*1 complaint just cause of fire and he has no chief, assistant rights appellee and other relative of the- threat. The department, growing appellant’s fire members the position fire chief, of the of аssistant out abolition by mayor in the first instance the best be determined could ap- if dissatisfied therewith the commissioners, and pellee remedy appeal an to the Civil Service ’s would he necessary, if to Circuit аnd from Commission, there, Court. prescribe judgment what
The statute failed should, if the order of the Civil render Circuit Court This omission should he affirmed. Commission Service disap- may when that order hut not harmless; be it is proved, my statute here done. The associatees have as clearly provide the case event, in that whether, should by below, it to he court should remanded to Supreme Court or whether Commission, Service Civil Commis- order which Civil Service should make the My judgment, have made. associates should in its sion, seeking power, without the latter here, exercised necessary expressly, being justify or either it, implication, conferred. judgment reversed, below shоuld be the court affirming order of the Civil here,
and one rendered Commission. Service v. State.
McGowan May Suggestion (In Error March 1946. Overruled Banc. 1946.) 36027.] [25 (2d) So. 131. No. *2 appellant. Martin, G. L. Prentiss, *3 Attorney Ethridge, Rice, Greek L. General, Geo. H. Attorney appellee. General, Assistant *5 appellant, suggestiоn G. I*. Martin, Prentiss, on of error. *6 by by appellant,
Argued orally Martin, and G. L. for appellee. Ethridge, H. for Geo. opinion court.
Alexander, J., delivered the Appellant under Code Section convicted was makes it unlawful The statute offеnder. a second ‘‘ away give punishable or or to sell barter, for one and intoxicating possession keep . his . . or have or .” n Subsection (b) liquor spirituous . thereun- . or penalty second provides “for the increased an for der violating section.” for conviction charged alleges was the offense indictment The a when he, “at time in December committed duly Sept. previously, been to-wit, 6,1939, had defendant, posses- for legally the unlawful convicted and tried and intoxicating previ- liquor, whiskey, sion of had also and August ously, duly legally been to-wit, 31, 1944, intoxicating tried and convicted for the unlawful liquor, whiskey, sale in and Court of Jefferson Circuit County, Mississippi Dаvis . .” . point notice first the
We that the no indictment states offense in that it offense to former refers the second of which had been con- offenses, one the defendant prior years victed more than two tо the indictment above quoted. opinion two-year are of the statute We applies solely prosecutions, of operate limitations does not prior the status of the defendant as recast оffender. assigned alleged
There next innate in- as error the validity arising indictment out of the lack of liquor identity subsequent posses- between a sale of and a sion thereof. statute itself answers this contention. *7 argumеntative pos- implies Aside from an view that sale places category in the of of- session, statute second the guilty “violating fenders those who of section,” are this any obviously which means act therein denounced. to the the indictment
We come next contention that charge prosecution to that had under fails the is Section required by Rogers State, v. 1 98 Miss. 2613, Code as 1942, (2d) principles 22 The stated in case 495, So. 550. this State, stem from Brewsaw v. 168 Miss. 151 371, 475, So. language follows, as “The there used was 476. charged the two therefore, should that indictment, par previous a violation convictions were for of this they and in what court or courts were statute, ticular ’’ had and when. ' necessity Rogers case that the It noticed in the was particular statute under which con- of the citation requirement imposed by judicial sought was a viction was derogation general оf criminal construction rules upon procedure. Brewsaw case was the reversed Yet, sufficiently ground “failed to the indictment that the ” only felony. charge be shown is true need the That this prosecution the fact that the were and conviction alleged for a third offense when it de- not that the was fendant-had been theretofore convicted as a second of- fender.
Since an indictment for a first offense under this stаtute charge particular need not it is under that section, it charging would seem that in second it would a offense not necessary be that the first offense be set forth with a greater particularity required than in the in- was first may support stance. Such as reason be available language of the Brewsaw case exhausted in maintain- ing proposition that an indictment for second and a third offense should exhibit for accreditation the number only language charge of the statute from which was-, prosecution by borrowed under which indict- ment could bé had. For all the Court defend- knew, in the ant Brewsaw case had been twice before convicted only as a first offender. a His status convicted second as alleged. offender not was (2d)
Millwood v. State, Miss. 1 So. was dealing again necessity with a third Here offense. charged that- the indictment show that the defеndant was as a third offender under the statute was stressed. It ought appeal requirement to reason an repeater indictment one as a under this section need only prosecution authority show that such undеr was Every support presumption that section. would the fact formerly if he a that- had been convicted as second of- previous fender in the circuit such conviction was court, same, under an which indictment conformed to the re- quirement. His second offender under status *8 presupposes statute conviction of a first offense under a the statute.
