Buford v. State

111 So. 850, 146 Miss. 66, 1927 Miss. LEXIS 229

• Court: Mississippi Supreme Court
• Decided: February 21, 1927
• Docket: No. 25764.
• Status: Published

Opinions

^* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 1105, n. 11; 17CJ, p. 371, n. 49, 51. Indictment and Information, 31CJ, p. 758, n. 87; p. 777, n. 83. Intoxicating Liquors, 33CJ, p. 517, n. 60, 62; p. 576, n. 63. Juries, 35CJ, p. 229, n. 76. Statute, 36Cyc, p. 1060, n. 76; p. 1076, n. 39. As to whether indictment or information for unlawful sale of intoxicating liquor must state name of person to whom sale is made, see annotation in 23 L.R.A. 581; 5 A.L.R. 409; 15 R.C.L. 387; 3 R.C.L. Supp. 453; 5 R.C.L. Supp. 837. This is an appeal from a conviction for selling intoxicating liquor. The indictment alleges:

"That Mike Buford, in said county, on the 25th day of January, 1926, unlawfully did then and there sell vinous, malt, alcoholic, spirituous, and intoxicating liquors, against the peace and dignity of the state of Mississippi."

A demurrer to the indictment was overruled, and on the trial on the merits the state, over the appellant's objection, introduced evidence of more than one sale of intoxicating liquor made by him within two years anterior to the date laid in the indictment. The sentence imposed was a fine of two hundred fifty dollars and imprisonment for ninety days. The errors assigned are (1) the overruling of the demurrer to the indictment; (2) the admission of evidence of more than one sale; and (3) the sentence was imposed under section 2, chapter 210, Laws of 1922, which statute is void.

The ground of the demurrer is that the statutes prohibiting the sale of intoxicating liquor have been repealed by section 5, chapter 189, Laws of 1918, which provides:

"That no property rights of any kind shall exist in the liquors mentioned in section 1 of this act, or in any other liquors, liquids, bitters or drinks prohibited by the laws of this state to be manufactured, sold, bartered, or otherwise disposed of in this state," etc.

The argument in support of the demurrer is that there can be no sale of an article which the law does not recognize as property. Many authorities are cited which correctly define a sale as the term is ordinarily used in contracts, as a contract by which property is transferred from the seller to the buyer for a price in money paid or agreed to be paid by the buyer. That definition is of no value here, and the want of merit in the appellant's contention is so obvious that it will not be necessary to reply thereto in extenso.

Section 1746, chapter 40, Code of 1906, prohibits the sale of intoxicating liquor without a license therefor; and section 1748 thereof provides that — "There shall be no property in any intoxicating liquors kept or offered for sale in violation of law, or in any of the vessels or appliances used in connection therewith."

Chapter 115 of the Laws of 1908 amended section 1746 of the Code of 1906 by prohibiting absolutely the sale of intoxicating liquor, and re-enacted section 1748 thereof. Chapter 214 of the Laws of 1912 further amended the first of these sections by increasing the penalty for the sale of intoxicating liquor. Hemingway's Code, section 2086. Chapter 103 of the Laws of 1916 deals principally with the transportation of intoxicating liquor, but again brought forward section 1748 of the Code of 1906 as section 16 thereof (Hemingway's Code, section 2143). Chapter 189 of the Laws of 1918, here relied on by the appellant as having repealed the statutes hereinbefore referred to, deals principally with contracts for, and the transportation of, intoxicating liquor, but again brought forward, as section 5 thereof, section 1748 of the Code of 1906. This statute, therefore, is not in conflict with the prior statutes, but simply brings forward one of the provisions thereof. The appellant's contention, reduced to its logical conclusion, is that the legislature in one and the same statute first prohibited and then permitted the sale of intoxicating liquor, a reductio ad absurdum. The sale which the legislature here had in mind was simply the dealing with intoxicating liquor in such manner as theretofore constituted a sale thereof.

The statute under which the evidence of more than one sale was here admitted is section 1762, Code of 1906 (Hemingway's Code, section 2098), which provides that — "On the trial of all prosecutions for the violation of law by the sale or giving away of liquors, bitters, or drinks, the state shall not be confined to the proof of a single violation, but may give evidence in any one or more offenses of the same character committed anterior to the date laid in the indictment or in the affidavit, and not barred by the statute of limitations; but in such case, after conviction or acquittal on the merits, the accused shall not again be liable to prosecution for any offense of the same character committed anterior to the day laid in the indictment or in the affidavit."

The appellant's objection to this statute is that it violates sections 26, 31, and 32, of the state Constitution, which provide that (26) "in all criminal prosecutions the accused shall have a right . . . to demand the nature and cause of the accusation;" (31) "the right of trial by jury shall remain inviolate;" and (32) "the enumeration of rights in this Constitution shall not be construed to deny and impair others retained by, and inherent in, the people."

A similar statute dealing with prosecutions for gambling appeared in our Codes at least as early as the Code of 1880, as 2857 thereof, now section 1504, Code of 1906 (Hemingway's Code, section 1262). The constitutional validity of neither of these statutes seems to have been challenged though both of them, particularly the one here under consideration, have been several times under consideration by this court in cases in which convictions thereunder were affirmed.

