Summary
In Millwood v. State, 190 Miss. 750, 1 So.2d 582 (1941), Millwood was indicted as a third offender under the "whiskey" statute which made a third offense punishable as a felony by "imprisonment... 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."
Summary of this case from Page v. StateOpinion
No. 34484.
April 14, 1941.
1. CRIMINAL LAW.
The purpose of gradations in punishment provided by statute for unlawful possession or sale of intoxicating liquors is to attack deliberate repeaters, or those who would persist in violations of the statute after being brought to book for prior violations (Laws 1912, chap. 214).
2. INDICTMENT AND INFORMATION.
Under statute providing gradations in punishment for unlawful sale and possession of intoxicating liquors, where accused is prosecuted as a third offender, indictment must charge and proof must show that accused had been convicted of a first offense, that after conviction of first offense, he committed a second offense and was convicted for it as such, and that after successive offenses and convictions in such manner he committed the third offense (Laws 1912, chap. 214).
3. STATUTES.
Statutes must be so interpreted as to bring them into conformity with the manifest purpose and reasons which lie at their foundation.
4. STATUTES.
The omission or addition of words in a code revision does not require change in construction of a statute unless legislative intent to change is clear.
5. INDICTMENT AND INFORMATION.
The code revision of statute prescribing gradations in punishment for unlawful sale or possession of intoxicating liquors does not change the requirement that where accused is prosecuted as a third offender, indictment must charge and proof must show distinct prior offenses and convictions (Laws 1912, chap. 214; Code 1930, secs. 2, 1974).
6. CRIMINAL LAW.
Where accused was prosecuted as a third offender under statute prohibiting the unlawful sale or possession of intoxicating liquors, but indictment did not charge and proof did not show prior distinct offenses and convictions, judgment of convictions as a third offender would not be reversed only as to sentence, but would be reversed in its entirety, and the case remanded (Laws 1912, chap. 214; Code 1930, sec. 1974).
SMITH, C.J., and ROBERDS, J., dissenting.
APPEAL from the circuit court of Humphreys county, HON. S.F. DAVIS, Judge.
Harmon W. Broom, of Jackson, and N.W. Sumrall, of Belzoni, for appellant.
Under Section 1974 of the Mississippi Code of 1930 the unlawful possession alone of intoxicating liquor is not a felony. It is the third offense that constitutes a felony. It is essential that the accused must have been convicted as a first offender, as such, and as a second offender, as such, before he can be convicted, and before the circuit court would have jurisdiction to convict the accused of a felony, as provided under said section for a third offender. The two prior convictions must have been final convictions.
Sub-sec. B, Sec. 1974, Code of 1930; Laws of 1912, Chap. 214, Sec. 1 (c); Williams v. State, 87 So. 672, 125 Miss. 347.
Appeal on the first conviction was pending at the time the appellant was indicted on the second offense, which was in truth and in fact an indictment for a first offense, for said indictment does not charge that it was an indictment for a second offense.
Gaston v. State, 65 So. 563, 107 Miss. 484; Hoggett v. State, 57 So. 812, 101 Miss. 272; Boroum v. State, 63 So. 297, 457, 105 Miss. 887.
Assuming for the sake of argument that the appellant had been previously convicted of a second offender, then we say that the sentence imposed by the circuit court was a suspended sentence and was not a final sentence for a second conviction, under Sub-Section B of Section 1974, since that section makes it mandatory on the court to impose a jail sentence and not having imposed a jail sentence then it necessarily follows that if it was a sentence for the violation of Sub-Section B of Sec. 1974, then it was a suspended sentence, and therefore the sentence was not final, and the court might at any time recall the appellant and enforce that part of the sentence so suspended.
Fuller v. State, 57 So. 6, 39 L.R.A. 242; Howard v. State, 57 So. 9; Allen v. State, 57 So. 9; Hoggett v. State, 57 So. 9; Taylor v. State, 74 Miss. 544, 21 So. 129; Gibson v. State, 8 So. 329, 68 Miss. 241.
The charge in the indictment is a mere conclusion of the district attorney as to the fact of the appellant's previous convictions, and the indictment did not directly charge a violation or conviction in the two previous cases relied on in the indictment, and therefore the indictment does not meet the requisites of a valid indictment, in that it did not sufficiently charge the third offense under the statute.
State v. Jones, 58 So. 72, 102 Miss. 89; Cheanault v. State, 122 So. 98, 154 Miss. 21; State v. Stovall, 59 So. 484, 102 Miss. 519; Harkness v. State, 48 So. 294, 95 Miss. 506; Norwood v. State, 37 Miss. 382; Brewsaw v. State, 168 Miss. 371, 151 So. 475.
An omission to allege and describe two former convictions goes to the very essence of the offence and renders it void and subject to attack at any time, notwithstanding Section 1206 of the Mississippi Code of 1930.
Cook v. State, 72 Miss. 571; Taylor v. State, 74 Miss. 544.
Geo. H. Ethridge, Assistant Attorney-General, for the State.
Where the indictment insufficiently charged the third offense, defendant would not be sentenced for a first and second offense constituting a misdemeanor but would be entitled to stand on his demurrer which he had interposed to the indictment and which had been overruled.
Brewsaw v. State, 168 Miss. 371, 151 So. 475.
