May v. State

• Citation: 209 Miss. 579,47 So.2d 887
• Decision Date: 09 October 1950
• Docket Number: No. 37643,37643
• Parties: MAY v. STATE.
• Court: United States State Supreme Court of Mississippi

Page 887

47 So.2d 887

209 Miss. 579

MAY v. STATE.

No. 37643.

Supreme Court of Mississippi, Division A.

Oct. 9, 1950.

Martin & Farr, Prentiss, for appellant.

John W. Kyle, Atty. Gen., Geo. H. Ethridge, Asst. Atty. Gen., for appellee.

HOLMES, Commissioner.

Appellant was convicted in a justice of the peace court of Jefferson Davis County on an affidavit charging that he did 'unlawfully and wilfully sell intoxicating beverage, to-wit, beer, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi'. He appealed to the circuit court where he was again convicted, and from this latter conviction he prosecutes this appeal.

Numerous grounds are assigned for the reversal of the judgment of conviction, but in view of our conclusion we consider only the contention of appellant that the affidavit charges no offense and is therefore insufficient to support the conviction.

It is the constitutional right of the accused to be informed of the nature and cause of the accusation against him; hence he is entitled to a plain statement of the charge against him. It is fundamental that the affidavit must set forth the essential elements of the offense sought to be charged. If the facts alleged do not constitute such an offense within the terms and meaning of the law or laws on which the accusation is based, or if the facts alleged may all be true and yet constitute no offense, the affidavit is insufficient. 27 Am.Jur., page 621.

Chapter 171 of the Laws of 1934, as amended by Chapter 224 of the Laws of 1942, Section 10207 et seq., Code of 1942, legalizes the sale of beer of an alcoholic content not exceeding four per cent by weight, unless, as the result of an election duly and lawfully held for such purpose, the sale of beer is not permitted in the county in which the sale is alleged to have been made. The appellant may have sold beer of an alcoholic content not exceeding four per cent by weight, and yet he was guilty of no offense unless, as a result of an election duly and lawfully held for such purpose, the sale of beer was not permitted in the county alleged. Therefore, the facts alleged in the affidavit may all be true, and yet the appellant be guilty of no offense. It was essential to the sufficiency of the affidavit that it allege not only the sale of beer, but that as a result of an election duly and lawfully held for such purpose, beer was not permitted to be sold in the county in...