BUFORD v. STATE
No. 25764
Supreme Court of Mississippi
February 21, 1927
Suggestion of Error Overruled March 28, 1927
146 Miss. 66 | 111 So. 850
Ethridge and Anderson, JJ., dissenting.
(In Banc.)
BUFORD v. STATE.*
(In Banc. February 21, 1927. Suggestion of Error Overruled March 28, 1927.)
[111 So. 850. No. 25764.]
- INTOXICATING LIQUORS. Law, providing that no property rights shall exist in liquor, held not to repeal laws prohibiting sale of liquor (Laws 1918, chapter 189, section 5).
Laws 1918, chapter 189, section 5, providing that no property rights shall exist in liquors, held not to have affected the repeal of statute prohibiting the sale of intoxicating liquor, in view of legislative history (Code 1906, sections 1746 ,1748 ; Laws 1908, chapter 115; Laws 1912, chapter 214; Laws 1916, chapter 103) showing no conflict in prior statutes, one of the provisions of which is brought forward in present act. - INTOXICATING LIQUORS. Jury. Law authorizing state in liquor prosecution to give evidence of offenses committed before date alleged in indictment held constitutional (
Hemingway’s Code, section 2098 ;Const. 1890, sections 26 ,31 ,32 ).Code 1906, section 1762 (Hemingway’s Code, section 2098 ), authorizing state in liquor prosecutions to give evidence of offenses of same character committed anterior to date laid in indictment, held not in violation ofConst. 1890, sections 26 ,31 ,32 , as depriving accused of right to be advised of accusation, depriving him of jury trial, or denying or impairing rights retained by, and inherent in, the people. - INTOXICATING LIQUORS. Failure of indictment to inform defendant names of persons to whom sales of liquor were made held not in violation of Constitution (
Const. 1890, section 26 ).
Failure of an indictment, in prosecution for sale of intoxicating liquor, to inform defendant of names of persons to whom sales were made, held not in violation ofConstitution 1890, section 26 . - STATUTES. Statute referring to prior law for fine to be imposed held unconstitutional (Laws 1922, chapter 210, section 2;
Hemingway’s Code, section 2086 ;Constitution 1890, section 61 ).
Laws 1922, chapter 210, section 2, making it mandatory on trial judge to impose ninety-days imprisonment on conviction forselling intoxicating liquor in violation of Laws 1912, chapter 214 ( Hemingway’s Code, section 2086 ), held in violation ofConstitution 1890, section 61 , in that it refers to prior statute for fine to be imposed. - Criminal law. Judgment imposing sentence on verdict will be reversed, and cause remanded for new sentence, where statute authorizing sentence is held void (Laws 1922, chapter 210, section 2).
Since Laws of 1922, chapter 210, section 2, making it mandatory that trial judge impose ninety-day imprisonment on conviction for sale of liquor, is void, judgment of lower court on conviction for sale of liquor will be reversed, in so far as it imposes sentence on the verdict and cause remanded for a new sentence.
ETHRIDGE and ANDERSON, JJ., dissenting.
*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.
Appeal from circuit court of Leflore county.
HON. S. F. DAVIS, Judge.
Mike Buford was convicted for selling intoxicating liquor, and he appeals. Reversed, and remanded for a new sentence, and otherwise affirmed.
Kimbrough, Tyson & Kimbrough, for appellant.
I. Consider first the question of admitting evidence of more than one sale of intoxicating liquor in the trial of a cause. See
To state not only the gross injustice, but, as we see it, the utter flouting of
In the case of murder the name of the person alleged to have been killed must be given; in the case of larceny, grand or petit, a description of the property, its value, and its ownership must be laid in the indictment; in burglary, or in burglary and larceny, the same is true; in bigamy, in rape, in false pretenses, in being drunk or profane swearing in a public place—in, we might say, all cases known to the law the nature of the cause of accusation must be set forth in the indictment.
