 14, 26.
The trial court was in error in trying the appellant in his absence and without an attorney at a time when appellant was unable by reason of severe knife injuries to be present at his trial, which facts are set up in the motion and affidavits for writ of certiorari to send up to this Court the physician's certificate which is now before this Court.
Newcomb v. State, 37 Miss. 383; Haggett v. State, 99 Miss. 844, 56 So. 172; Johnson v. State, 108 Miss. 709, 67 So. 177; Sullivan v. State, 150 Miss. 204, 116 So. 612; Cruthirds v. State, 190 Miss. 892, 2 So.2d 145; Ellerbe v. State, 75 Miss. 522, 22 So. 950; Code of 1942, Sec. 2519; Constitution of 1890, Sec. 26.
The proof as shown in the record is not sufficient and the trial and conviction was contrary to law and does not overcome the presumption of innocence. The appellant was denied his rights under Section 26 of the Constitution and was denied a fair and impartial trial as required by law.
Illinois Cent. R. Co. v. Walker, 116 Miss. 431, 77 So. 191.
The court below was in error in admitting the testimony under the search and seizure.
Ford v. City of Jackson, 153 Miss. 616, 121 So. 278; Code of 1942, Secs. 8082, 8229-8248, 8263, 8278.
The judgment is void for the reason that the minutes of the court below do not show affirmatively where the court was held and do not show on what date it was adjourned.
Steverson v. McLeod Lumber Co., 120 Miss. 65, 81 So. 788; Arbour v. Yazoo M.V.R. Co., 98 Miss. 714, 54 So. 158; Jones v. Williams, 62 Miss. 183; Watson v. State, 166 Miss. 194, 146 So. 122; Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901.
Section 2436, Code of 1942, applies only to defects that may be waived. It does not apply to constitutional rights. Constitutional rights cannot be waived.
Newcomb v. State, supra.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
Affidavits of counsel and clerk and certificate of physician filed August 24, 1945, do not constitute part of the record in this cause and Supreme Court cannot establish a record for circuit court.
Coleman v. Bowman, 135 Miss. 137, 99 So. 465; Imbragulio v. Hebert, 171 Miss. 505, 158 So. 138.
Trial of cause earlier than parties thereto or their counsel anticipates is not ground for continuance of the case although one of the parties is not then prepared for trial; absence of party to a cause is no cause for continuance when called for trial unless his presence is shown to be necessary for proper presentation of case; certificate of physician is not competent evidence of illness of party to a case.
Coleman v. Bowman, supra; Imbragulio v. Hebert, supra.
Trial for misdemeanor in absence of defendant is authorized where defendant is under bond and fails to appear. Trial of appellant in this case was regular and in accordance with statute. There is no showing in the record of anything which would excuse the failure of appellant to appear for trial and no showing was made before trial court as to what the testimony of appellant would have been had he been present and testified.
King v. McWhorter, 174 Miss. 187, 163 So. 679; Code of 1942, Sec. 2519.
Appellant has no right to review, on appeal, the proceedings in circuit court by which he was tried, convicted and sentenced, all of which appear to be regular, since he failed to appear and raise proper questions as to such proceedings before verdict was rendered.
Code of 1942, Secs. 1544, 2436.
Questions as to sufficiency of indictment cannot be raised on this appeal since appellant did not file a demurrer for defects appearing on the face of the indictment as provided by law and did not file a motion to quash if evidence of sale of liquor was improperly had before the grand jury.
Code of 1942, Secs. 2449, 2450.
In charging a second offense under Section 2613, Code of 1942, a first conviction would not be barred if it was secured more than two years prior to the date on which the second offense was committed.
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; Code of 1942, Sec. 2437; 58 A.L.R. 20 et seq.; 82 A.L.R. 345 et seq.
Proof of a prior conviction of the sale of intoxicating liquor is admissible evidence on trial of defendant charged with possessing intoxicating liquor.
Trivillion v. State, supra; Code of 1942, Sec. 2613.
In proving a former conviction, it would appear to be necessary to produce proof that the person being tried as a second offender is the same person who was convicted on a prior trial and that it would be necessary to introduce the clerk or custodian of the court records to identify the judgment in the former trial.
It seems to me that, where a person is tried in his absence and without counsel, witness or instructions, he has waived his rights by failing to appear in the manner authorized by law and to raise such questions as may be proper in the trial court.
G.L. Martin, of Prentiss, for appellant, on suggestion of error.
While the identity of name is some evidence of identity of person, and may in some cases be sufficient to establish such identity, according to the weight of authority, where the State desires to impose a more severe penalty on account of defendant having been previously convicted, identity of name is not sufficient to establish the identity of accused with that of the one previously convicted; it must be supplemented by other proof. The evidence of defendant's identity must relate to his identity while in custody under the prior sentence.
