Evans v. State

• Decision Date: 09 June 1930
• Docket Number: 28642
• Citation: 157 Miss. 645,128 So. 737
• Court: Mississippi Supreme Court
• Parties: EVANS v. STATE

128 So. 737

157 Miss. 645

EVANS v. STATE

No. 28642

Supreme Court of Mississippi

June 9, 1930

Division B

CRIMINAL LAW. Defendant who, while charged with possessing liquor, was called before grand jury, and testified concerning subject of prosecution, held entitled to immunity (Hemingway's Code 1927, section 2260).

Under section 2260, Hemingway's Code 1927, section 1792, Code of 1906, a person under indictment, or charged by affidavit with the unlawful possession of intoxicating liquor, who is called before the grand jury, without his connivance, and gives testimony pertaining to the subject-matter of the prosecution, is entitled to immunity from further prosecution. Lucas v. State, 130 Miss. 8, 93 So. 437, cited.

HON. J D. FATHEREE, Judge.

APPEAL from circuit court of Wayne county HON. J. D. FATHEREE Judge.

Albert Evans was convicted of unlawfully possessing intoxicating liquor, and he appeals. Reversed, and defendant discharged.

Judgment reversed and appellant discharged.

A. G. Busby, of Waynesboro, for appellant.

The appellant was entitled to immunity from prosecution for the offense of unlawful possession of liquor where he testified to the facts concerning said liquor before the grand jury at the instance of the state, before he was tried for said offense.

Wall v. State, 62 So. 417; Griffin v. State, 90 So. 81; Lucas v. State, 93 So. 437; Hosey v. State, 100 So. 577; Ryan v. State, 101 So. 381; Triplett v. State, 101 So. 501; Sudduth v. State, 101 So. 711; State v. White, 105 So. 500; Thorton v. State, 108 So. 709.

Geo. T. Mitchell, Attorney-General, and Forrest B. Jackson, Assistant Attorney-General, for the state.

The sole contention of appellant is that there should have been an arrest of the judgment in the lower court by reason of the fact that the defendant, appellant here, was immune from prosecution, and it appears that I am constrained to confess error in this record, and that I reluctantly must recommend that the appellant be discharged.

Lucas v. State, 130 Miss. 8, 93 So. 437; Harvey v. State, 136 Miss. 5, 100 So. 577; Section 2260, Hemingway's Code 1927, Section 2106, Hemingway's Code 1917, Section 1792, Code of 1906.

OPINION

Ethridge, P. J.

On August 23, 1929, Albert Evans was convicted in a justice of the peace court in Wayne county of the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of two hundred dollars and to serve a term of sixty days in the jail. He prosecuted an appeal to the circuit court, and at the January, 1930, term of the circuit court he was again convicted after a trial de novo and the same sentence imposed as in the justice of the peace court.

Prior to the trial in the circuit court, and after his conviction in the justice court, Albert Evans was summoned before the grand jury and testified as a witness there, disclosing facts to the grand jury about which he was indicted, and he claimed immunity from further prosecution because thereof. The court overruled his claim for immunity, and proceeded with the trial, and, when the evidence was finished, both the state and the defendant refused to request instructions in the case, and the jury was sent out to find the verdict without instructions. While the jury was out, and before they returned, the defendant requested a peremptory instruction on the ground of immunity; the instruction being one to find the defendant not guilty. There is an agreed statement of facts as to the testimony before the grand jury which shows that the defendant testified concerning the transaction about which he was tried.

The statute relied on for immunity is section 2260, Hemingway's Code 1927, section 1792, Code of 1906, reading as follows:

"No...