McInnis v. State

• Decision Date: 20 June 1910
• Docket Number: 14350
• Citation: 97 Miss. 280,52 So. 634
• Court: Mississippi Supreme Court
• Parties: DANIEL C. MCINNIS v. STATE OF MISSISSIPPI

52 So. 634

97 Miss. 280

DANIEL C. MCINNIS v. STATE OF MISSISSIPPI

No. 14350

Supreme Court of Mississippi

June 20, 1910

FROM the circuit court of Simpson county, HON. ROBERT L. BULLARD Judge.

McInnis appellant, was indicted and tried for and convicted of embezzlement, and appealed to the supreme court. The facts as stated by ANDERSON, J., were as follows:

At the May term, 1908, the appellant was indicted in two counts as follows:

First Count. "That D. C. McInnis on and from the first Monday of January, 1904, until the 6th day of January, 1908, was the legally qualified and acting sheriff and tax collector of Simpson county, Mississippi, and as said tax collector had and received, during the time intervening between the 1st day of October, 1907, and the 6th day of January, 1908, sixty-two thousand and seven hundred and twenty-nine and forty-six one hundredths dollars ($ 62,729.46), being moneys respectively of Simpson county and of the state; that the term of office of the said D. C. McInnis expired on the 6th day of January 1908, and that it then and there became his (the defendant's) duty to pay over to the county treasurer of Simpson county and to the state treasurer all moneys then and there being in his possession as tax collector aforesaid, as each the said county and state should be entitled thereto of said moneys; that on the said 6th day of January, 1908, Geo R. Edwards legally qualified and entered upon the duties of state treasurer of the state of Mississippi, and it then and there became and was the duty of the said D. C. McInnis to pay over to the said state treasurer all money in his (defendant's) possession belonging to the state, which said sum due the state should under the laws have been paid not later than the 16th day of January, 1908, said sum of money aggregating $ 20,155; but that defendant on said 16th day of January, 1908, and on divers days before and after said date, disregarding his duty to pay over and deliver said sum of $ 20,155 to said G. R. Edwards, state treasurer, did then and there in the county aforesaid willfully and fraudulently and feloniously defraud the state of the sum of approximately ten thousand dollars by willfully and feloniously omitting to comply with his duty to deliver and pay over, on the expiration of his term of office as said tax collector, to said G. R. Edwards, state treasurer, a portion of said money to the state which he had received as tax collector of Simpson county, Mississippi, and which remained in his hands on the 6th day of January, 1908, amounting to approximately ten thousand dollars."

Second Count. "And the grand jurors aforesaid upon their oaths aforesaid do further present and charge that D. C. McInnis being sheriff and tax collector of Simpson county, Mississippi, for the term of four years beginning the first Monday of January, 1904, and ending on the 6th day of January, 1908, during that time of said term intervening between the 1st day of October, 1907, and the said 6th day of January, 1908, received as tax collector aforesaid the sum of sixty-two thousand seven hundred twenty-nine and forty-six hundredths dollars ($ 62,729.46), of moneys belonging to said Simpson county and to said state aforesaid, and that on divers days between the dates last aforementioned in the county aforesaid did willfully, fraudulently, and feloniously embezzle and convert to his own use a portion of said sum of moneys intrusted to him and received into his hands as said tax collector, amounting to nine thousand three hundred ninety-nine dollars ($ 9,399), against the peace and dignity of the state of Mississippi."

At the May term, 1909, appellant, after some kind of arrangement with the state as to the punishment, first entered a plea of guilty as to both counts, withdrew it, and then pleaded guilty as to the first count of the indictment, and was sentenced to imprisonment in the county jail for one year and payment of costs, and the indictment ordered to the files of the court. In October, 1909, the judge ordered the indictment withdrawn from the files, redocketed, witnesses subpoenaed, and defendant (who was in jail serving the sentence theretofore imposed) rearrested, the case to stand for trial at the November term, 1909, which order was complied with, and a trial had on the second count of the indictment, resulting in a conviction and sentence of seven years in the penitentiary. Before going into the trial the appellant interposed a plea of autrefois convict, which, leaving off the indictment (copied into the plea), is as follows:

