Gordon v. State.

• Decision Date: 01 January 1920
• Docket Number: 22095
• Citation: 127 Miss. 396,90 So. 75
• Court: Mississippi Supreme Court
• Parties: Gordon v. State.

90 So. 75

127 Miss. 396

Gordon v. State.

No. 22095

Supreme Court of Mississippi

January 1, 1920

1. CRIMINAL LAW. Indictment and information. Passing of indictment to files is not an acquittal, and indictment may be reinstated.

Passing an indictment to the files is in no sense an acquittal of the charge, and is not a bar to further prosecution of the indictment, and, with the consent of the court, an indictment which has been passed to the files may be withdrawn and reinstated for trial at any future term of the court.

2. CRIMINAL LAW. Conviction for unlawful possession does not bar prosecution for manufacturing.

A conviction for unlawfully possessing intoxicating liquors does not bar a second prosecution of the defendant for feloniously making or distilling the same liquor.

HON. R S. HALL, Judge.

Charley Gordon was convicted of manufacturing intoxicating liquor and he appeals. Affirmed.

Davis &amp Hill, for appellant. H. C. Holden, attorney-general for the state.

COOK J., delivered the opinion of the court.

Appellant was convicted of manufacturing intoxicating liquor, and sentenced to the penitentiary for a period of three years, and from this conviction and sentence prosecutes this appeal.

At the November, 1920, term of the circuit court of Forrest county there were two charges pending against appellant, one for unlawfully and feloniously making intoxicating liquor, which had been preferred by indictment returned by the grand jury at that term, and one for unlawfully having intoxicating liquor in his possession, which last charge had been preferred by affidavit before a justice of the peace, and which was in the circuit court by appeal from a conviction in the justice court. When these cases were called in the circuit court, the defendant entered a plea of guilty to the misdemeanor. The felony charge was thereupon passed to the files by the district attorney, and the defendant, having paid the fine and costs imposed in the case in which he had entered a plea of guilty, was discharged.

At the April, 1921, term of the court, the district attorney filed a motion to withdraw from the files the indictment for making intoxicating liquors and to redocket the same for trial. This motion was sustained, and defendant was put to trial on this indictment and convicted. Before the jury was impaneled, the defendant interposed two pleas of former jeopardy, one setting up that he had entered a plea of guilty to the charge of unlawfully having whisky in his possession under an agreement with the district attorney that the indictment upon which he was then arraigned would be passed to the files; that said indictment had been previously passed to the files, and that this constituted an acquittal of the charge; the other plea setting up autrefois convict, in that both charges grew out of the same transaction and were predicated upon the same facts. Demurrers were interposed and sustained to each of these pleas.

The argument in support of the first plea proceeds upon a total misconception of the effect of passing an indictment to the files. The district attorney may be willing to pass an indictment to the files pending good behavior, or for other cause, when he would be unwilling to recommend a nolle prosequi, and it often happens that a defendant is willing to accept this arrangement as the best settlement available. It may be that the passage of an indictment to the files is usually the end of the matter, but it is in no sense an acquittal of the...