Rogers supra, State, v. likewise dealt with a third of fense, seemed Brewsaw and the Court to construe the case requiring only as third that “the and convictions second ” be 22 [198 must ‘under this section.’ Miss. 495, So. (2d) implies a 551.] second of a A statute violation a implies so third violation violation; former likеwise a allegation proof prior first The that the and second. and to- county, in court were the circuit of convictions put mentioned, with the hereinafter considerations gether State, of Trivillion v. 195 Miss. beyond sсope case 285. 15 So. (2d) is but foregoing decision, is discussion and not construing allegations for necessity given point which fol- charging of the indictment here. The clause ‘‘ as did then follows: excerpt 'quoted lows above the county in aforesaid, aforesaid, and there on the date in his wilfully possession (and have unlawfully once for the time, having second been convicted intoxicating liquor of certain possession afоresaid), intoxicating to-wit in violation of and liquor, whiskey, Mississippi to Section contrary paragraph (b), Code 1942.”
The three cited have common re- cases above be subsequent proceeded agаinst that offenders quirement end, alleged they that as such. this it must be To have we violated the same section. Since repeatedly alleges in section, but one such and since the indictment possessed in violation liquor substance the defendant such was the second time this Section he had been thereto- offense had been committed and that in the of Jefferson Davis fore convicted Circuit Court dates, on no with definite dеfendant Mississippi, County, adequately to comprehension could fail be a modicum against cause of the accusation informed of the nature and him. we have
The lines with which heretofore bound to subjeсted further strain. are too' taut be statute not assignments have been examined but found Other reversal. justify Affirmed.
280'
Dissenting Opinion. Sydney Smith, J., C. dissenting a opinion. delivered In order to bring this of (b) case within subsection Section 2613, 1942, Code indictment shоuld have al in leged substance and in form Jack Mc proper that in the Gowan, and county having aforesaid after been a convicted in of competent named court of jurisdiction a violation of Section 2613, 1942, did, Code the-- on day of in August, 1944, possession whiskey his- contrary 2613, to Section against and the Code 1942, peace and of dignity of Mississippi1 the State Brewsaw v. 168 State, Miss. 371, 151 475; State, So. Millwood v. 190 Miss. 750, 1 582; Rogers State, 495, So. v. Miss. (2d) 198 So, (2d) 550. possession This indictment the alleges appellant the in whiskey contrary of December, 1944, 2613, to Section 1942, wholly allege Code but fails to either of the two former convictions referred to therein were for violations of that of the Code. The in Section dictment, does not case within sub therefore, bring the section of 1942. (b) 2613, Consequently, Section Code under the the supra judgment authorities should be re punishment versed and the remanded trial cause and under subsection the of that Section of Code. (a) though only, good, 1A would not the form for such an indictment allegations) (after setting on the- be forth usual formal day of-John convicted in the Circuit Court of- Doe was sale, may Mississippi, possession (or County, etc., as the case 1942, be) 2613, in Code on violation of Section and thereafter - day -, , county -, of did of State of in the 19— possession (describe liquor) Mississippi, or name con have in his trary against peace to the Section Code and aforesaid blanks, course, dignity Mississippi. of State These was in filled and if the conviction the court of should be out former justice allеgation peace conform thereto. should Smith, L. Sr., Roberds, A. JJ., concur this dis- senting* opinion. *10 J.,
Griffith, the the opinion sug- delivered of court on gestion of error.
On original made appellant point, the submission the but any without the of the that authorities, citation of no proof made was Jack McGowan who was shown by the judgments, introduced evidence, in been formerly convicted, person was same ap- pellant. He has renеwed upon point his insistence and line cites the of cases which hold that “to warrant the application authorizing of a statute additional punish- ment of one convicted of crime former upon proof of identity against conviction, accused the one whom the former judgments were entered estab- must be evidence; proof lished affirmative bv mere of identity of names not being sufficient.”
As against view there line this of which cases identity “holds name of of the defendant and the person previously prima convicted is facie evidence of identity of person, in the testi- and, absence rebutting mony, finding identity.” supports such сases most of them are collected in the notes to 31, 158 v. Beaudoin, State 131 Me. A. 85 A. R. 1101, L.
Notes pages 1107-1113, having them, considered we view stated; concur in the last and because the contention might in these othex’wise arise cases we future, add supplement original opinion. of error overruled.
Suggestion