Under the statute the unlawful possession alone of intoxicating liquor is not a felony; it is the third offense that constitutes the felony. The first two convictions are therefore essential elements of the felony; without them there is no felony; they are just as much a part of the felony as the unlawful possession of the liquor. Furthermore, to constitute a felony the two previous convictions must be under the same statute. The indictment, therefore, should have charged that the two previous convictions were for a violation of this particular statute, and in what court or courts they were had and when.
Brewsaw v. State, 168 Miss. 371, 151 So. 475; Robinson v. State, 101 Miss. 272, 57 So. 812; Hoggett v. State, 101 Miss. 584, 58 So. 530.
To justify a greater punishment for a second or subsequent offense the indictment must allege that the offense is a second or subsequent offense, or it will be deemed a first offense.
Hoggett v. State, 101 Miss. 584, 58 So. 530.
It seems to me that when we consider Section 1974 that it was contemplated that after a person was convicted of the unlawful possession of intoxicating liquors, he was charged with notice and the warning that if he again committed the offense after such conviction that he would suffer a greater punishment than was then imposed upon him for the first offense. And, likewise, if he was convicted of a second offense, he was then warned by statute that if he against violated the law by the unlawful possession of intoxicating liquors he would be branded with the stigma of felony and punished by imprisonment in the state penitentiary.
In charging statutory offenses all of the necessary elements of the crime as defined in the act must be charged, and the omission of an essential element makes the affidavit or indictment bad.
State v. Sam, 154 Miss. 14, 122 So. 1.
I think that the experience of the ages shows that fairness and justice are more conducive to law and order than mere convictions, although it is important that convictions be had and that the law be enforced against those who violate it. Severity is not always conducive to law enforcement. It requires justice and sometimes justice requires severity. I have no sympathy whatever with any person who violates the laws with reference to possession and use of intoxicating liquors. That is an evil of great magnitude and requires firm and strict enforcement of the law, but merely to enforce the law against such iniquities should not lead us to misinterpreting the law in order to eradicate that evil.
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.
"(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, 168 Miss. 371, 151 So. 475, when the procedure seeks to hold the accused as a second offender it must be charged in the affidavit or indictment and shown by the proof that previously to the commission of the offense then being prosecuted, the accused had been convicted of a first offense under the statute; and when the accused is being prosecuted for a felony or third offense, the indictment must charge and the proof must show (1) that the accused had been convicted of a first offense, and (2) that after being convicted of the first offense he committed the second offense and was convicted for it as such, and (3) after the successive offenses and convictions in the order aforesaid, he committed the third or felonious offense.
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., 186 Ala. 192, 65 So. 177, 178, Ann. Cas. 1916E, 99. And see the text, and the numerous cases cited in 59 C.J., pp. 894-896.
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.
SPECIALLY CONCURRING OPINION.
I assent to the interpretation given by the majority opinion to Section 1974, Code of 1930, but do not agree that the basis therefor is necessarily related to a principle which revives and transplants the former statute in haec verba, even though it allows an interpretation thereof to take into account the history and purpose of the former statute. Such factors are under all circumstances available to this end, and the existence of a former enactment dealing with the same or similar subject matter ought to be seen merely as a relevant or incidental circumstance. To hold otherwise invites scrutiny of all statutes repealed pursuant to Section 3 of the Code of 1930, with a view to their restoration on the ground that they can be identified as precursors of a later statute.
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.
DISSENTING OPINION.
The amendment just made by the Court to paragraph (c) of Section 1974 of the Code of 1930 may be, and I am inclined to think is, a good one, but to make it is the province of the Legislature and not of this Court. All that paragraph (c) of that section of the Code, as written, requires to support a sentence is imposed under it is that the conviction on which the sentence is imposed shall be "after having been twice convicted of its [the section's] violation."
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, 161 Miss. 17, 135 So. 499. If the Legislature otherwise intends, that intention must be evidenced by an "express exceptions or regulations relating thereto" set forth in the section by which the former statute was brought into the Code or elsewhere in the Code. Of course, if the Code section is ambiguous, resort may be had to the former statute in order to clear up the ambiguity. But, if Section 3 of the Code is to be held not to govern here, the same result should follow under the rule of construction here adopted and applied, for it seems clear that the Legislature intended the section to be enforced as adopted by it, for had it not so intended and desired the old statute to remain in force as there written, it is hardly probable that it would have left so serious a matter in doubt. It would not have left its intention relative thereto to be ascertained by rules of construction which the courts might or might not adopt or apply.
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, 125 Miss. 347, 87 So. 672; Gaston v. State, 107 Miss. 484, 65 So. 563; Boroum v. State, 105 Miss. 887, 63 So. 297, 457, wherein the Court held that where a defendant is tried, convicted and sentenced on an indictment under paragraph (c) of this statute, and the evidence failed to disclose the alleged prior convictions, the judgment rendered on the verdict should be set aside only insofar as it imposes the sentence, and that the case should be remanded for sentence under paragraph (a) of the section.
Brewsaw v. State, 168 Miss. 371, 151 So. 475, is in conflict with these cases, but they are not referred to in the opinion there rendered and its holding that where the trial is on an indictment which attempts but fails to charge a felony, the defendant is not called on to defend himself from a misdemeanor included within the allegations of the indictment and cannot be convicted on that trial therefor, runs counter to and conflicts with Section 1290, Code of 1930.
Roberds, J., concurs in this opinion.