83 Miss. 378 | Miss. | 1903
delivered the opinion of the court.
We think it clear that there was a motion made to compel the district attorney to elect as to which offenses and against what parties he would proceed. The failure of the court to do this is also made one of the grounds of the motion for a new trial. It is also clear that some of the defendants offered to file proper pleas of former conviction. This the court refused to allow to be done. It is true that this action of the court is not made the ground of the motion for a new trial, but, as the cause must be reversed, -it is proper to say that the court ought to have allowed the pleas to have been filed.
The instruction marked 4 1-2 for the defendants is as follows: “The court charges the jury that in determining the interest a witness has in the case they are at liberty to consider the fact, if the proof shows it, that such witness is under indictment for gambling, and that, if he testifies in behalf of the state, he is thereby discharged from liability to fine or punishment on account of such violation of the law. The jury has the right to
The testimony shows that some of these witnesses were code-fendants in this same indictment, and that they testified in good faith for the state in reference to the very offenses embraced in this indictment. There are two conditions of immunity provided by said section: First, that such witnesses must have been summoned by the state, and must have given evidence without procurement or contrivance on their part and in good faith; second, their exemption is exemption from prosecution for the very offense in relation to which they shall have so testified. But this immunity is a matter between them and the state. It is not necessary that the charge for the other defendants shall set out the conditions of this immunity. It is enough for the charge in this respect to state that they had obtained such immunity, and this the charge does.
But there is a more serious error still to be noted. Section 1431 of the code of 1892 provides: “On the trial of all indictments for gambling or gaming, the state shall not be confined in the proof to a single violation, but under the indictment charging a single offense may give in evidence any one or more offenses of the same character committed anterior to the day 'laid in the indictment and not barred by the statute of limitations; but in such case, after conviction or acquittal on the merits, the accused shall not be again liable to prosecution for any offense of the same
We will construe § 1431, Code 1892, with the greatest liberality permissible and consistent with the defendants’ constitutional right above indicated. But to sustain this indictment would not only abolish this right, but introduce a system of criminal pleading wholly at war with clearness, order, and justice. This indictment upon the return of the cause into the circuit court should be dismissed, and the defendants held to answer proper indictments.
Reversed and remanded.