Cage v. State

• Decision Date: 23 June 1913
• Citation: Cage v. State, 62 So. 358, 105 Miss. 326 (Miss. 1913)
• Court: Mississippi Supreme Court
• Parties: MAGGIE CAGE v. STATE

62 So. 358

105 Miss. 326

MAGGIE CAGE v. STATE

Supreme Court of Mississippi

June 23, 1913

March 1913

APPEAL from the circuit court of Madison county, HON. W. A. HENRY Judge.

Maggie Cage was convicted of the unlawful sale of liquors and appeals.

This is an appeal from a conviction of a violation of the liquor laws of the state. Section 1762 of the Code of 1906, referred to in the opinion, is as follows: "1762. On the trial of all prosecutions for the violation of law by the sale or giving away of liquors, bitters, or drinks, the state shall not be confined to the proof of a single violation, but may give in evidence any one or more offenses of the same character committed anterior to the day laid in the indictment or in the affidavit, and not barred by the statute of limitations; but in such case, after conviction or acquittal on the merits, the accused shall not again be liable to prosecution for any offense of the same character committed anterior to the day laid in the indictment or in the affidavit."

Reversed and remanded.

R. S Powell and Powell & Thompson, for appellant.

Our contention in this case is:

First that section 1762 of the Code of 1906, is unconstitutional as violative of section 26 of the Constitution of 1890.

Second, that there was no date laid in the indictment of the commission of the offense and consequently the court could not permit separate violations of the law to be given in evidence.

As to our first point as to the unconstitutionality of section 1762 of the Code, we have to say that where evidence of several offenses are permitted to be given in evidence, without any mention in the indictment as to the time and place of the commission of either of them, surely the defendant is not apprised of the nature and cause of the accusation made against him as required by said section 26 of the constitution. This court has decided that this section of the constitution was intended to secure "to the accused such a specific description of the offense as will enable him to make preparation for his trial," and also such identification of the offense that he may be insured against a subsequent prosecution therefor. See Noolan v. State, 1 Smedes & M. (Miss.) 562; Murphey v. State, 24 Miss. 590; Gerrard v. State, 25 Miss. 469; Riggs v. State, 26 Miss. 51; Norris v. State, 33 Miss. 373; Newcomb v. State, 37 Miss. 383; Williams v. State, 42 Miss. 328; Riley v. State, 43 Miss. 397; Thompson v. State, 51 Miss. 353.

Where several offenses are permitted to be given in evidence, how can a defendant avail himself of this constitutional provision when there is no date to the indictment and no time, place or circumstance to put him upon notice; how can he plead a former conviction, or a former acquittal, or the bar of the statute of limitations, or an alibi? How can he prepare for his defense at all when the first notice is given to him by witnesses on the trial when it is too late to summon his own witnesses to rebut the evidence of the state? He may find too late that his witnesses are not in court or that he has summoned them for the wrong time. He might be able to show that the witnesses of the state were not present at the time of the alleged sale and yet he can prepare for none of these things under an indictment such as returned in this case.

We therefore say that section 1762 of the Code permitting divers offenses to be given in evidence without any information to the defendant by which he can prepare for trial is unconstitutional and void.

The legislature might just as well have provided that in all prosecutions for murder many other murders committed within a given time might be introduced in evidence against the defendant without giving him any notice whatever of the time, place or circumstances of the same, or it might have provided just as well that if a party was charged with any crime then any other offense of which he might be guilty within two years could be given in evidence against him without any mention being made of what the other crimes were in the indictment. Surely this would not be in compliance with section 26 of the Constitution. It does look as if the legislature is wandering away from the old landmarks in its righteous attempt to break up blind tigers.

Second. The court will note from the indictment in this case that it fails to charge any time for the commission of the offense and the court will further note from the testimony in the case that numerous charges were given in evidence.

Now previous to the enactment of section 1762 of the Code of 1906 this court decided that it was reversible error to give evidence of more than one sale on the trial of an indictment of this character. See Nall v. McComb City, 70 Miss. 699; Ware v. State, 71 Miss. 304.

This court further decided in the case of Wadley v. State, 81, "that the state must take the benefits of section 1762 subject to its burdens." Now this statute provides that evidence of the violation of the liquor law may be given in one or more offenses of the same character committed anterior to the day laid in the indictment.

Our contention is that before the state can avail itself of this provision in this section of the Code some day must be laid in the indictment; it being a criminal statute, it must be strictly construed and unless some day is laid in the indictment, more offenses than one cannot be inquired into. This section of the Code further provides that the defendant shall not be subject to prosecution for any offense of the same character committed anterior to the day laid in the indictment. If there is no day laid in the indictment, how can the defendant have the benefit of this provision? Would it not be judicial legislation, I humbly submit, if the court will say that the defendant shall be exempt from the time of the return of the indictment when no day was laid in the indictment? Why couldn't the court just as well say that the time of the exemption shall be from the day of the trial. In other words the law is plainly written; can the courts read into it something which is not there?

Frank Johnston, assistant attorney-general, for the state.

The question of the constitutionality of section 762 of the Code as violative of section 26 of the constitution is not presented in the case for review, or for the decision of this court. The evidence in the case in regard to several sales was introduced by the state without any objection whatever on the part of the defendant. There was no motion made by the defendant, at any stage of the trial, for a specific statement from the district attorney of the several sales that were introduced in evidence. There was no motion of any sort to require the district attorney to elect which sale he was to proceed under. There was no objection made of any...