State v. McCarty (Iowa), 230 N.W. 379; State v. Logle, 204 Iowa 116, 214 N.W. 490; 16 C.J. 1345, Sec. 3165.
Plea of not guilty to an indictment alleging a former conviction of defendant puts in issue not only all matters of fact essential to the crime for which he is being tried, but also the fact of the alleged former conviction.
Com. v. Tallman, 19 Pa. Dist. 879, 880; Com. v. Briggs, 5 Pick. (Mass.), 424; State v. Lashus, 79 Me. 504, 11 A. 180; State v. Dugas (La.), 127 So. 345; 16 C.J. 1346, Sec. 3169, note 64; 6 A. E. Ann. Cas. 1026.
The reading of the former convictions to the jury was an invasion of appellant's constitutional right. They were prejudicial and put in issue his character.
McWhorter v. State, 118 Ga. 55, 44 S.E. 873; Com. v. Burwell, 21 Pa. Dist. 197, 200; Code of 1942, Sec. 2613; 1 Bishop's New Criminal Law, Sec. 961.
As I understand it, Section 2613, Code of 1943, in substance is this: It is an habitual criminal act. There is a penalty for the first violation of it. In charging the first violation it is not necessary, although it might well be done, to charge it is under this section, for then you are charging crime per se. But when you charge a second time, then you must charge the first violation was under "this section" or in violation of this statute. Unless you so charge, you are not in position legally to invoke the more severe penalty. Then when you charge a third time, you must charge the two former convictions were "under this section;" that is, this particular statutory set-up, and unless you so charge, you are not informing him of the nature and cause of the accusation; you are not informing him that it is laid under this "habitual criminal statute."
Millwood v. State, 190 Miss. 750, 1 So.2d 582; State v. Longino, 109 Miss. 125, 67 So. 902; Trivillion v. State, 195 Miss. 308, 15 So.2d 285; Brewsaw v. State, 168 Miss. 371, 151 So. 475; Rogers v. State, 198 Miss. 495, 22 So.2d 550; Code of 1942, Sec. 2613.
Argued orally by G.L. Martin, for appellant, and by Geo. H. Ethridge, for appellee.
Appellant was convicted under Code 1942, Section 2613, as a second offender. The statute makes it unlawful and punishable for one to "sell or barter, or give away or keep or have in his possession . . . intoxicating or spirituous liquor . . ." Subsection (b) thereunder provides for an increased penalty "for the second conviction for violating this section."
The indictment alleges that the offense charged was committed in December 1944 "at a time when he, the defendant, had previously, to-wit, Sept. 6, 1939, been duly and legally tried and convicted for the unlawful possession of intoxicating liquor, whiskey, and had also previously, to-wit, August 31, 1944, been duly and legally tried and convicted for the unlawful sale of intoxicating liquor, whiskey, in and by the Circuit Court of Jefferson Davis County, Mississippi . . ."
We notice first the point that the indictment states no offense in that it refers the second offense to former offenses, for one of which the defendant had been convicted more than two years prior to the indictment above quoted. We are of the opinion that the two-year statute of limitations applies solely to prosecutions, and does not operate to recast the status of the defendant as a prior offender.
There is next assigned as error the alleged innate invalidity of the indictment arising out of the lack of identity between a sale of liquor and a subsequent possession thereof. The statute itself answers this contention. Aside from an argumentative view that sale implies possession, the statute places in the category of second offenders those who are guilty of "violating this section," which obviously means any act therein denounced.
We come next to the contention that the indictment fails to charge that the prosecution is had under Section 2613, Code 1942, as required by Rogers v. State, 198 Miss. 495, 22 So.2d 550. The principles stated in this case stem from Brewsaw v. State, 168 Miss. 371, 151 So. 475, 476. The language there used was as follows, "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."
It was noticed in the Rogers case that the necessity for citation of the particular statute under which conviction was sought was a requirement imposed by judicial construction in derogation of general rules of criminal procedure. Yet, the Brewsaw case was reversed upon the ground that the indictment "failed to sufficiently charge the felony." That this is true need be shown only by the fact that the prosecution and conviction were for a third offense when it was not alleged that the defendant had been theretofore convicted as a second offender.
Since an indictment for a first offense under this statute need not charge that it is under this particular section, it would seem that in charging a second offense it would not be necessary that the first offense be set forth with a greater particularity than was required in the first instance. Such reason as may be available to support the language of the Brewsaw case is exhausted in maintaining the proposition that an indictment for a second and third offense should exhibit for accreditation the number of the only statute from which the language of the charge was borrowed and under which prosecution by indictment could be had. For all the Court knew, the defendant in the Brewsaw case had been twice before convicted only as a first offender. His status as a convicted second offender was not alleged.
