Lay v. State, 48425

• Decision Date: 14 April 1975
• Docket Number: No. 48425,48425
• Citation: 310 So.2d 908
• Parties: John LAY, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 908

310 So.2d 908

John LAY, Jr. v. STATE of Mississippi.

No. 48425.

Supreme Court of Mississippi.

April 14, 1975.

W. S. Moore, Thomas J. Ginger, Julie Ann Epps, Jackson, for appellant.

A. F. Summer, Atty. Gen. by Pete Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before GILLESPIE, ROBERTSON and SUGG, JJ.

SUGG, Justice:

John Lay, Jr., was convicted in the Circuit Court of the First Judicial District of Hinds County for the unlawful sale of heroin and was sentenced to serve a term of sixty years in the Mississippi State Penitentiary.

Lay sold one pound of heroin to a federal narcotics agent for $10,000. He was arrested at the place of the sale only seconds after the transaction was completed, and the $10,000 was recovered from Lay's possession. No evidence was introduced by the defendant, and his guilt was shown beyond any reasonable doubt. The weight and sufficiency of the evidence is not contested on this appeal.

Lay was sentenced under Mississippi Code Annotated section 41-29-147 (Supp.1974) which provides:

Any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.

For purposes of this section, an offense is considered a second or subsequent offense, if, prior to this conviction of the offense, the offender has at any time been convicted under this article or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs.

The first error assigned and argued is that the indictment failed to allege previous convictions with the particularity required by our decisions. The indictment charged that John Lay, Jr. '. . . did willfully, knowingly, unlawfully and feloniously sell, barter and transfer a controlled substance without authority of law, to-wit: Heroin, and that said John Lay, Jr. has previously been convicted in New Orleans, Louisiana on May 20, 1969 and July 15, 1969 for violation of the Uniform Controlled Substance Act of 1972, as amended. . . .'

Our decisions construing statutes authorizing enhanced punishment for second or subsequent offences permit trial on the principal charge and the charge of previous convictions in a single proceeding, although the issues involved are essentially independent of each other. Under our practice, if enhanced punishment is sought, the indictment or affidavit must include both the principal charge and a charge of previous convictions and both charges proved before punishment may be enhanced. Watson v. State, 291 So.2d 741 (Miss.1974); Burnett v. State, 285 So.2d 783 (Miss.1973); Ladnier v. State, 273 So.2d 169 (Miss.1973); McGowan v. State, 269 So.2d 645 (Miss.1972); and Branning v. State, 224 So.2d 579 (Miss.1969).

In a case involving Tennessee statutes on habitual offenders, the United States Supreme Court in Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954), approved the practice of presenting both charges to a jury in a single proceeding; however, the court pointed out that a jury may find a defendant guilty on the principal charge and not guilty of previous convictions. Following such a finding by the jury, enhanced punishment could not then be inflicted on the principal charge.

Some states do not permit a defendant to be charged with the principal charge and previous convictions in the same indictment. The rationale of these cases is that evidence of previous convictions has no relevancy on the question of guilt or innocence on the principal charge, but only serves to prejudice the defendant.

In other jurisdictions previous convictions must be alleged in the indictment along with the principal charge. The reason stated is that the defendant is entitled to have the question of his previous convictions, and his identity as being the one previously convicted, tried by a jury, and to know, at the outset, enhanced punishment is being sought by the prosecution. These jurisdictions told that, in order to secure a fair trial to the prisoner, the part of the indictment charging him with previous convictions must not be read by the jury. The prisoner is arraigned on the entire indictment but tried on the principal charge first. If convicted of the principal charge, then the issue of previous conviction is submitted to the jury.

The matter of enhanced punishment is dealt with in other ways by some courts, but we have consistently followed the procedure of trying a defendant on both the principal charge and previous convictions in a single stage proceeding.

In Watson v. State, supra, we held that when a previous conviction for a felony under the laws of this state, any other state, or of the United States is used to enhance the punishment of one convicted for the unlawful possession of a deadly weapon, the indictment must allege with particularity the state or federal jurisdiction of the previous felony conviction, the date of judgment and the nature or description of the offense constituting the previous felony. These principles are applicable to the case at bar since previous convictions of the defendant were used to enhance his punishment.