"Comes the said D. C. McInnis, in his own proper person, into court here, and, having heard the indictment read, says: That the state of Mississippi ought not further to prosecute the said indictment against him, the said D. C. McInnis, in respect to the offense in said indictment mentioned and purported to be charged, because he says that heretofore, to wit, on the 2d day of June, 1908, at a circuit court begun and holden in the town of Mendenhall, in the county of Simpson, state of Mississippi, the grand jurors selected, impaneled, and sworn in and for said county of Simpson, in the name and by the authority of the state of Mississippi, upon their oaths, presented an indictment against him, the said D. C. McInnis, which said indictment is in words and figures following, to wit: * * * To which indictment the said McInnis pleaded not guilty, and the said state of Mississippi joined issue on said plea. That afterward, to wit, on the day of May, 1909, in said circuit court, with full and complete jurisdiction to try said defendant on said charge, a jury was duly and regularly impaneled and sworn to try said issue joined as aforesaid, and the cause proceeded to trial, and several witnesses were offered by the counsel prosecuting for the state, who gave evidence to establish defendant's guilt of the charge contained in the said indictment hereinbefore set out, which is the same indictment upon which this defendant is now about to be put upon his trial, and that after several witnesses were examined for the state this defendant was advised by his attorneys that if he should withdraw his plea of not guilty theretofore entered and plead guilty to the first count to said indictment herein set out, that the other charges against this defendant should and would be passed to the files, and defendant would be sentenced by the court to serve a twelve-month term in the county jail of said county, and said defendant being so advised, and believing that such course would satisfy the state's prosecution against him on all the charges it held against him, he consented and withdrew his plea of not guilty, and entered a plea of guilty to the first count in said indictment, answering, in response to the court's inquiry if that was his plea, to wit: 'Yes, sir; under the conditions as I understand them.' Reference to the file of court papers in said cause and the minutes of the court in said proceeding is hereby made and prayed to be taken and considered in connection herewith as a part hereof, and, if proper or required, that a complete transcript of all the pleadings, proceedings, orders, and the stenographer's notes be filed and considered in connection herewith as a part hereof as if fully copied herein. That judgment of conviction of this defendant on said charge was accordingly entered on the minutes of said court, which said judgment still remains in full force and effect and is final, and this defendant is now serving his one-year term in the county jail of said county in satisfaction of said judgment and sentence.

"Said defendant further shows: That he, the said D. C. McInnis, is the same D. C. McInnis so indicted and convicted; that is, that he is one and the same person, and not another and different person. That the offense of which defendant was so convicted as aforesaid is the same offense as charged in the indictment upon which he is now being sought to be tried, and that every fact or question or issue material to the determination of the guilt or innocence of this defendant of the charge on which he was convicted is identical with the facts and questions and issues material to the determination of the charge for which he is now about to be put upon his trial, and the indictment, upon which this defendant was tried and convicted as aforesaid is the identical indictment upon which he is now being sought to be tried, and the said former and present prosecutions rest upon the facts adjudicated in the said former conviction. All of which matters and things, the said McInnis is ready to verify. Wherefore he prays the judgment of this court if the state of Mississippi ought further to prosecute the said indictment against him, the said D. C. McInnis, in respect of the said offense for which he has been duly and lawfully convicted, and for which his offense he is now paying the penalty with his liberty in the jail of said county; and he further prays that he may be dismissed and discharged from the said indictment, and from any further prosecution thereunder."

On motion this plea was stricken out as frivolous; the appellant moved to quash the indictment, offering proof to support such motion, which was denied by the court; then a demurrer to the indictment was filed, and stricken from the files; then motion for bill of particulars, which was overruled; then motion for change of venue, and evidence to support same which was denied; then the disqualification of the judge was suggested by appellant's attorneys, and thereupon he adjudged them in contempt of court, and struck the suggestion from the files; and then the witnesses were introduced and gave their testimony, and after being...