By what process of reasoning can the legislature be given authority to charge a defendant with the commission of one offense and without notice or warning to him, offer proof of any number of entirely separate and distinct offenses? It cannot be done under the common law. We can find no warrant for it under our constitution. On the contrary,
Suppose two witnesses testified: one that he bought intoxicating liquor from defendant in a certain quantity, at a certain time, at a certain place, and narrates the physical surroundings and the conversation that took place resulting in said purchase; the other that he bought a different quantity, for a different price, of a different kind, at a different place and under totally different circumstances. The evidence of both witnesses is allowed to go to the jury. They come in with a verdict of guilty as charged. Have the several minds of the jurors met on either offense? Suppose six jurors totally disbelieve the testimony of the first witness, but were convinced
Even when the state confines its proof to a single sale of intoxicating liquor, the defendant, under the rules as they now exist, may be wholly in the dark until he has entered upon the trial. He can prepare no defense, he does not know the person or his name, to whom he is charged with having made the sale. He does not know when it was made, who was present, what price is claimed to have been paid, how the price was paid, by whom, when, where, or in whose presence it was paid. He does not know what kind or character of intoxicating liquor he is charged with having sold, whether whiskey, wine, gin, ale or whatnot. What is his consternation and helplessness when two, three or a dozen witnesses, all perhaps unknown to him, are allowed to testify to the details of as many separate, independent, distinct and disconnected transactions? We do not believe the statute can stand the test. For light on this subject, see: King v. State, 66 Miss. 502, 6 So. 188; 1 Bish. Cr. Pro., paragraphs 1124-29; Gassheimer v. State, 52 Ala. 313; State v. Crimmins, 31 Kan. 376; Lebovitz v. State, 113 Ind. 26, and authorities there cited; Bailey v. State, 67 Miss. 333, 6 So. 188; Naul v. McComb City, 70 Miss. 699, 12 So. 903; Ware v. State, 71 Miss. 204, 13 So. 936; Kettrell v. State, 89 Miss. 666, 42 So. 609.
As to the proposition that the foregoing cases all arose before the operation of the statute under consideration, our answer is that if it was unlawful then to offer evidence of more than one sale, it was unlawful because it violated, especially,
The question of the constitutionality of
Whether this statute is a rule of evidence or “far more than a rule of evidence,” we insist that it is violative of appellant’s rights under
II. We have no valid law against the sale of intoxicating liquor. Historically, we know that until modern times it was never dreamed by the people that a time would come when there would be no property rights in intoxicating liquors. Until recently the right of property in such liquors was uniformly and universally recognized.
The first statute passed in the state, infringing upon, or qualifying, this unlimited and unrestrained right was
A hasty review of our liquor legislation during the past thirty years may not be amiss. See section 1572, 1574, Code of 1892, the former section appearing as In 1914 the legislature enacted chapter 127, Laws of 1914, generally spoken of as the four-quart law. In 1916 we were given the one-quart law—see chapter 103, Laws of 1916. In 1918 our present “bone dry” law came into being as chapter 189, Laws of 1918, and embodied in chapter 88, Hemingway’s Supplement. Chapter 189, Laws of 1918, does not, in its title at least, purport to amend or repeal any of the laws of the state, but in the body of the act section 21, chapter 103, Laws of 1916, is specifically repealed. The act, however, undoubtedly does in fact repeal previously existing law. Undoubtedly section 5 of the act (chapter 189, Laws of 1918) re- III. Chapter 210, Acts of 1922, sections 2 and 3 necessarily, by implication, amend Chapter 210, Laws of 1922, does not create a separate and distinct offense, complete in itself, and prescribe the penalty for its violation. W. A. Scott, Jr., Special Agent, for the state. I. Prosecutions under II. It is still unlawful in Mississippi to sell intoxicating liquors. The legislature has not abolished all property rights in all intoxicating liquors. Alcohol owned by a druggist and used exclusively in his business is still property within the strictest legal interpretation of the word and it is subject to all the legal rights and liabilities of property. Intoxicating liquor becomes a contraband only when kept for a purpose contrary to law or when illegally sold. The minute, however, the property is used for an unlawful purpose the title vanishes. We cite Smith v. State of Indiana, 118 N. E. 954, L. R. A. 1918D 688, to the effect that property used for gambling purposes contrary to the statute is a subject of larceny. See, also, Arner v. State, 197 Pac. 710. III. Chapter 210, Laws of 1922, does not violate Argued orally by W. A. Scott, Jr., Special Agent, for the state. 