52 So. 631 | Miss. | 1910
Lead Opinion
delivered the opinion of the court.
Appellant appeals to this court from a conviction in the court below under an affidavit charging that he (appellant) did in Alcorn county, Miss., in the city of Corinth, and within five miles of the courthouse of Alcorn county, sell intoxicating liquors in violation of the act of the legislature approved February 12, 1884 (Laws 1884, ch. 182). This statute made it “unlawful for any. person to make, sell, or give away in said city of Corinth, or within five miles of the court house of said county of Alcorn, any spirituous, vinous, malt, or intoxicating liquors of any kind, or mixture thereof,” and provides a punishment therefor different from that imposed by the general prohibition law enacted by the legislature of 1908 (Laws 1908, ch. 113). This affidavit does not charge, and was not intended to charge, a violation of the general law,, but charged, and was intended to charge, only a violation of the act of 1884. After .a verdict, appellant filed a motion in arrest of judgment on the ground that the affidavit charged him with the commission of no offense, in that it charged him with violating a statute which had been repealed. This motion was-overruled, and sentence imposed.
When the act of 1884, a local act dealing, only with a portion •of Alcorn county, was enacted, there was no general law in our statute books prohibiting the sale of intoxicating liquor. This act was one of the many local acts passed at various times pro
Omitting any discussion of that portion thereof dealing with the giving away of intoxicating liquors, because the same is not' here involved, the act of 1884 conflicts with the acts of 1908 in at least three particulars, in its provisions relative to the sale-of liquor. It prohibits altogether the sale of alcohol by. drug'gists and the sale of wine for sacramental purposes, while the-latter permits both under certain restrictions, and the punishment provided by it is materially different, not in kind,, but in degree, from the punishment provided by the latter. It follows, therefore, that the act of 1884, -in so far as it deals with the sale of intoxicating liquor, was repealed by the acts' of 1908.
Since the affidavit charged appellant with violating a statute which had been repealed, it charged him with the commission of no offense, and the motion in arrest of judgment should have been sustained.
Reversed and remanded.
Dissenting Opinion
delivered the following dissenting opinion.
I do not think the conclusions reached by the court are correct in any view. If the act of 1884 is not repealed, the affidavit is in "the very language of that act; if the act of 1884 is repealed, which I deny, the charge in the affidavit is substantially correct, and no demurrer was filed thereto before the jury was impaneled, as is required by section 1426, Code of 1906. The affidavit charges “that James Hughes, on the 16th day of December, 1909, did, in Alcorn county, Mississippi, and in the city of Corinth, and within five miles of the courthouse of Al-corn county, sell intoxicating liquors in violation of the acts of the legislature approved Eebruary 12, 1884, and against the peace and dignity of the state of Mississippi.”
This case was tried before the mayor of Corinth, acting as ex officio justice of the peace. There was a conviction, and an appeal to the circuit court of Alcom county. On the trial in the circuit court, no objection was raised to the sufficiency of the affidavit; but appellant entered a plea of not guilty, and the case proceeded to trial on its merits, resulting in another conviction. After conviction in circuit court, and before sentence,
By chapter 115, § 1, of the Laws of 1908, amending section 1746, it is now unlawful for any person to sell, or barter, or give away, for the purpose of inducing trade, any intoxicating liquor anywhere in the state. The essential chai'ge made in the affidavit is the sale of intoxicating liquor in the city of Oorinth, in Alcorn county, in the state of Mississippi, and if such sale was in fact made at that place the general law of the state was violated, whether the sale was made “within five miles of the courthouse of Alcorn county,” or not, and whether such sale violated the act of February 12, 1884, or not. ' At the date of the alleged sale there was not any place in the state’s domain where the thing that the affidavit charges was done might be lawfully done. It was linnecessary, therefore, to put into the affidavit either that the unlawful sale was within five miles of the courthouse, or that it was in violation of the act of 1884, since by the general law of the land the sale of intoxicating liquors was everywhere unlawful. These allegations as to what law is violated, and as to its being done within five miles of the courthouse, were useless and unnecessary, and the merest surplusage.
This affidavit can never be said to be more than formally defective, and if there is any defect in the affidavit it is one
But, again, it is my judgment that the act of 1884 is just as valid and enforceable now as it was the day it was passed, and that it has never been repealed or suspended by any subsequent law. When'the Code of 1906 was adopted, by express provision of section 1798 all local laws prohibiting the sale, barter, or giving away of intoxicating liquors were continued in force “until amended or repealed.” The act of 1884 was in full force then, and expressly so continued by that section. Nor the first time in the history of the state, state-wide prohibition was accomplished by the act of 1908. Before that time it was lawful to sell intoxicating liquors in certain localities in the