Clingan v. State

100 So. 185, 135 Miss. 621, 1924 Miss. LEXIS 56

• Court: Mississippi Supreme Court
• Decided: May 19, 1924
• Docket: No. 24083
• Status: Published

Opinion

Anderson, J.,

delivered the opinion of the court.

Appellant, Clovis Glingan, was tried and convicted before a justice of the peace of Tishomingo county, of the charge of having in his possession intoxicating liquors, from which judgment he appealed to the circuit court of that county, where he was again tried and convicted and sentenced to pay a fine of one hundred and fifty dollars and sixty days’ imprisonment, from which judgment he prosecutes this appeal.

The only assignment of error necessary to notice is that the affidavit charging appellant with the crime of which he was convicted fails to conclude, as required by section 169 of .the Constitution, “against the peace and dignity of the state. ’ ’

The assistant attorney-general concedes, in his brief for the state, that unless Love v. State (Miss.), 8 So. 465, State v. Morgan, 79 Miss. 659, 31 So. 338, and Miller v. State, 81 Miss. 162, 32 So. 951, are overruled the affidavit ib void and this case should be reversed.

In the Love case it was held that where an indictment, information, or affidavit charging crime failed to conclude in accordance with this constitutional requirement it was fatally defective, even on motion in arrest of judgment. In discussing this question the court in that case, among other things, said:

“We must believe that the provision we are considering means that all indictments and informations, and affidavits upon which criminal prosecutions are based, must conclude ‘against the peace and dignity of the state of Mississippi. ’ It is true, even then, the provision appears to us to be idle and meaningless, but we find it in the fundamental law, and we cannot disregard it. The affidavit in the case at bar wholly neglects and contemns this requirement, and is fatally defective.”

We heartily agree with what the court said in that case in criticism of this constitutional requirement. But we cannot apply the doctrine of harmless error to the extent of overturning the Constitution.

The same question is involved in the case of Hose Orick handed down with the present case and is disposed of in like manner.

jReversed and remanded.

Headnote 1. Indictment and Information, 31 C. J., section 103.