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. Chapter 115 of the Laws of 1908 amended The statute under which the evidence of more than one sale was here admitted is The appellant’s objection to this statute is that it violates sections 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 The predecessor of “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, “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 sev- 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 count 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 one 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 in Jones 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. 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. 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 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 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 ( 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 It is 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 Reversed and remanded. ETHRIDGE, J. (dissenting.) I am unable to agree with the majority opinion of the court that The indictment in the present case names a specific date upon which the sale was made, and would be a good indictment for one sale on that day; but, the indictment not having named the person to whom the sale was made, the time becomes of the essence of the evidence charged, and the state would be confined to the date named in the indictment. It of course could be otherwise if the person to whom the sale was made was alleged, even though no date was fixed in the indictment. But I think it would not be permissible under the Constitution to charge a single offense in the indictment and allow the state to run through the entire period of two years anterior to the date laid in the indictment, introducing a number of separate offenses and permitting a conviction without electing which sale the state would rely upon. It is true that at common law a number of counts charging different offenses could be laid in one indictment, but in such case each count would have to describe with particularity the offense relied on, and this charge would have to be specific and certain enough to inform the accused of the nature and cause of the accusation. It was not permissible at common law to charge a number of offenses in the same count; and it was not permissible at common law to introduce other offenses than those charged. In Ex Parte Grossman, 267 U. S. 87, 45 S. Ct. 332, 69 L. Ed. 527, 38 A. L. R. 131, the rule with reference to construing the Constitution in the light of the common law was clearly and felicitously stated by Chief Justice TAFT, speaking for the court: “The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen states, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.” The same rule was recognized in the case of Byrd v. State, 1 How. 163, where the court, at page 177, speaking upon this subject, said: “As the law stood at the time of the formation of the federal government, both the common and statute law of England required the possession of a freehold as necessary to qualify a juror, and the right of trial by jury, being of the highest importance to the citizen, and essential to liberty, was not left to the uncertain fate of legislation, but was secured by the Constitution of this and all the other states as sacred and inviolable. The question naturally arises, how was it adopted by the Con- stitution? That instrument is silent as to the number and qualifications of jurors; we must therefore call in to our aid the common law for the purpose of ascertaining what was meant by the term jury. It is a rule that when a statute or the Constitution contains terms used in the common law, without defining particularly what is meant, then the rules of the common law must be applied in the explanation. The framers of the Constitution must have meant, therefore, to secure the right of trial by jury as it existed in England, either by the statute, or common law, and the Constitution, in the absence of all subsequent legislation, would have secured to the citizen this mode of trial and all its incidents not incompatible with the republican form of our government. The legislature cannot abolish or change substantially the panel or jury, but it may, it is presumed, prescribe the qualifications of the individuals composing it.” The same rule, of course, would apply to indictments, and afford the protection to the citizen that was given by the particularity required in indictments at the common law. In Smith’s Administrator v. Smith, 1 How. 102, in discussing jury trial, the court, speaking through Chief Justice SHARKEY, said: “It seems to me that this provision in the Constitution not only extends to issues of facts made up, but that it must necessarily secure the right to make up an issue; that, although an issue is in most cases a prerequisite to a trial by jury, yet it does not follow that by giving a summary remedy a party can be deprived of a constitutional right. “If the legislature can say in any given case, that a party may recover by motion to the court, without the privilege of an issue, they may, as to all matters of contract at least, say the same thing, and thus destroy the right of trial by jury. “The right of trial by jury, as it exists here, is derived