The language of the indictment in this case did not supply the particularity required in Watson. The indictment failed to set forth in the jurisdiction in which the previous convictions were obtained and the nature or description of the offenses constituting the previous convictions. These defects in the indictment were not waived even though Lay failed to demur to the indictment before trial. Watson, supra. The trial court erred when it inflicted enhanced punishment on Lay as a second offender under Mississippi Code Annotated section 41-29-147 (Supp.1974) because the indictment was defective in its attempt to charge Lay with previous convictions; therefore, the sentence imposed was in excess of that permitted to be inflicted on a first offender under section 41-29-139(c)(1). However, the indictment was sufficient on the principal charge that Lay The second assignment of error argued by Lay is as follows:

unlawfully and feloniously sold heroin, a controlled substance.

PROPOSITION II

Most of the testimony and exhibits introduced by the state to prove that the defendant had previously been convicted of drug-related offenses-justifying a greater sentence under Miss.Code Ann. Section 41-29-147 (Supp.1974)-was irrelevant and prejudicial, and should not have been admitted.

One of Lay's arguments under this assignment of error is that evidence other than the fact of conviction is inadmissible. He draws the analogy from decisions based on Mississippi Code Annotated sections 13-1-11 & 13 (1972) that the introduction of any evidence to impeach a witness except the fact of conviction is error and cites in support thereof Benedetti v. State, 249 So.2d 671 (Miss.1971) in which we held the details of offenses for which a defendant was convicted cannot be given. He also cites Murray v. State, 266 So.2d 139 (Miss.1972), cert. denied 411 U.S. 907, 93 S.Ct. 1534, 36 L.Ed.2d 196 (1973), as authority for the proposition that the jury cannot be informed of the punishment given for previous convictions. Lay urges that the rule should not be confined to cases where previous convictions are introduced for impeachment of a witness, but should also apply to cases where proof of previous convictions is required for infliction of enhanced punishment.

We are not persuaded by this argument because under our decisions, when enhanced punishment is sought, previous convictions must be alleged with particularity and, as stated in Watson, supra, the indictment must include the nature or description of the offense constituting the previous offenses.

Proper consideration of Lay's other arguments under this assignment of error requires a review of some of the evidence and his objections thereto.

The State introduced a copy of a bill of information filed in the Criminal District Court of Orleans Parish, Louisiana, April 7, 1969 charging James Lay, Jr. and Gwendolyn McMillain Lay with possession of marijuana, and a bill of information filed May 26, 1969 in the same court charging James J. Lay, Jr. and two other persons with possession of marijuana. The bills of information show that on January 30, 1970 Lay's plea of not guilty was charged to a plea of guilty of attempt to possess narcotics. When the first bill of information was offered in evidence the following objection was made:

Your Honor, the defendant objects on the grounds that it is not relevant to this trial in any way. It pertains to flammatory matters ended which have nothing to do whatsoever with this court record.

When the second bill of information was offered in evidence the objection was renewed.

The bills of information were duly authenticated as required by Acts of Congress. No point is made that the previous convictions were shown in the manner described above rather than by a certified copy of the judgment of the Criminal District Court of Orleans Parish.

The indictment in this case is against John Lay, Jr. In order to prove that John Lay, Jr. was the same person as James Lay, Jr. and James J. Lay, Jr., the persons named in the bills of information in Orleans Parish, the State introduced the original arrest records from the New Orleans Police Department on the occasion of Lay's arrest on each charge in Louisiana. The arrest records were related to the bills of information to show that the person arrested was the same person who entered a plea of guilty to the bills of information. The Louisiana arrest records contained fingerprints of the person there arrested. A comparison of these fingerprints with the fingerprints of Lay taken when he was arrested on the Mississippi charge of sale of heroin show that Lay was the defendant in both Louisiana cases. When the first arrest record was offered in evidence the following objection...