Opinion
No. 41059.
December 15, 1958.
1. Criminal law — incest — indictment charging white woman with unlawful cohabitation with Negro man based on incestuous marriage statute charges no crime — accused's motion to withdraw guilty plea and set aside judgment should have been sustained.
An indictment charging a white woman with unlawful cohabitation with a Negro man under statute providing that persons whose marriage is prohibited by law by reason of race or blood "and which marriage is declared to be incestuous and void" who shall cohabit shall be guilty of a felony, charged no crime since a marriage between a white person and a Negro would not be incestuous but would be miscegenetic, and Circuit Court should have noticed the fatal error in indictment, and should have sustained defendant's motion to withdraw her plea of guilty and to set aside the judgment based thereon. Sec. 2000, Code 1942.
Headnote as approved by Ethridge, J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, J.
Colin Stockdale, L. Percy Quinn, Jackson, for appellant.
I. The refusal of the Court to permit the defendant below to withdraw her plea of "guilty" and enter a plea of "not guilty" and proceed to the trial of this cause on its merits amounted to an abuse of discretion of the Trial Judge under all of the facts and circumstances revealed by the record in this cause. Pittman v. State, 198 Miss. 797, 23 So.2d 685; Stafford v. State (Miss.), 55 So.2d 477; 17 C.J., Criminal Law, Secs. 3570-3590; 22 C.J.S., Sec. 421 p. 64.
II. The Court erred in refusing to set aside the defendant's plea of "guilty" upon motion duly and timely made and permit her to enter a plea of "not guilty" to the indictment returned against her, for the reason that Section 2000 of the Mississippi Code of 1942 and laws amendatory thereof is in violation of Article 3, Section 14, of the Bill of Rights under the Constitution of the State of Mississippi and also Amendment V to the Constitution of the United States, and being a denial of due process and the equal protection clauses of Section 1 of Amendment XIV to the Constitution of the United States. Perez v. Sharpe "Lippold", 32 Cal.2d 711, 198 P.2d 17; Pace v. State of Alabama, 106 U.S. 583; Amends. V, XIV, U.S. Constitution; Sec. 14, Constitution 1890; Secs. 1998, 2000, Code 1942.
III. Section 2000 of the Mississippi Code of 1942 and laws amendatory thereof is simply a legislative attempt to modify Section 1998 of the Mississippi Code of 1942 and laws amendatory thereof which fully and completely covers the crime of adultery or fornication but with a different penalty provided; said crime being punishable under Section 1998 as a misdemeanor with a maximum penalty of a $500 fine and six months imprisonment in the County Jail whereas said Section 2000 specifically sets out that an act of adultery or fornication between persons of different races shall be punishable as a felony with a maximum penalty therefor of ten years in the State Penitentiary.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. It is within the discretion of the Trial Judge as to whether or not a defendant would be allowed to withdraw a guilty plea and substitute a plea of not guilty. Stafford v. State (Miss.), 55 So.2d 477; Perciful v. Holley, 217 Miss. 203, 63 So.2d 818; Anderson v. State, 189 Miss. 222, 196 So. 691; Keys v. State (Miss.), 55 So.2d 471.
II. Section 2000 of the Mississippi Code of 1942 is constitutionally valid. Ratcliff v. State, 234 Miss. 724, 107 So.2d 728; Pace v. Alabama, 106 U.S. 583, 27 L.Ed. 207, 1 S.Ct. 637; 36 Am. Jur. 452; Anno. 3 A.L.R. 1616; 58 C.J.S. 812.
III. Justice William N. Ethridge committed error in allowing bail. People v. Goddard, 83 Cal.App. 40, 256 P. 440.
APPELLANT IN REPLY.
I. Judge Ethridge was eminently correct in granting the appellant bail pending the final disposition of this cause. Ex parte Atkinson, 101 Miss. 744, 58 So. 215; Crosby v. State, 125 Miss. 433, 88 So. 3; Ex parte Willette, 219 Miss. 785, 63 So.2d 52; Ex parte Wheeler (Miss.), 24 So. 261; Ex parte Patterson, 56 Miss. 161; Sec. 1180, Code 1942.
The decision in this case is controlled by that in No. 41,052, Daisey Ratcliff v. State, decided today.
Appellant, a white woman, was indicted in the Circuit Court of Jones County under Miss. Code 1942, Sec. 2000, as amended by Ch. 241, Laws of 1956, for unlawfully cohabiting with a Negro man. Without advice of counsel, she pleaded guilty, and was sentenced to fifteen months in the penitentiary. At the same term of court, she employed an attorney and moved for leave to withdraw her plea of guilty, to set aside the judgment based thereon, and to be permitted to plead not guilty to the charge. She averred in the motion that she was not guilty and had a meritorious defense; that she entered the plea under the mistaken idea that she would receive a small fine, and in order to protect the good name and reputation of her four children. After a hearing, the circuit court overruled the motion, from which action she appealed.
(Hn 1) In Ratcliff v. State, supra, it was held that Code Sec. 2000, as amended by Ch. 241, Laws of 1956, makes the existence of an incestuous relationship an element of the crime; that this Court must apply the plain terms of the act, and cannot amend it so as to make persons subject to punishment under it who are not otherwise punishable under it by its express terms. A marriage between a white person and a Negro would not be incestuous; it would be miscegenetic. In Ratliff and in the instant case, the State does not contend that any incestuous relationship is involved. The indictment against appellant charges that appellant is a white woman and the man is of the Negro race. The evidence on the hearing of the motion reflected those facts. It is undisputed that the prosecution was under Code Sec. 2000, as amended. Since the indictment therefore charged no crime under that statute, the circuit court should have noticed that manifest and fatal error in the indictment, and should have sustained appellant's motion to withdraw her plea of guilty and to set aside the judgment based thereon. Hence the order of the circuit court overruling that motion, from which this appeal was taken, is reversed, judgment rendered here sustaining the motion, and the cause is remanded.
Reversed, judgment rendered sustaining motion, and cause remanded.
McGehee, C.J., and Hall, Lee and Holmes, JJ., concur.