22 So. 2d 550 | Miss. | 1945
The appellant was indicted, convicted and sentenced to serve a term in the penitentiary for having had intoxicating liquor in his possession after having been previously twice convicted for the same offense.
The appellant's complaint is that the indictment (the charging part of which the reporter will set out in full),1 *498 does not sufficiently set forth an offense under paragraph (c) of Section 2613, Code of 1942, for which he was tried and convicted. Specifically the indictment fails to allege (1) that the crime charged is that provided by Section 2613, Code of 1942; (2) that the appellant's second conviction was on a charge of having intoxicating liquor in his possession after a former conviction; (3) under Section 2613, Code of 1942.
The first of these complaints is ruled by Brewsaw v. State,
The second and third of these complaints are based on Millwood v. State,
As in Millwood v. State, supra, the appellant did not demur to the indictment, but since the allegations omitted therefrom go "to the very essence of the offense attempted to be charged the omission thereof was not waived by appellant's failure to demur thereto." Herron v. State,
Because of these defects in the indictment, the judgment of the court below must be reversed, and, as in the Millwood case, a new trial awarded. This we understand the Assistant Attorney General to concede, and also that *499 the evidence was not sufficient to support the verdict. As to this, it is not necessary for us to express an opinion, as what we have here said indicates what the evidence must disclose.
Reversed and remanded.
J.P. Coleman District Attorney."