No. 34484. | Miss. | Apr 14, 1941
Lead Opinion
Chap. 214, Laws 1912, Section 2236, Hem. Code 1927, in prescribing the grade of the offense or the degree of the punishment for violations of that statute which prohibits the sale, or having in possession for sale, of intoxicating liquors, provides as follows:
"(a). By a fine of not less than fifty dollars nor more than five hundred dollars, or to be imprisoned in the county jail not less than one week nor more than three months, or both, for the first conviction for an offense committed after the passage of this Act. *755
"(b). By a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than sixty days, nor more than six months, if the conviction is for an offense under this Act, committed after a conviction and punishment for a former offense hereunder.
"(c). By imprisonment in the State penitentiary not less than one year nor more than five years, if the conviction is for an offense under this Act committed after the person convicted has been convicted and punished for two former offenses hereunder."
It was the evident purpose of the quoted gradations to attack deliberate repeaters, or those who would persist in violations of the statute after being brought to book for previous violations. As correctly said by the learned Attorney General, who confesses error, "it was contemplated that after a person was convicted of the unlawful (sale or) possession of intoxicating liquor, he was charged with notice that if he again committed the offense after such conviction he would suffer a greater punishment than was imposed upon him for the first offense. And likewise, if he was convicted of a second offense he was then warned by the statute that if he again violated it (that is to say by an offense committed after the second conviction) he would be branded with the stigma of felony and punished by imprisonment in the State penitentiary."
And under the reasoning set forth in Brewsaw v. State,
Neither the indictment nor the proof in this case, which is a prosecution as for felony, measures up to the requirements set forth in the foregoing paragraph, and a reversal would follow as a matter of course, except that the point has been suggested in conference that the quoted language of Chapter 214, Laws 1912, as regards the elements required for the application of the heavier penalties for the second and third offenses, has been changed in Section 1974, Code 1930, thus allowing the contention that all that is now required for the felony charge is that there shall have been two previous convictions, even though the three offenses may have been committed on the same day, and before any convictions for either of them.
The construction last suggested would drain the gradations provided by the statute of all reason; and it is a maxim of construction of legislative enactments that they shall be so interpreted as to bring them into conformity with the manifest purpose and reasons which lie at their foundations. But here the change was in a general revision of the statutes of the state, and as to this the authorities all say that "no rule of statutory construction rests upon better reasoning than that in the revision of statutes, alteration of phraseology, the omission or addition of words, will not necessarily change the operation or construction of former statutes. The language of the statute as revised or the legislative intent to change the former statute must be clear before it can be pronounced that there is a change of such statute in construction and operation." Cole v. Sloss-Sheffield Steel Iron Co.,
The authorities recognize that brevity, conciseness, abridgement and condensation are among the ends towards which code revisions strive, and that these rather than changes in the meaning and purpose of the incorporated statutes are the objects, unless the purpose to change the meaning and effect of a particular statute is so plainly apparent that no other conclusion can be reasonably entertained. And in this connection it may be interesting to note that the Code Commissioners in submitting their revision of the general statutes of the State in 1930 sent along with it a booklet in which they pointed out the suggested changes in every section revised, and as to this particular section they said: "Rewritten for brevity and to eliminate obsolete matter."
In accordance with the rule to which we have now called attention, our present Section 1974, Code 1930, must be interpreted, in regard to the gradations of the offense, as if the amplified language of Chapter 214, Laws 1912 had been brought forward and incorporated in haec verba, and with the requirements in the procedure under it which we have already stated. It is true that by Section 2, Code 1930, the old law was repealed, and it is not that we look to the old law as being still in existence; but we must consider it, nevertheless, by way of aid to a proper construction or interpretation of the revised abridgment which took its place.
It has been suggested also that we should reverse only as to the felony sentence, but remand for a proper sentence as a misdemeanor. We think that the reasons for an entire reversal and remand are as much here present in substantial aspects as in Brewsaw v. State, supra, and that will be the judgment here.
Reversed and remanded.
Concurrence Opinion
Since the third offense under paragraph (c), Section 1974, must be charged as such, so the second offense must have been likewise so alleged. Paragraph (c) makes its violation a felony. It is not a mere provision permitting a penitentiary sentence upon conviction of a misdemeanor. A defendant indicted under this paragraph would be entitled to the number of peremptory challenges applicable to felonies. The defendant has the right to demand and to be informed of the nature and cause of the accusation against him. Section 26, Miss. Const.
I assent to the disposition of the case by reversal and remand rather than a mere remand for proper sentence. In addition to the reasons given in the majority opinion, it is apparent that if the defendant is considered as having been convicted of a constituent misdemeanor it will be seen that he was convicted upon testimony which was inadmissible and highly prejudicial. Two former convictions for the sale of intoxicating liquor were proved by the state. Regardless of how appropriate such evidence would be in a proper prosecution under paragraph (c), it was so improper and prejudicial under a prosecution as for a first offense that this Court ought to take notice thereof. *759
Dissenting Opinion
My associates do not hold otherwise, but they say that language contained in Chapter 214, Laws of 1912, omitted when it was brought forward into the Code as Section 1974 thereof, must be read into the section by the Court and the section interpreted "as if the amplified language of Chapter 214, Laws 1912 had been brought forward and incorporated in haec verba." The rule cited for this is in vogue in some states, but has never heretofore been acted on by this Court and runs counter to Section 3 of the Code, which provides that: "From and after the said first day of November, nineteen hundred and thirty, all acts and parts of acts, the subjects whereof are revised, consolidated and re-enacted in this Code, or repugnant to the provisions contained therein, shall be, and the same are hereby, repealed, subject, however, to any express exceptions or regulations relating thereto which may be contained in this Code . . ." This can only mean that where a former statute has been brought forward into a section of the Code, the meaning of the section must be determined by the language chosen by the Legislature to express its purpose when enacting the Code. Cf. Eagle Lumber Supply Company v. Robertson,
In any event, the judgment should be reversed only insofar as it imposes sentence under paragraph (c) of the statute, and be remanded only for sentence under paragraph (a) thereof. The appellant was indicted and tried for making a particular sale of intoxicating liquor after he had been theretofore twice convicted for making similar sales. He could not have been convicted without proof of the particular sale. Consequently, the verdict of guilty as charged necessarily includes guilt as to the particular sale. This exact question was decided in Williams v. State,
Brewsaw v. State,
Roberds, J., concurs in this opinion.