Neely v. State

• Decision Date: 06 November 1911
• Citation: 56 So. 377,100 Miss. 211
• Court: Mississippi Supreme Court
• Parties: ANDERSON NEELY v. STATE

56 So. 377

100 Miss. 211

ANDERSON NEELY v. STATE

Supreme Court of Mississippi

November 6, 1911

October 1911

APPEAL from the circuit court of Yalobusha county. HON. N. A TAYLOR, Judge.

Anderson Neely was convicted of unlawful retailing and appeals.

The facts are fully stated in the opinion of the court.

Case reversed and affidavit dismissed.

Creekmore & Stone, for appellant.

Really the only question to be decided on this appeal is whether or not witnesses can go before a grand jury, and secure an indictment against a defendant for selling liquor, and then while this indictment is pending, go before a magistrate and make an affidavit out against the same defendant for selling liquor, six months prior to the return of the indictment, and secure a conviction on this affidavit. This is a case of this sort. The affidavit in this case was gotten out in August 1910, and the date fixed by the witnesses as the date of the offense, February, 1910. That before this affidavit was gotten out, that is July, 1910, these same witnesses had gone before the grand jury, and secured an indictment against this defendant for selling whiskey, which indictment is still pending against him. The witnesses swear that they told the grand jury all about the case covered by this affidavit. Our contention is simply this, that at the time the affidavit in the case at bar was filed, that Anderson Neely, the defendant, was being held to answer this same charge under an indictment of this district. That is, that the real effect of the affidavit in the case at bar was to oust the jurisdiction of the circuit court. We attempted on the trial to introduce this indictment. See the testimony of Doss E. Parks, and, also, to prove that identity of the Anderson Neely mentioned in the affidavit and in the indictment, but this was all excluded by the court. We rest entirely on this defense. We do not deny that the testimony makes out a violation of the whiskey law, but our client is being held to answer the same under an indictment which antedates the affidavit in the case at bar, and we resist this effort of the justice of the peace to oust the jurisdiction of the circuit court of the second district of Yalobusha county, and at the same time not dispose of the same indictment in the said circuit court. We consider the citation of authority unnecessary, and ask for a reversal of this case and also ask that the order of reversal direct a discharge of the defendant.

Jas. R. McDowell, assistant attorney-general, for appellee.

This is an appeal from conviction for retailing. The appellant was convicted before a justice of the peace on an affidavit sworn out against him in September, 1910, for an offense alleged to have been committed on February 14, 1910. At the August term of the circuit court, 1910, an indictment was returned against the defendant, charging him with retailing, the date laid in the indictment being August 1, 1910. The defendant has never gone to trial on the indictment in the circuit court. He was convicted on the affidavit in the justice court and appealed to the circuit court at the January term, 1911. He was again convicted on the affidavit. On the trial, he attempted to introduce the indictment found against him at the August term of the circuit court as a defense, it being his contention that while this indictment was pending, no affidavit could be filed before a justice of the peace.

Counsel's contention must fail for several reasons. In the first place, there is nothing to show that the offenses are identical; in fact, the date laid in the affidavit is February 1, 1910, while the date laid in the indictment is August 1, 1910. The defendant now being convicted under the affidavit could not be prosecuted for retailing if the offense occurred prior to February 1, 1910, the date laid in the affidavit. See section 1762 of the Code of 1906. But he could be prosecuted under the indictment for any sale made between February 1, 1910 and August 1, 1910. If it develops on the trial under the indictment that the sales testified to by witnesses occurred prior to February 1, 1910, the defendant can then plead former conviction and set up the judgment in the instant case; but if the witnesses testified to a sale between February 1st, and August 1st, no such defense could be set up.

In the next place, at the time of the trial in the circuit court under the affidavit, defendant had never been convicted under the indictment. It was still pending. If he was ever tried under the indictment and it develops that the offense there testified to is the same as the one under which he is convicted, he can plead former conviction. The contention of counsel must, therefore, fail, as it is without foundation under our law.

Argued orally by W. I. Stone, for appellant, and J. R. McDowell, assistant attorney-general, for the state.

MAYES, C. J. MCLEAN, J.

OPINION

MAYES, C. J.

The record shows that appellant was indicted generally for unlawful retailing at the August term, 1910, of the circuit court of Yalobusha county. The offense charged in the indictment is alleged to have been committed on the 1st day of August of that year, and it also appears that appellant was arrested under this indictment. The appellant was not placed on trial under the indictment at the August term of the circuit court, and has not been tried under the indictment, though the indictment is still pending in the circuit court of the county. After the finding of this indictment in the circuit court, and while it was pending in that court, one E. H. Rogers, marshal, made an affidavit on the 26th day of September, 1910, charging that appellant sold intoxicating liquors on the 1st day of February, 1910. The affidavit was made before one Wood, a justice of the peace of the county, and appellant was arrested on this affidavit tried and convicted in the justice of the peace court. He appealed from his conviction to the circuit court, and was there again tried and convicted, from which conviction he prosecutes an appeal to this court. On the trial of the case in the circuit court the appellant attempted to show that he was under indictment in that court for unlawful retailing alleged to have taken place on the 1st of August, 1910, and that no trial under the indictment had yet been had. The appellant offered further testimony to show that he was the same person named in the indictment, and that the charge in the indictment was the same as that named in the affidavit. Let the fact be emphasized that the circuit court indictment was on August 1, 1910, and that appellant was arrested under same. Let it further be emphasized that the affidavit was made after the...