Elmore v. State

• Decision Date: 12 January 1903
• Citation: 81 Miss. 422,33 So. 225
• Court: Mississippi Supreme Court
• Parties: MACK S. ELMORE ET AL. v. STATE OF MISSISSIPPI

33 So. 225

81 Miss. 422

MACK S. ELMORE ET AL. v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 12, 1903

October 1902

FROM the circuit court of Holmes county HON. WILLIAM F. STEVENS Judge.

Elmore and his partner, Johnson, appellants, were indicted, tried and convicted of a misdemeanor, under laws 1900, p. 153, ch 119, sec. 10, and appealed to the supreme court. Their demurrer to the indictment was overruled by the court below and this was assigned as error in the supreme court.

Reversed and remanded.

Noel & Pepper and H. H. Elmore, for appellants.

The truth of the averments of the indictment may be conceded and yet appellants be guilty of no offense. If "what is charged may be true, and yet the defendant may not be guilty of the offense contemplated, " the indictment is bad. State v. Bardwell, 72 Miss. 535.

An indictment must be "so specific as to give notice of the act made unlawfully, and so exclusive as to prevent its application to any other acts than those made unlawfully." Sullivan v. State, 67 Miss. 346.

The indictment should have stated for how long the road was in bad repair. The contractor cannot prevent washouts, and must have a reasonable time to get over his roads and mend them. "Neglecting to keep a road in good repair and condition" is no more specific than "neglecting his duty." If anything, it is more general, for the law will not impose an impossible thing, even where the promisor undertakes and contracts to perform it. As to the necessity of particularity in an indictment, see Finch v. State, 64 Miss. 461; Rawls v. State, 70 Miss. 739; Sullivan v. State, 67 Miss. 346; State v. Bardwell, 72 Miss. 535; Wharton Crim. Pl. and Pr., secs. 220, 221.

The road law of 1900 is the only law visiting a negligent contractor with a criminal punishment. That law is an optional law, depending on the recorded will of the board of supervisors of each county for its vitality. Section 11 of the act.

Section 11 of the law complies with sec. 85 of the state constitution, which is as follows: "The legislature shall provide by general law for the working of public roads by contract or by county prisoners, or both. Such law may be put into operation only by a vote of the board of supervisors in those counties where it may be desirable." From the reading of the indictment how can any court know whether this road law of 1900 is in the dormant stage in which the law makers left it, or whether it had been quickened into life by the act of the supervisors? The indictment should allege that there is an order of the board of supervisors to that effect. Proof of the existence of that fact is a prime requisite of conviction. In logical sequence, the existence of the order of the board would be the first fact to be established by evidence.It is the base upon which the prosecution must erect its case.

In the fact that the late road law is optional, it is similar to the liquor local option law. The optional feature of the road law differs from the optional feature of the liquor law in that the power of option in the former is vested in the board of supervisors, and not with the people of the county. Speaking of the local option act of 1886, having the sufficiency of an indictment for the unlawful sale of intoxicants under consideration, the supreme court, in Norton v. State, 65 Miss. 301, say: "No punishment could be inflicted under the local act until it was put in force by an election; and whether the act has been put into operation by the result of an election held for that purpose in any county is a matter of fact which must be charged in the indictment and proved on the trial for its violation. See also West v. State, 70 Miss. 598; Loughridge et al. v. State, 3 So. Rep., 367.

By virtue of § 1621, Code of Mississippi of 1892, the court is...