Maxie v. State

97 So. 560 | Miss. | 1923

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction for manufacturing intoxicating liquor, and the only assignment of error that requires a specific response is that the appellant was denied the immunity from prosecution to which he was entitled under section 1792, Code of 1996 (section 2106, Hemingway’s Code).

The facts on which the immunity is claimed are that, when the still, for assisting in the operation of which the appellant was convicted, was discovered by the prohibition officers, a fight occurred between' the officers and the persons operating the still,-in which one of such persons was killed by the prohibition officers, and on the preliminary hearing before a magistrate on a charge against one of the officers for murder the appellant was introduced by and testified as a witness on behalf of the state. The statute in question provides that:

“No person shall be excused from attending and testifying before a grand jury, or before any court, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of this chapter. . . . But no person shall be prosecuted or subject to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before the grand jury, or any court.”

The chapter of the Code of 1906 therein referred to is No. 40, which deals with intoxicating liquor, and does not include prosecution for homicide. The broad language of the statute, that “no person shall be excused from attending and testifying before a grand jury, or before any court,” is necessarily qualified by that which immediately follows, and which is “or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of this chapter,” so that the immunity therein granted is only to a person who testifies in such a cause or proceeding. The testimony of the appellant not having been given in such a cause or proceeding, he is not entitled to the immunity claimed.

Affirmed.