from the common law, and it is so highly valuable to the In Murphy v. State, 24 Miss. 590, this court, speaking through Mr. Justice YERGER, in discussing the provision for indictment in the Constitution, said: “The constitutional provision, that every man charged with a crime has a right ‘to demand the nature and cause of the accusation against him,’ was intended to secure to the accused such a specific designation of the offense laid to his charge, as would enable him to make every preparation for his trial necessary to his full and complete defense. We therefore think that under it the accused is entitled to demand ‘such a certain description of the offense charged, and statement of the facts by which it is constituted, as will fully identify the accusation, lest the grand jury should find a bill for one offense, and the defendant be put upon his trial for another, without any authority; and also that the defendant may know what crime he is called upon to answer, in order that he may be prepared with his evidence, and that his conviction or acquittal may insure his subsequent protection, should he again be questioned on the same ground; and that he may be enabled to plead a previous conviction or acquittal of the same offense in bar of any subsequent proceedings against him.’ “The indictment ought, in our opinion, to describe and identify the offense with such a degree of certainty that the accused and the court may know, that the offense for which he is put upon his trial, is the same offense with that for which he stands indicted, in order that he may plead in bar a previous conviction or acquittal. An indictment which does not contain this degree of certainty does not communicate to the accused ‘the nature and cause of the accusation’ against him, in the In the case of Riley v. State, 43 Miss. 397, relied upon principally by the majority opinion, the indictment charged specifically the date upon which the offense was committed, and further charged that the defendant within the jurisdiction of the court —“being then and there a druggist, apothecary, or physician, and having a license as required by law to retail vinous and spirituous liquors in quantities less than one gallon for medicinal, sacramental and culinary purposes, did then and there sell spirituous liquors in a quantity less than one gallon, otherwise than in good faith for medicinal, sacramental, or culinary purposes, contrary to the form of the statute,” etc. The fact that the date was alleged was the very foundation upon which the decision was rendered, dispensing with the necessity of naming the person to whom the sale was made. In that opinion the court discusses the things the indictment was intended to secure to the accused, and quotes from the case of Shabe Williams v. State, 42 Miss. 328, five propositions as follows: “(1) In order to identify the charge, lest the grand jury should find a bill for one offense, and the defendant be put on trial for another, without any authority. “(2) That the defendant’s conviction or acquittal may inure to his subsequent protection, should he be again questioned on the same grounds; the offense, therefore, should be defined by such circumstances as will, in such case, enable him to plead a previous conviction or acquittal of the same offense. (3) To warrant the court in granting or refusing any particular right or indulgence which the defendant might claim as incident to the nature of the sale. “(4) To enable the defendant to prepare for his defense in the particular case; or, if he prefer it, to submit to the court by demurrer, whether the facts alleged “(5) Finally, to enable the court, looking at the record, after conviction, to decide whether the facts charged are sufficient to support a conviction of the particular crime, and to warrant their judgment.” In the Shabe Williams case, the indictment was in the following words: “The grand jurors elected, etc., present that Shabe Williams, on the 19th of March, 1866, in the county of Davis aforesaid, in and upon one Dick Smith, willfully, feloniously, and of malice aforethought an assault did make, and him the said Dick Smith did strike, cut, and wound, with intent of him, Shabe Williams, willfully, feloniously, and of malice aforethought, to kill and murder the said Dick Smith, against the peace and dignity of the state of Mississippi.” After setting out the essentials of the indictment, as above stated, the court said: “It is a general rule, that all indictments upon statutes, especially the most penal, must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it; they must pursue the precise and technical language employed in the statute in the definition or description of the offense. Starkie on Crim. Pleading, 249; 1 Chitty’s Crim. Law, 280-283; Ainsworth v. State, 5 How. 242; Anthony v. State, 13 Smedes & M. 263; Ike v. State, 23 Miss. 525; Riggs v. State, 26 Miss. 51”—and reversed the judgment of conviction. In George’s Digest of Mississippi Reports, at page 813, section 289, under the title “Criminal Law,” is set forth the essentials of an indictment as existed in the early days of the state’s history. A perusal of these cases shows that indictments were held to strictness in describing the offense, giving the