Dawsey v. State

100 So. 526, 136 Miss. 18, 1924 Miss. LEXIS 105

Opinion

Sykes, P. J.,

delivered the opinion of the court.

From a conviction for having in his possession a whisky still, and a judgment of the court sentencing appellant-to serve a term of three years in the penitentiary, this appeal is prosecuted.

The only question necessary to be considered by us is whether or not the defendant is charged with any crime or offense in the indictment. • Otaitting the formal parts, the indictment reads that <A. P. Dawsey and 0. W. Dawsey “did willfully and unlawfully and feloniously have in their possession a whisky still, against the peace and dignity of the state of Mississippi.” This indictment was attempted to be drawn under chapter 211, Laws of 1922. This court, in the case of State v. Speaks, 132 Miss. 159, 96 So. 176, held that it was necessary to negative in the indictment the exceptions contained in this act by proper averment; otherwise, that no offense is charged.

The indictment in the Speaks case averred that the defendant “did then and there willfully and feloniously own, control, and knowingly have in his possession the integral parts of a still.” The present indictment contains the additional- word “unlawfully” and the word “whisky.” The use of these two words in the present indictment does not negative the exceptions stated in the act, and it follows, under the authority of the Speaks case, this indictment charges no offense. This is not a formal defect in an indictment, which is cured after verdict.

-The judgment of the lower court is reversed, and the appellant will be held to await the action of the grand jury.

Reversed and remanded