Howard v. State

• Decision Date: 11 January 1904
• Citation: 83 Miss. 378,35 So. 653
• Court: Mississippi Supreme Court
• Parties: JAMES HOWARD ET AL. v. STATE OF MISSISSIPPI

35 So. 653

83 Miss. 378

JAMES HOWARD ET AL. v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 11, 1904

October 1903

FROM the circuit court of Lafayette county. HON. PERRIN H. LOWREY Judge.

Howard and eighteen others, appellants, were indicted, tried and convicted of gambling and appealed to the supreme court.

The appellants were jointly indicted by the grand jury for gambling. The indictment, leaving off the formal parts alleges that the parties indicted "on the first day of February, 1902, in said county, did unlawfully play at a certain game and games of dice commonly called 'craps' for money." A demurrer was interposed to this indictment on the ground that it joins charges for separate and distinct offenses against separate individuals thus denying each defendant his constitutional right to be informed of the nature and cause of the accusation against him. This demurrer was overruled. After the trial had proceeded for some length, defendants offered to file a plea of autrefois convict, but the court refused to permit them to do so.

Reversed and remanded.

Argued orally by W. V. Sullivan, for appellants, and by J.

N. Flowers, assistant attorney general, for appellee.

OPINION

WHITFIELD, C. J.

We think it clear that there was a motion made to compel the district attorney to elect as to which offenses and against what parties he would proceed. The failure of the court to do this is also made one of the grounds of the motion for a new trial. It is also clear that some of the defendants offered to file proper pleas of former conviction. This the court refused to allow to be done. It is true that this action of the court is not made the ground of the motion for a new trial, but, as the cause must be reversed, it is proper to say that the court ought to have allowed the pleas to have been filed.

The instruction marked 4 1-2 for the defendants is as follows: "The court charges the jury that in determining the interest a witness has in the case they are at liberty to consider the fact, if the proof shows it, that such witness is under indictment for gambling, and that, if he testifies in behalf of the state, he is thereby discharged from liability to fine or punishment on account of such violation of the law. The jury has the right to look to this fact, if shown by the testimony, in determining what weight, if any, they will give to his testimony." This instruction the court refused to give. In view of the provisions of § 1432 of the code of 1892 and of the testimony in the case, the refusal of this charge was fatal error. That section is as follows: "Every witness, when summoned, shall appear and give evidence of all offenses against the provisions of law as to gambling or gaming of which he shall have any knowledge; and a witness, so summoned and giving evidence without procurement or contrivance on his part, shall be thereafter exempt from criminal prosecution for such offense in relation to which he shall have so testified in good faith."

The testimony shows that some of these witnesses were codefendants in this same indictment, and that they testified in good faith for the state in reference to the very offenses embraced in this indictment. There are two conditions of immunity provided by said section: First, that such witnesses must have been summoned by the state, and must have given evidence without procurement or contrivance on their part and in good faith; second, their exemption is exemption from prosecution for the very offense in relation to which they shall have so testified. But this immunity is a matter between them and the state. It is not necessary that the charge for the other defendants shall set out the conditions of this immunity. It is enough for the charge in this respect to state that they had obtained such immunity, and this the charge does.

But there is a more serious error still to be noted. Section 1431 of the code of 1892 provides: "On the trial of all indictments for gambling or gaming, the state shall not be confined in the proof to a single violation, but under the indictment charging a single offense may give in evidence any one or more offenses of the same character committed anterior to the day laid in the indictment and not barred by the statute of limitations; but in such case, after conviction or acquittal on the merits, the accused shall not be again liable to prosecution for any offense of the same character committed anterior to the day laid in the indictment." Under this section it is proper for an indictment to charge any single defendant with the commission of "any one or more offenses of the same character" committed within the statutory period anterior to the day laid in the indictment; second, it is also competent under this statute for the indictment to charge any number of defendants with the joint commission of any one or more offenses of the same character as therein stated. But it is not competent, nor was it ever the purpose of the legislature, to permit under this statute an indictment to charge any number of separate and distinct individuals with the commission of separate and distinct offenses under the gambling law, wholly disconnected in time and place each from the other. If the opposite contention were sound, it would be proper for an indictment under this section to charge fifty men in each of the five supervisor's districts of a county--two hundred and fifty men in all--with the commission of ten thousand separate acts of gambling, although each and every act of gambling should be, as to time and place, wholly distinct from each and every other act of gambling. The law never contemplated any such boundless confusion, and the case of Lea v. State, 64 Miss. 294, 1 So. 244, and Strawhern v. State, 37 Miss. 422, properly understood, do not support such contention. It is to be especially noted that in neither one of these cases was there any demurrer to...