necessary information as to the facts upon which the indictment was predicated, and In Williams’ case, digested at this point, it is said: “The legislature passed an act prohibiting trading with slaves without the consent of the master, owner, etc., and provided that, in indictments under the law, it should not be necessary to specify the commodity sold to, or purchased from the slave, nor the name of the slave, nor the name of his owner.” The court held: “That the act was unconstitutional, as it dispensed with that designation of the offense charged, necessary to enable the accused to make his defense.” That “such an indictment should either specify the name of the owner, or of the commodity. But, where the commodity alone is mentioned in the indictment, the day the crime is alleged to have been committed becomes a necessary descriptive part of the offense, and must be proved as laid.” In Riggs’ case, it was said: “The facts and circumstances which constitute the offense as charged must be stated with precision and certainty; and every material circumstance in regard to time and place must be averred with that degree of certainty, which is sufficient to exclude every other intendment.” In Norris’ case, 33 Miss. 373, it was held that—“The Constitution secures the accused the right to have the facts which constitute the alleged crime stated in the indictment with sufficient certainty to enable him to know with what offense he is charged, and to prepare his defense, both by plea of not guilty, and of former acquittal or conviction.” In Newcomb’s case, 37 Miss. 383, it was held that—“ ‘ The constitutional right of the accused, to demand the nature and cause of the accusation against him,’ cannot be waived or surrendered, and therefore, if the indict- See, also, Lewis v. State, 49 Miss. 354. The federal decisions construing the Constitution of the United States, are to the same effect. In Watson on the Constitution, in discussing the provision of the “This is a most humane and just provision, and is one of the most valuable which the Constitution affords to any accused person. It would be difficult indeed for one who has been indicted to prepare his defense properly unless he should be informed of the nature of the charge against him. A mere general statement consisting of vague and indefinite expressions will not do. The charges must be specific and accurate.” He quotes from United States v. Mills, 7 Pet. 138, 8 L. Ed. 636, as follows: “The general rule is that in indictments for misdemeanors created by statute, it is sufficient to charge the offense in the words of the statute. There is not that technical nicety required as to form, which seems to have been adopted and sanctioned by long practice, in cases of felony, and with respect to some crimes, where particular words must be used, and no other words, however synonymous they may seem, can be substituted. But in all cases, the offense must be set forth with clearness, and all necessary certainty, to apprise the accused of the crime of which he stands charged.” He quotes from United States v. Cook, 17 Wall. 168, 21 L. Ed. 538, as follows: “Offenses created by statute, as well as offenses at common law, must be accurately and clearly described in an indictment, and if they cannot be, in any case, without an allegation that the accused is not within an In United States v. Cruikshank, 92 U. S. 542 (23 L. Ed. 588), the supreme court of the United States held: “In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right ‘to be informed of the nature and cause of the accusation.’ . . . It is an elementary principle of criminal pleading, that where the definition of an offense, whether it be at common law or by statute, ‘includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species; it must descend to particulars.’ . . . The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decided whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place and circumstances.” The indictments involved in that case were indictments against Southern citizens for conspiring to deny colored See, also, U. S. v. Simmons, 96 U. S. 360, 24 L. Ed. 819; U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135; U. S. v. Britton, 107 U. S. 655, 2 S. Ct. 512, 27 L. Ed. 520; 3 U. S. Dig., section 40, p. 3332 et seq.; Cochran v. U. S., 157 U. S. 286, 15 S. Ct. 628, 39 L. Ed. 704; U. S. v. Behrman, 258 U. S. 280, 42 S. Ct. 303, 66 L. Ed. 619. In Breeland v. State, 79 Miss. 327, 31 So. 104, it was held that—“The act of 1898 (Laws 1898, p. 87), making it a felony for a person, by threats of injury, to intimidate another into changing or abandoning his home or employment, creates two distinct offenses, and it is not permissible to charge them both in the same count of an indictment.” It was also held in that case that—“An indictment under the statute for intimidating another into a change or abandonment of his home must aver in direct and positive terms that the injured party had a home; and if the indictment be for intimidating another into a change or abandonment of his employment, it must aver in the same manner that the injured party had an employment.” Also that—“It is necessary under the statute, if the charge be for intimidating another into a change