Opinion
No. 41767.
February 20, 1961.
1. Trespass — affidavit sufficient to charge offense.
Affidavit was sufficient to charge the offense of trespass. Chap. 246, Laws 1960.
2. Indictment — misdemeanor — only necessary that offense be substantially charged.
In misdemeanors, it is only necessary that the offense be substantially charged.
3. Criminal law — trespass — venue — State failed to prove.
Where in trial of a trespass case in the Circuit Court the State failed to prove in which supervisor's district the offense was committed, the cause must be reversed.
4. Appeal — constitutionality of statute decided only when necessary.
The Supreme Court will not pass upon the constitutionality of the statute unless such decision is necessary to dispose of the case.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Stone County; LESLIE B. GRANT, Judge.
Cornelius J. Ladner, Bay St. Louis, for appellant.
I. The trial court erred in overruling the demurrer to the affidavit, and in not sustaining same and discharging appellant for the following reasons:
II. The affidavit fails to charge a crime of any nature or misdemeanor.
III. The affidavit is fatally defective and void for want of jurisdiction as same was signed by an undesignated individual, namely, one W.D. Blackwell who is unidentified.
IV. The statute, House Bill No. 433 of the General Laws of Mississippi of the 1960 regular session, under which the action was brought and appellant charged with is void and unconstitutional as same is incapable of application for indefiniteness; it is so vague and uncertain as to make criminal an act which may be innocently done and is one that may be used in an arbitrary or discriminatory manner, the exercise of which may and did deprive appellant of due process of law and/or equal protection of the laws and in violation of the 14th and 5th amendment to the Constitution of the United States of America.
Collation of authorities: Moore v. State, 207 Miss. 140, 41 So.2d 368; Powell v. State, 196 Miss. 331, 17 So.2d 524; Amend. V, XIV, United States Constitution; Secs. 1832, 2473, 2614, Code 1942.
V. The trial court erred in not sustaining the motion for a new trial and overruling same for the following reasons:
A. The verdict is contrary to the law and the evidence.
B. The motion for a directed verdict should have been sustained as the State of Mississippi unequivocally failed to meet the burden of proof and failed to establish the guilt of the appellant beyond a reasonable doubt as charged in the affidavit.
C. The trial court had no jurisdiction in said cause for the want of venue or proof thereof as there is no proof or testimony whatsoever that the alleged crime or misdemeanor was committed in the district of the justice of the peace where the case originated.
Collation of authorities: Clark v. State, 230 Miss. 143, 92 So.2d 452; Crum v. State, 216 Miss. 780, 63 So.2d 242; Street v. State, 209 Miss. 735, 48 So.2d 358. G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The affidavit charges a crime. Harris v. State, 229 Miss. 755, 92 So.2d 217; State v. Needham, 182 Miss. 663, 180 So. 786, 116 A.L.R. 1100; Word v. State, 180 Miss. 883, 178 So. 821; Chap. 246, Laws 1960.
II. The affidavit was properly signed by W.D. Blackwell. Alpaugh v. Wolverton (Va.), 36 S.E.2d 906; Brown v. The Board of Topeka, 349 U.S. 294, 99 L.Ed. 1083, 75 S.Ct. 753; Civil Rights Cases, 109 U.S. 3, 27 L.Ed. 835, 3 S.Ct. 18; Connally v. General Construction Co., 269 U.S. 385, 70 L.Ed. 322, 46 S.Ct. 126; First Nat. Benefit Soc. v. Garrison, 58 F. Supp. 972; Fletcher v. Coney Island, 134 N.E.2d 371; Gorin v. United States, 111 F.2d 712; Gorin v. United States, 312 U.S. 19, 85 L.Ed. 488, 61 S.Ct. 429; Legal Tender Cases, 79 U.S. 574, 12 Wall. 457, 20 L.Ed. 287; Maryland v. Drews, 5 Race Relations Law Reporter, Summer 1960 Edition (No. 2) pp. 469, 470; Ratcliff v. State, 234 Miss. 724, 107 So.2d 728; Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498, 77 S.Ct. 1304; Slack v. Atlantic White Tower System, 181 F. Supp. 124; State v. Clyburn (N.C.), 101 S.E.2d 295; Tamelleo v. New Hampshire Jockey Club, Inc., 163 A.2d 10; Taylor v. State, 194 Miss. 1, 11 So.2d 663, 319 U.S. 583, 87 L.Ed. 1600, 63 S.Ct. 1200; Williams v. Howard Johnson's Restaurant, 268 F.2d 845; Wilmington Parking Authority v. Burton (Del.), 157 A.2d 894; Chap. 246, Laws 1960; 5 Race Relations Law Reporter, Fall 1960 Ed. (No. 3).
III. The Court properly denied the motion for a new trial.
IV. The verdict was in accordance with the law and the evidence.
V. As to proof of venue. Ball v. State, 202 Miss. 405, 32 So.2d 195; Clark v. State, 230 Miss. 143, 92 So.2d 452; Jones v. State, 230 Miss. 887, 94 So.2d 234; Travis v. State, 230 Miss. 578, 93 So.2d 468.
The appellant, Charlie M. Mitchell, was convicted in the Circuit Court of Stone County, from which judgment he appeals to this Court.
The prosecution was instituted in the Justice of the Peace Court in Stone County upon an affidavit charging him with the crime of trespass, based on Chapter 246, Laws of 1960.
(Hn 1) While the affidavit is inartfully drawn, it sufficiently charges the offense of trespass. (Hn 2) We have held that in misdemeanors it is only necessary that the offense be substantially charged. Sowell v. State, 102 Miss. 599, 59 So. 848. Consequently, it follows that the demurrers were properly overruled.
(Hn 3) In the trial of the case in the circuit court, the State failed to prove in which supervisor's district the offense was committed. Since venue was not proved, the cause must be reversed. Ellzey v. State, 110 Miss. 502, 70 So. 579; Waldrup v. State, 150 Miss. 302, 116 So. 432; Clark v. State, 230 Miss. 143, 92 So.2d 452.
(Hn 4) The appellant also contends that the act is unconstitutional, however, we do not reach this question as it is well settled that this Court will not pass upon the constitutionality of a statute unless such decision is necessary to dispose of the case. Gatlin, et al v. State, 207 Miss. 588, 42 So.2d 774.
Reversed and remanded.
Lee, P.J., and Kyle, Ethridge and Rodgers, JJ., concur.