45 So. 2d 728 | Miss. | 1950
This is an appeal by the State from an order of the Circuit Court of Lee County, sustaining' defendant’s demurrer to an indictment for embezzlement. The defendant was ordered held under his same bond pending “posr sible action of another Grand Jury.”
The State appealed under authority of subsection (1), Section 1153, Code 1942, which reads as follows: “From a judgment sustaining a demurrer to, or a motion to quash an indictment, or an affidavit charging crime.; but such appeals shall not bar or preclude another prosecution of the defendant for the same offense. ’ ’
Only a question of law is presented by this appeal by the State of Mississippi, and the only assignment of error is that “The Circuit Court of Lee County erred in sustaining the demurrer to the indictment.” We have held that such appeal may be taken only on a question of law. State v. Wall, 98 Miss. 521, 54 So. 5; City of Gulfport v. Stratakos, 90 Miss. 489, 43 So. 812, 13 Ann. Cas. 855.
The indictment is in this language: “The Grand Jurors of the State of Mississippi, elected, summoned, impaneled, sworn and charged to inquire in and for the body of Lee County, State of Mississippi, at the term aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths- present that J. May late of the county aforesaid on the 17th day of November, A. D., 1948 with force and arms in the county aforesaid and within the jurisdiction of this court being then and there, by virtue of an oral contract of employment, the salesman and agent of one Walker Francis, did then and
The demurrer contains twelve grounds of attack upon •the foregoing indictment, only three of which, however, have been deemed worthy of discussion by this Court. They are the first ground, “That the indictment alleges the offense occurred November 17, 1948, whereas that was the date of the returning of the indictment.” Also, ■the sixth ground, “That the indictment does not allege ■the date of the alleged sale of the 1947 model Chevrolet by agents, bailees, et cetera, of property generally, or ■indictment does not allege the name of the person to •whom the 1947 model Chevrolet was alleged to have been sold. ”
There is some difficulty in determining under what particular statute the indictment was returned, whether under Section 2115, Code 1942, covering embezzlement by agents, bailees, et cetera, of property generally, or Section 2118, Code 1942, dealing with embezzlement of property held in trust or received on contract. How
As to the challenge of the indictment because it charges that the alleged crime was committed on November 17, 1948, and the indictment was returned on that same date, we are of the opinion that the indictment was not invalidated thereby. It is true that it appears to be the ■general rule that “Except as affected by statute, it is generally held that it must appear from the indictment that the offense was committed prior to its finding, and the failure to make such a showing is a matter of substance, and not of form, and cannot be amended or rejected as immaterial.” 42 C. J. S., Indictments and In-formations, Section 125, Subsection d, page 1009. .
This very rule, however, states that it obtains unless affected by statute. In this State, we do have such a statute, Section 2451, Code 1942, dealing specifically with
The public policy of this State on this subject is further illustrated, in cases where there is an applicable •statute of limitations, by the rule that evidence of the ■commission of the crime at any date within two years •prior to the finding of the indictment may be admitted. Kolb v. State, 129 Miss. 834, 93 So. 358, and others.
We are, therefore, of the opinion that it was error to ■sustain this ground of the demurrer.
As to the other two, set out hereinbefore, we have concluded also that the demurrer should not have ■been sustained because of the failure of the indictment ■to state the matters omitted. Indictments do not have to set forth the evidence, but only enough to inform the defendant sufficiently of the charge therein laid against him. Thus, we think this indictment does. It would have been harmless to give this information in the indictment, but, we think, equally harmless to fail to do so. We believe the trial judge was in error to sustain ■the demurrer to the indictment.
The defendant was held under the same bond to await the possible action of another grand jury. But ■we have concluded that error was committed, in sustaining the demurrer, and the State has appealed. The question of what judgment should be entered here, in addition to reversing the action of the lower court in sustaining the demurrer, in our view, is settled in the case of State
It is, therefore our conclusion that the judgment must be, and it is, reversed, and the demurrer overruled, and the cause remanded for trial on the indictment.
Reversed, demurrer overruled, and cause remanded for trial on the indictment.