or abandonment of his employment, that the indictment should define, in general terms at least, the nature of the business in which the person intimidated was employed, and to show that the employer was a natural person, copartnership or corporation, as the case may be.” In Telheard v. City of Bay St. Louis, 87 Miss. 580, 40 So. 326, it was held that section 26 of the Constitution of 1890 applies to all prosecutions before all inferior courts, and that—“An affidavit which charges that the accused on a certain date, within the limits of the city, violated an ordinance of the municipality, designating In State v. Glennen, 93 Miss. 836, 47 So. 550, appellants were indicted under section 3430, Code of 1906, providing that municipal authorities shall annually publish a statement of the taxes collected and expenditures made, and that the mayor and aldermen shall be suspended from office, if there has been, unauthorized by a vote of the electors, an increase of taxation over the year next preceding or the debts of the municipality have been increased by contract or ordinance participated in or voted for by them. The court held that “an indictment is demurrable if it fail to charge the time when or the place where the offense was committed.” These cases, it seems to me, clearly demonstrate that there can be no such thing as a blanket indictment, covering a period of two years, and charging by implication that an offense was committed against the law by a sale made to every person in the world within the period of time and within the limits of the county. If section 1762 is to be upheld as a valid statute, it must be done upon the predicate that the indictment charges such a multitude of offenses. It seems to me that this is so absurd a view that its fallacy would be perceived at once. If an indictment of this kind could be sustained as to intoxicating liquors, it can be sustained as to any other offense that the legislature may place in the same category. It could just as well be held that an indictment charges a person with murder on a named date, without specifying who was murdered, and that he could be prosecuted for any murder committed within the county within the period of limitation which, in the present charge, is two years; there being no limit for the prosecution for murder. If the legislature can authorize an indictment to embrace a charge for every day and every minute of the day for a period of two years, it would have the same Section 26 becomes meaningless jargon with this interpretation put upon it. In the language of the negro dialectician, “It says words but don’t mean nothing.” Such a construction of the statute not only violates section 26 with reference to indictments, but it denies the defendant “due process of law.” Due process of law means, the law of the land administered according to the In criminal cases there must be either an indictment or an information specifying what the accused is charged with, with sufficient information to enable him to prepare to meet the charge by testimony. It is true the statute undertakes to give him an acquittal of all other offenses except the one he is convicted of, but the trouble with that is that a man has a right not to be convicted at all, and a right to a hearing on the particular charge for which he is to be tried. No such proceeding was known at the common law. A man could only be tried for the offense of which he was charged, and the charge had to be limited to that particular offense. It is true that the facts constituting the crime might, according to circumstances and intent, vary the crime, and in such case the indictment could charge in different counts the various possible crimes that might arise out of the particular facts of the particular transaction, but they could not prefer an indictment charging murder in one count, theft in another, arson in another, burglary in another, and robbery in another. It must be such offenses as might grow out of a given state of facts according to the intention and accompanying circumstances. To charge a man with all the crimes in the calendar in one count certainly would not constitute due process of law, and I have no doubt but that the statute violates both the due process clause of the state Constitution and the Again, a trial under such circumstances violates the right to trial by jury. Trial by jury necessarily involves the common concurrence of the mind of each of the jurors in a common conclusion on the same facts. It would be a denial of trial by jury to require a jury of twelve men—as it does in criminal cases—to concur in a conviction, where one juror was of the opinion that the accused was guilty of one of the crimes testified to against him, and another juror to reach his conclusion on a dif- On the trial more than one offense was introduced in evidence, and the court at page 506 of the Mississippi Report (6 So. 189) said: “After the state had proved distinctly one unlawful sale, it was error to admit testimony of other and different sales. The general rule is, that the issue on a criminal trial, shall be single, and that the testimony must be confined to the issue, and that on the trial of a person for one offense, the prosecution cannot aid the proof against him, by showing that he committed other offenses. Whart Cr. Ev., section 104; 1 Bish. Cr. Pro., section 1120 et seq. The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice and oppression in criminal prosecutions. Such evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and while the accused may be able to met a specific charge, he cannot be prepared to defend against all other charges that may be brought against him. “ ‘To permit such evidence,’ says Bishop, ‘would be to put a man’s whole life in issue on a charge of a single wrongful act, and crush him by irrelevant matter, which he could not be prepared to meet.’ I Bish. Cr. Pro., section 1124. “There are exceptions to the rule which has been stated—such as where the offense charged and that offered to be proved are so connected as to constitute but “Where there are several offenses, for either one of which the accused may be convicted under the indictment, the prosecution should elect the offense which it will pursue, and the testimony should be confined to that offense, unless the case is within some of the exceptions, which render the proof of other distinct offenses admissible. After one offense is proved, the prosecution should not have liberty of the wind, to blow where it listeth. The authorities are not harmonious as to when the prosecution will be required to make election in such case, or as to how long a prosecuting officer will be permitted ‘to fish with his witnesses for evidence’ before selecting the offense for which he will ask conviction; but it is believed that justice is best promoted by allowing the testimony for the prosecution to go far enough to identify and show one distinct offense, and when this is done, to restrict the evidence to that offense. 1 Bish. Cr. Pro., section 462; Whart. Cr. Ev., 104. “The suggestion that appellant’s conviction of either of the sales given in evidence in this case would operate as a bar against his being subsequently prosecuted for the others, does not meet the objection made by him. He is not now looking out for barriers against other prosecutions, but is complaining of injustice being done in his present conviction. He claims that he ought not have been convicted at all, and if his conviction has “And if instead of testimony being produced to establish two distinct offenses, it shows twelve, it is possible that one juror might be convinced that the defendant was guilty of some particular one of the offenses, and of none other, and thus each juror might be convinced that he was guilty of some particular one of the offenses, and all agree to a conviction, and yet no two jurors be agreed upon any one offense.” It seems to me that it is utterly impossible to tolerate a situation of this kind, in a court of justice in a civilized land. This statute is not only not constitutional, but it is unjust and tyrannical. Under it the innocent may be borne down, crushed by an avalanche of testimony of separate offenses, while the guilty can, by being prosecuted under this statute, escape just punishment for many offenses, and for a single punishment escape justice for the statutory period. I regret the necessity of dissenting in a case of this kind, because I have no sympathy whatever for those Crime has existed throughout the known history of the world; it has flourished even more in despotic countries than it has in other countries. The securities offered by the Constitution have been proven by ages of experience to be necessary for the safety and security of the innocent. Reluctant as I am to dissent in a case involving such laws, I am not willing to sacrifice constitutional principles to appease the passions of the hour. Protection will be swept away from every citizen because the evil example of section 1762, Code of 1906 (section 2098, Hemingway’s Code), will be followed in other cases, and ultimately the right to be informed of the nature and cause of the accusation will be swept from the field, and tyranny will become reinstated, and will hold its pernicious and destructive sway in the high places of the land. ANDERSON, J. On the former consideration and decision of this case by this court, it was with great doubt and reluctance that I HOLDEN, J. (specially concurring). When the decision was rendered in this case, I announced orally from the bench that I concurred in the majority opinion, because the question involved as to the constitutionality of the statute had already been decided by this court several times; and that while I thought the prior holding of this court on this question was wrong, and that as an original proposition I would have maintained that the statute was unconstitutional for the reasons given in the dissenting opinion herein of Judge ETHRIDGE, that, still, I believed it to be the duty of a judge of this court to follow the rule of stare decisis, and I, for this reason, therefore joined in the main opinion. I orally expressed the view from the bench that the dissenting opinion was the correct one, but that my respect for the prior decisions of this court impelled me to join with the majority. I now put these thoughts in writing so that the written record will reflect my views and satisfy my conscience in the premises.
ON SUGGESTION OF ERROR.