The predecessor of section 1762, Code of 1906, was section 3, chapter 62, Laws of 1890 (section 1596, Code of 1892), which provides:

"That in any prosecution for the violation of any law by the sale of intoxicating liquors, it shall be lawful to include one or more counts in the indictment, and unless it is manifest to the court that the defendant will be prejudiced thereby on his trial, it shall not be required of the district attorney to elect on which count he will proceed, but he may proceed on both counts to trial, but in a general verdict of guilty on more than one count he shall be punished but for one offense."

This statute was not brought forward in the Code of 1906, section 1762 thereof; the one here under consideration being substituted therefor. The validity of that statute seems never to have been, and it undoubtedly could not have been, successfully questioned. This court and its predecessor, the High Court of Errors and Appeals, have repeatedly held, in passing on objections to the joinder in one indictment of several counts setting forth separate and distinct offenses, that there is no objection in point of law to such practice. In the case ofSarah v. State, 28 Miss. 267, 61 Am. Dec. 544, the court said:

"The rule is well settled that, in point of law, there is no objection to the insertion of several distinct felonies of the same degree in the same indictment, against the same offender. 1 Chitty, Cr. Law, 253; Kane v. People, 8 Wend. (N.Y.) 203;People v. Rynders, 12 Wend. (N.Y.) 425; Wash v. State, 14 Smedes M. 120. But while this is the acknowledged doctrine both in this country and England, it is held in the courts of the latter country to be irregular, in cases of felony, to charge upon the prisoner more than one distinct offense at one time in the same indictment. And if the joinder of more than one distinct felony in the same indictment be objected to before plea, the court will quash the indictment, lest it should embarrass the prisoner in his defense or prejudice him in his challenge to the jury. But this appears not to be regarded as a right, strictly speaking, of the accused, but as a matter submitted to the discretion of the court, which it might exercise as a measure of prudence for the safety of the accused."

This case was followed in Scott v. State, 31 Miss. 473,Strawhern v. State, 37 Miss. 422; George v. State,39 Miss. 570; Teat v. State, 53 Miss. 439, 24 Am. Rep. 708;Jones v. State, 67 Miss. 111, 7 So. 220; Hemingway v.State, 68 Miss. 371, 8 So. 317; Gates v. State, 71 Miss. 874, 16 So. 342; Cannon v. State, 75 Miss. 364, 22 So. 827;State v. Rees, 76 Miss. 435, 22 So. 829; Burges v. State,81 Miss. 482, 33 So. 499. Several of these cases, while recognizing the right to include in one indictment several counts setting forth separate different offenses, disapprove of the practice thereof; all hold that the quashing of the indictment or forcing the state to elect on which it would proceed is within the discretion of the trial court to be exercised when the defendant would be prejudiced by a trial on more than one of the offenses at the same time.

In the Strawhern case, the indictment set forth in different counts separate assaults committed on different persons. In the Teat case, the defendant was charged in one count with the murder of George Steen, and in another county with the murder of William Steen, and in passing thereon the High Court of Errors and Appeals said:

"It is well settled that two offenses of the same character, though committed at different times, may be joined in the same indictment. It is said to be bad practice, and the state upon motion may, in the discretion of the court, be compelled to elect upon which she will proceed.

In Hill v. State, 72 Miss. 527, 17 So. 375, in which the indictment contained two counts for separate offenses, the court after reversing the judgment of the court below for another reason, indicated its disapproval of the joinder of the two offenses in the same indictment, again characterizing it as bad practice. In none of the cases does there appear a hint of any constitutional right of a defendant which would be violated by trying him for more than the offense at the same time. The holding of these cases is in accord with the great weight of authority. Bishop, in sections 424 and 425 of volume 1 of the Fourth Edition of his Criminal Procedure, says:

"(424) Since, in the criminal law, the pendency of one accusation against a man can never be pleaded in bar or abatement of another, it follows that no piling of count in the same indictment, or incongruous or other ill joinder of counts, is strictly illegal, so as to be demurrable, or subject the judgment to be arrested, or reversed. But —

"(425) Judicial discretion, not inflexible rule, regulates this question. Whenever the court, on seasonable application, deems that the due order of its proceedings, or the interests of a party, will be prejudiced by the multiplicity or ill joinder, it will in its discretion quash a count or the whole indictment, or order separate trials on the counts, or compel the prosecutor to elect on which one he will ask for a verdict, as the exigencies of the particular case and the time and manner of making the objection render most suitable."

And again:

"(452) By the practice everywhere, distinct misdemeanors may be joined in separate counts of one indictment, to be followed by one trial for all, and by conviction for each, the same as though all were charged in separate indictments; subject to practical limitations from judicial discretion, thus distinct libels, assaults, frauds, may in different counts be charged in one indictment, and each proved at the one trial. So in liquor selling, when made by statute a misdemeanor, with a fine for each sale, several counts for distinct sales may be combined in one indictment, and the accumulated penalty imposed."

