Brown v. State

81 Miss. 137 | Miss. | 1902

Terrain -I.,

delivered the opinion of tbe court.

Tbe appellant was convicted in tbe circuit court of resisting an. officer in arresting him while drunk in a public place in the presence of two or more persons. He was drunk in the Thorn Building, a sample room of Leatherwood, situated upon a street of the town of Iuka, and which was entered by glass doors which permitted a look into the interior of the building from the street. Brown was in this building, and was acting to the annoyance of the owner, who, in consequence of his misconduct, sent for the town marshal, Schruggs, who found the appellant in the sample room, which was closed, and who opened and entered the sample room and arrested Brown, who was armed and drunk therein, and carried him out of the sample room upon the streets of Iuka, where the resistance was made of which he was convicted. In the justice’s court, Brown was tried upon a charge of resisting Officer Schruggs, but the charge there did not specify his being drunk in a public place in the presence of two or more persons. This part of the charge was first made in the circuit court. It is objected (1) that the amendment of the affidavit was unlawful; (2) that Brown was guilty of no crime, and should have been discharged.

1. The charge against Brown, as tried before the magistrate, was defective; but by the express language of § 1438, code 1892, it was amendable in the circuit court. Coulter v. State, 75 Miss., 356; 22 So., 872.

2. It is said that Brown should not have been convicted, because, being in the Thorn Building, he was in a private place, and was brought against his will by Officer Schruggs upon the streets'of Iuka, and that he ought not to suffer by being convicted of being drunk upon the streets in the presence of two or more persons, when he was not there of his own accord. Ordinarily, that would be a good defense, but it cannot avail the appellant under the circumstances of this case. It was in-consequence of his civil trespass and wrong while in the Thorn Building that a necessity arose of removing him from that building, and whatever was done of necessity by the owner of the Thorn Building, or by others at his direction, was as if voluntarily done by Brown; and his being drunk in a public place in the presence of two or more persons, arising from his own misconduct, was as much a crime in him as if he had gone there of his own accord. It was in consequence of his own wrong that he was necessarily carried upon the streets of Iuka, and he cannot plead the necessary acts of those lawfully carrying him there in justification of his further wrong. "Frustra legis auxilium quaerit qui in leges commitbib.”

Affirmed.