Triplett v. State

101 So. 501, 136 Miss. 320, 1924 Miss. LEXIS 146

Opinion

Sykes, P. J.,

delivered the opinion of the court.

An affidavit was made against the appellant in a justice of the peace court for transporting intoxicating liquors. He was tried and convicted upon this charge, and appealed to the circuit court. In the circuit court he filed a plea of immunity, alleging; in effect that after he had appealed his case to the circuit court, and while it was pending in that court, he was subpoenaed and testified before two grand juries of the circuit court about all of the facts and circumstances relating- to the charge against him then pending on appeal, and for that reason he claimed immunity from prosecution under section 2106, Hemingway’s Code (section 1792, Code of 1906). The state demurred to this plea on the ground that the prosecution against .appellant was not begun by an indictment, but by an affidavit before he testified.

The court erroneously sustained the demurrer to this indictment. Section 2106, Hemingway’s Code, provides that:

“No person shall be prosecuted ... on account of any transaction . . . concerning which he may testify . . . before the grand jury, or any court. ’ ’ It makes no difference whether the prosecution against him is begun by indictment or by affidavit; if he testify before the grand jury about this particular matter, he is to be granted immunity by virtue of this statute. Lucas v. State, 130 Miss. 8, 93 So. 437; Hosey v. State (Miss.), 100 So. 577; Ryan v. State, 101 So. 381, decided by this court October 6, 1924. .

The demurrer should have been overruled. It is unnecessary to consider any other alleged error. For the error in sustaining the demurrer, the judgment of the lower court is reversed, and tlie cause remanded.

Reversed and remanded.