Millwood v. State, 190 Miss. 750, 1 So.2d 582, was dealing with a third offense. Here again the necessity that the indictment show that the defendant was charged as a third offender under the statute was stressed. It ought to appeal to reason that the requirement that an indictment of one as a repeater under this section need show only that such prosecution was under authority of that section. Every presumption would support the fact that if he had been formerly convicted as a second offender in the circuit court, such previous conviction was under an indictment which conformed to the same requirement. His status as a second offender under the statute presupposes a conviction of a first offense under the statute.
Rogers v. State, supra, likewise dealt with a third offense, and the Court seemed to construe the Brewsaw case as requiring only that "the second and third convictions must be 'under this section.'" [ 198 Miss. 495, 22 So.2d 551.] A second violation of a statute implies a former violation; so likewise a third violation implies a first and second. The allegation and proof that the prior convictions were in the circuit court of the county, together with the considerations hereinafter mentioned, put the case beyond the scope of Trivillion v. State, 195 Miss. 308, 15 So.2d 285.
The foregoing is discussion and not decision, but is given point by the necessity for construing the allegations of the indictment here. The charging clause which follows the excerpt above quoted is as follows: "did then and there on the date aforesaid, in the county aforesaid, wilfully and unlawfully have in his possession (and for a second time, having once been convicted for the possession of intoxicating liquor as aforesaid), certain intoxicating liquor, to-wit whiskey, in violation of and contrary to paragraph (b), Section 2613 of the Mississippi Code of 1942."
The three cases above cited have in common the requirement that subsequent offenders be proceeded against as such. To this end, it must be alleged that they have repeatedly violated the same section. Since we have but one such section, and since the indictment alleges in substance that the defendant possessed liquor in violation of Section 2613, and that this was the second time such offense had been committed and that he had been theretofore convicted in the Circuit Court of Jefferson Davis County, Mississippi, on definite dates, no defendant with a modicum of comprehension could fail to be adequately informed of the nature and cause of the accusation against him.
The lines with which we have heretofore bound this statute are too taut to be subjected to further strain.
Other assignments have been examined but found not to justify reversal.
Affirmed.
On the original submission appellant made the point, but without the citation of any of the authorities, that no proof was made that the Jack McGowan who was shown by the judgments, introduced in evidence, to have been formerly convicted, was the same person as appellant. He has renewed his insistence upon the point and cites the line of cases which hold that "to warrant the application of a statute authorizing additional punishment of one convicted of crime upon proof of former conviction, the identity of the accused and the one against whom the former judgments were entered must be established by affirmative evidence; mere proof of identity of names not being sufficient."
As against this view there is the line of cases which "holds that identity of name of the defendant and the person previously convicted is prima facie evidence of identity of person, and, in the absence of rebutting testimony, supports a finding of such identity."
The cases of most of them are collected in the notes to State v. Beaudoin, 131 Me. 31, 158 A. 863, 85 A.L.R. 1101, Notes pages 1107-1113, and having considered them, we concur in the view last stated; and because the contention might otherwise arise in these cases in the future, we add this supplement to the original opinion.
Suggestion of error overruled.
DISSENTING OPINION.
In order to bring this case within subsection (b) of Section 2613, Code 1942, this indictment should have alleged in substance and in proper form that Jack McGowan, in the county aforesaid and after having been convicted in a named court of competent jurisdiction of a violation of Section 2613, Code 1942, did, on the ____ day of August, 1944, have in his possession whiskey contrary to Section 2613, Code 1942, and against the peace and dignity of the State of Mississippi Brewsaw v. State, 168 Miss. 371, 151 So. 475; Millwood v. State, 190 Miss. 750, 1 So.2d 582; Rogers v. State, 198 Miss. 495, 22 So.2d 550. This indictment alleges the possession by the appellant of whiskey in December, 1944, contrary to Section 2613, Code 1942, but wholly fails to allege that either of the two former convictions referred to therein were for violations of that Section of the Code. The indictment, therefore, does not bring the case within subsection (b) of Section 2613, Code 1942. Consequently, under the authorities supra the judgment should be reversed and the cause remanded for trial and punishment under subsection (a) of that Section of the Code. L.A. Smith, Sr., and Roberds, JJ., concur in this dissenting opinion.
A good, though not the only, form for such an indictment would be (after setting forth the usual formal allegations) that on the ____ day of ____ John Doe was convicted in the Circuit Court of ____ County, Mississippi, of the possession (or sale, etc., as the case may be) in violation of Section 2613, Code 1942, and thereafter on the ____ day of ____, 19__, did in the county of ____, State of Mississippi, have in his possession (describe or name the liquor) contrary to the aforesaid Section 2613, Code 1942, and against the peace and dignity of the State of Mississippi. These blanks, of course, should be filled out and if the former conviction was in the court of a justice of the peace the allegation should conform thereto.