Maxie v. State

• Decision Date: 22 October 1923
• Docket Number: 23474
• Citation: 97 So. 560,133 Miss. 243
• Court: Mississippi Supreme Court
• Parties: MAXIE v. STATE

97 So. 560

133 Miss. 243

MAXIE v. STATE

No. 23474

Supreme Court of Mississippi

October 22, 1923

Division A

(Division A.) January 1, 1920

WITNESSES. When accused entitled to immunity in prosecution for unlawful sale of intoxicating liquors stated.

In order for a person to be immune from prosecution under the provisions of section 1792, Code of 1906 (Hemingway's Code, section 2106), for or on account of any transaction matter, or thing concerning which he may have testified before a grand jury or any court, his testimony, because of which the immunity is claimed, must have been given in a cause or proceeding based on or growing out of the violation of one of the sections, or amendments thereof, of chapter 40 Code of 1906 (chapter 38, Hemingway's Code), which sections cover the manufacture, sale, possession, etc., of intoxicating liquors.

HON. C C. MILLER, Judge.

APPEAL from circuit court of Lauderdale county, HON. C. C. MILLER, Judge.

Jim Maxie was convicted of unlawful manufacture of intoxicating liquor, and he appeals. Affirmed.

Affirmed.

H. A. Shotts, for appellant.

The appellant was tried and convicted at the February 1923, term of the circuit court of Lauderdale county and sentenced to one year in the state penitentiary for distilling. On the trial of this case, before announcing "ready," appellant filed a plea to immunity from prosecution in this case. Appellant also offered testimony of witnesses to prove his immunity, which was objected to by the state and sustained by the court, and then and there excepted to by appellant. After all the evidence was in, that the court would allow to go in, appellant moved the court to discharge him and set him at liberty on account of his immunity under section 1792, Code of 1906, same being overruled by the court and excepted to by appellant.

The paramount question in this case is the fact that appellant was used by the state and that he testified of and concerning this case as witness for the state, that by said testimony given for the state, he purchased his immunity from prosecution as made and provided in section 1792, Code of 1906. If this immunity statute does not apply to appellant's case, why not? The case in which he testified grew out of the illicit manufacture of intoxicating liquor, and appellant's attorney advised him to go ahead and testify for the state for the reason it was compulsory under the law, but that his reward for that was his immunity from further prosecution. There was a cold-blooded and deliberate murder committed at the said whisky still, and the punishment of the guilty murderer was of far and much more importance than punishing those guilty of distilling, and the state of Mississippi needed appellant's testimony and I feel sure the state of Mississippi will stand by its immunity law in this case, in which course such action is upheld in State v. Bramlett, 47 So. 433; Griffin v. State, 90 So. 81; Lucas v. State, 93 So. 437; Fuller v. State, 85 Miss. 199.

The district attorney's remarks to the jury in his closing argument were in the following words: "That, yes J. P. Owen had fallen on the firing line while performing his duty, and Buchanan, who testified from that stand has the hot lead of the moonshiners in him now. " And the courts reply to appellant's counsel, when objection was made, that he could take care of that by a special bill of exceptions, was highly prejudicial to appellant, and no doubt inflamed the minds of the jury against appellant. Sykes v. State, 89 Miss. 766, 42 So. 875; Collins v. State, 100 Miss. 435, 56 So. 527; Moseley v. State, 112 Miss. 854, 73 So. 791; Clark v. State, 102 Miss. 768, 59 So. 887; Kelly v. State, 113 Miss. 850, 74 So. 679.

The court refused defendant the following instruction: "The court instructs the jury for the defendants that if there is on the whole testimony in this case a belief in the probability of defendant's innocence existing in the minds of the jury, then there is a reasonable doubt of his guilt and the jury should acquit him." This instruction was upheld in Nelms v. State, 58 Miss. 362; Jackson v. State, 66 Miss. 89, 5 So. 690.

S. C. Broom, Assistant Attorney-General, for the state.

At the preliminary trial of the prohibition officers charged with the murder of a negro, killed during the raid, this appellant was called as a witness for the state, and he now claims immunity from prosecution under section 1792, Code of 1906. This case will stand or fall upon two propositions. (1) Is he entitled to immunity as provided for in section 1792, Code of 1906, and (2) is the language of the district attorney as shown by special bill of exceptions such an improper appeal as to constitute reversible error.

In the case of Lucas v. State, 93 So. 437, is laid down the rule which has governed in considering whether or not one is entitled to immunity under section 1792, Code of 1906. The facts in this case do not bring it within that rule. It is proper to note that even though the appellant herein did, as a matter of fact, on that occasion give some testimony with reference to the still as a necessary preamble...