The cases hereinbefore cited recognize, and some of them expressly hold, that a general verdict on a trial on an indictment alleging the commission of several offenses in different counts applies to all of the counts; and it was said inJones v. State, 67 Miss. 111, 7 So. 220, that, when the verdict on the trial on such an indictment is guilty, sentence may be imposed on each count. When all of these decisions were rendered, the state Constitution contained provisions either identical with or similar to the ones here invoked by the appellant, and most of them were decided prior to the adoption of our present Constitution; consequently we must presume that the sections thereof here invoked were adopted in the light thereof.

Chapter 62, Laws of 1890 (section 1596, Code of 1892), and section 1762, Code of 1906 (Hemingway's Code, section 2098), each permit evidence of more than one sale to be introduced on the trial on an indictment charging the defendant with the sale of intoxicating liquor. In order for such evidence to have been introduced under the first statute, each sale sought to be proved must have been set forth in the indictment by means of separate counts; while under the second the state is relieved of the necessity of alleging the sales it intends to give in evidence by means of separate counts in the indictment; the charge in an indictment of the making of a sale of intoxicating liquor being by the statute made the equivlent of the insertion in the indictment of separate counts for each of the sales which the state intends to give in evidence. The notice to the defendant "of the nature and cause of the accusation" in each indictment is the same. It was not necessary, under chapter 62, Laws of 1890, to allege the dates on which, or the persons to whom, the several sales were made; and, on the trial, any sales made within the period of limitation, not exceeding the number set forth in the indictment, could be given in evidence. So that the only difference between a trial under the former statute and the latter statute is that, under the former, the number of sales to be introduced in evidence was restricted to the number of counts contained in the indictment, while, in a trial under the present statute, the number of such sales is restricted only by the number made within the period of limitation for prosecutions therefor.

The present statute is more favorable to a defendant than the former, for the reason that under the former he could be punished for each sale made, while under the present statute punishment for one sale only can be imposed, though he is thereafter free from prosecution for any other sale he may have made anterior to the date laid in the indictment.

We do not understand the appellant to contend that the failure of the indictment to inform the appellant of the names of the persons to whom the sales were made violates section 26 of the state Constitution. That it does not violate that section was expressly decided in Riley v. State, 43 Miss. 397, which case was approved in Surratt v. State, 45 Miss. 601, and Gamblin v. State, 45 Miss. 665, and was followed in Lea v. State,64 Miss. 201, 1 So. 51.

The cases hereinbefore cited, not only dispose of the appellant's contention that the statute here under consideration does not deprive him of his right to be advised of the nature and cause of the accusation against him, but also disposes of his contention that it deprives him of trial by a jury; and it also clearly appears therefrom that at common law there was no immunity from a trial for more than one offense at the same time which the legislature could not by a statute abridge, and consequently such immunity or right is not within the reservation of rights contemplated by section 32 of the Constitution.

The cases relied on by the appellant wherein this court has held that more than one sale could be introduced in evidence on the trial on an indictment for the sale of intoxicating liquor, were decided prior to the enactment of the statute, and are therefore not in point here.

Coming now to the assignment of error which challenges the validity of section 2, chapter 210, Laws of 1922. We do not understand the appellant's contention to be that, if that statute is void, his conviction on the merits would be thereby affected, but only the sentence imposed on the verdict. If the statute is void, it of course can have no effect on prior statutes prohibiting and punishing the selling of intoxicating liquor. But, if it is void and punishment thereunder different from that provided by former statutes was imposed on the appellant, then of course the judgment, in so far as it imposes punishment, should be reversed, and the cause remanded for sentence under the proper statute.

The ground of the objection to this statute is that it violates section 61 of the state Constitution, which provides that — "No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length."

The statute is not complete on its face, and does not purport to create and provide for the punishment of a new offense, but manifestly was intended to amend former statutes prohibiting the sale of intoxicating liquors in so far as punishment by imprisonment therefor is concerned.

The statute on which this prosecution is predicated is chapter 214, Laws of 1912 (Hemingway's Code, section 2086), which provides for punishment — "by a fine of not less than fifty dollars nor more than five hundred dollars, or to be imprisoned in the county jail not less than one week nor more than three months, or both, for the first conviction for an offense committed after the passage of this act."

Section 2, chapter 210, of the Laws of 1922, was manifestly intended to withdraw from the trial judge the discretion to impose a fine, or imprisonment, or both, and to make it mandatory on him to impose a term of imprisonment in each case of not less than ninety days. It refers to prior statutes for the fine to be imposed, and thereby does exactly that which section 61 of the Constitution was, among other things, meant to prevent. It is therefore void.

It it true that the punishment here imposed was not in excess of that which the former statute permitted, but it may be that the judge below, deeming himself bound by the new statute, either imposed a jail sentence that he would not have imposed, or fixed a longer period therefor than he would have done had he acted solely under the former statute.

This being true, we are of opinion that, in so far as it imposes sentence on the verdict, the judgment of the court below should be reversed, and the cause remanded for a new sentence, but in all other respects it should be affirmed. So ordered.

Reversed and remanded.