Sudduth v. State

101 So. 711 | Miss. | 1924

Cook, J.,

delivered the opinion of the court.

Oil April 6, 1923', the appellant was convicted in a justice of the peace court of Leake county on a charge of unlawfully having in his possession more than one quart of intoxicating liquors, and from this conviction he appealed to the circuit court. In the circuit court he filed a plea of immunity, alleging in effect that ¡after he had appealed said cause and while it was pending in the circuit court he was subpoenaed before the grand jury at the November, 1923, term of the circuit court; that pursuant to said subpoena he appeared before the said grand jury, and in answer to questions propounded to him there testified to all the facts and circumstances relating to the charge then pending against him on appeal and for that reason he claimed immunity from further prosecution under section 1792, Code 190G (section 2106, Hemingway’s Code). The state demurred to this plea on the ground, first, that the plea was insufficient to show that the defendant was immune from prosecution or punishment under the affidavit, and, second, the plea shows that defendant appeared before the grand jury long after the date of the filing of the affidavit upon which the prosecution was based.

This demurrer to the plea of immunity was sustained by the court, and the defendant was placed upon trial and again convicted. After the conviction in the circuit court the appellant filed a motion in arrest of judgment, and praying that non obstante veredicto an order be entered vacating said conviction and discharging the appellant from further prosecution of said charge; the motion setting forth in detail the facts in reference to his appearance before'the grand jury and the testimony he was there required to give in regard to the particular charge upon which he had been convicted. On the hearing of this motion a statement of facts, signed by the district attorney and the attorneys for the defendant, was offered in evidence, the same being as follows:

‘ ‘ That on the motion in arrest of judgment the following is true:

“That there was an affidavit made.against Tom Sudduth in April, 1923, in Leake county, Miss., district No. 2, charging him with possessing liquor; that he was duly, tried before a justice of the peace of Leake county, Miss., and was convicted. That he appealed his case to the circuit court of Leake county, Miss. That during the month of November, 1923, and while said appeal was pending before the circuit court of Leake county, Miss., and before he had been tried in said circuit court on said charge, the regular November term of the circuit court convened, and a grand jury was impaneled. That during said term of said grand jury the said defendant Tom Sudduth. was duly served with a subpoena commanding him to appear before said grand jury. That this subpoena was duly served, and he was brought before said inquisitorial body. That while he was before said grand jury he was by them asked about and answered all questions concerning said possession of said liquor that he is now charged with having, possessed. That he then and there and at that time admitted all matters concerning said possession of said intoxicating liquor that he is charged with having possessed in this case. In other words, that he, while before said grand jury, was asked about his said violation of the law in regard to having liquor in his possession, and he answered truthfully all such questions asked him, and admitted having the same in his possession.

“That thereafter, to-wit, at the April term, 1924, of the circuit court of Leake county, Miss., he was arraigned on said charge in said circuit court, and filed a plea of immunity to said prosecution, which was demurred to by the state, and the demurrer sustained by the court. That exception was taken by the defendant and the case tried, and this, case for which he was tried and convicted was> the case about which he was questioned, and concerning which he gave information to the grand jury of Leake county, Miss., at the November term, 1923.”

The court overruled this motion, and imposed a sentence on the defendant, and from this judgment this appeal was prosecuted.

The demurrer to the indictment was erroneously sustained, and for this error the judgment of the court below must be reversed. The precise question was decided in the case of Triplett v. State, 101 So. 501, decided October 13, 1924, and not yet (officially) reported. See, also, Griffm v. State, 127 Miss. 315, 90 So. 81; Lucas v. State, 130 Miss. 8, 93 So. 437; Hosey v. State (Miss.), 100 So. 577.

Upon the statement of facts as agreed to by the representative of the state, and offered in evidence on the motion, in arrest of judgment, the appellant was clearly entitled to the immunity guaranteed by the statute, and we are of the opinion that this motion should have been sustained and the appellant discharged. The judgment of the court below will therefore be reversed, and judgment entered here discharging the appellant.

Reversed, and judgment discharging- appellant.

Reversed.