Norris v. State

• Decision Date: 13 May 1929
• Docket Number: 27859
• Citation: Norris v. State, 122 So. 391, 154 Miss. 190 (Miss. 1929)
• Court: Mississippi Supreme Court
• Parties: NORRIS v. STATE

122 So. 391

154 Miss. 190

NORRIS v. STATE

No. 27859

Supreme Court of Mississippi

May 13, 1929

Division A

1. CRIMINAL LAW. Failure to require state to elect between counts charging manufacturing liquor and possessing still held harmless, where instructions related solely to count charging manufacturing liquor.

Refusal to require state to elect on which count of indictment it would ask for verdict, where indictment charged manufacturing liquor and possessing still, if error, held harmless, where all instructions were pointed solely at count for manufacturing liquor and therefore verdict must, be held to have been in response thereto and not to embrace the other count in indictment.

2. CRIMINAL LAW. Evidence to identify accused as person committing offense is admissible, though proving him guilty of independent crime.

Where commission of crime is proved and identity of person who committed it is in dispute, evidence to identify accused as person who committed crime is not inadmissible solely because it proves or tends to prove that he was guilty of another and independent crime.

3. CRIMINAL LAW. If evidence regarding defendant's presence at still on other occasions was inadmissible when admitted error was cured when defendant's evidence of alibi was admitted.

In prosecution for manufacturing liquor and possessing still, if evidence regarding defendant's presence at still on other occasions was inadmissible when offered to identify defendant, error, if any, in admitting it, was cured when defendant's evidence of an alibi was admitted.

Suggestion of Error Overruled June 10, 1929.

APPEAL from circuit court of Clarke county.

HON. J D. FATHEREE, Judge.

Elam Norris was convicted of manufacturing liquor, and he appeals. Affirmed.

Affirmed.

H. F. Case, of Quitman, and Chas. B. Cameron, of Meridian, for appellant.

Assignment No. 1 brings under review the error of the lower court in permitting the state under an indictment in two counts charging the unlawful manufacture of intoxicating liquor, and having still in possession, to give in evidence over the objection of the appellant proof of other offense.

Parkinson v. State, reported in 110 So. 513; Lowe v. State, 127 Miss. 340, 90 So. 78; Cage v. State, 105 Miss. 326, 62 So. 358; Collins v. State, 99 Miss. 52, 54 So. 666; Cook v. State, 81 Miss. 146, 32 So. 312; Smothers v. City of Jackson, 92 Miss. 327, 45 So. 982; King v. State, 66 Miss. 502, 6 So. 188.

We understand the law to be that where two felonies are charged in the indictment in separate counts, and where the two felonies differ materially, both in their elements and their punishments, that the court below should have either sustained a demurrer to the indictment, if offered in whole or to one count, or have compelled the state to elect on which count the appellant would be tried.

This rule has been announced in the case of McEwen v. State, reported in 96 So. at page 690, and this case cites the case of State v. Rees, 76 Miss. 435, 22 So. 829.

Broom & Gober, of Jackson, for appellant.

"Statutory offenses defined by different statutes consisting of different acts or omissions and subject to different penalties for their violation cannot be joined in one indictment." 31 C. J. 783.

The general rule is that the issue on a criminal trial must be single, and that the testimony must be confined to the issue, and that on trial of a person for one offense the prosecution cannot aid the proof against him, by showing that he committed other offenses." King v. State, 66 Miss. 502, 6 So. 189.

Whart. Crim. Ev. 194; list Bishop Criminal Procedure, sections 1120-24.

In the case of Lowe v. State, 127 Miss. 340, 90 So. 78, the court held that section 2252 of Hemingway's Code 1927, must be strictly construed and applied only to the sale of intoxicating liquor. In this case the court cited Page v. State, 105 Miss. 536, 62 So. 360; Collins v. State, 99 Miss. 52, 54 So. 666; Cook v. State, 81 Miss. 146, 32 So. 312; Smothers v. Jackson, 92 Miss. 327, 45 So. 892; Kerney v. State, 68 Miss. 332, 8 So. 292.

Parkinson v. State, 110 So. 513.

James W. Cassedy, Jr., Assistant Attorney-General, for the state, appellee.

It is argued by counsel for appellant that it was error to indict the appellant on two distinct and separate felonies, even in two counts. In answer to this, I direct the court's attention that there is no demurrer to this indictment, and that there was no motion to quash made. In the absence of either of these pleadings, this argument cannot avail in this court.

It is next argued that the court erred in failing to require the state to elect on which count in the indictment that it would proceed upon.

As shown by the record of the testimony taken, the state had elected to proceed upon the charge of manufacturing intoxicating liquor.

It is argued by counsel for appellant that in view of the fact that there was either no evidence, or no sufficient evidence to support a conviction of the possession of a still, as charged in the second count of the indictment, that the peremptory instruction which was requested, as shown by page 126, should have been granted, in so far as the possession of the still was concerned. It is argued that the refusal of this instruction was especially erroneous, because of the fact that a general verdict of guilty as charged was returned by the jury, which it is argued is in effect a verdict of guilty of the possession of a still and of the manufacture of intoxicating liquor.

In the cases of Jones v. State, 67 Miss. 111, and Cannon v. State, 75 Miss. 364, this court discussed the question here involved.

In the case at bar, there is no question, but that the appellant was tried for the manufacture of intoxicating liquor, and that the second count, which charged him with the possession of the still, was not referred to and a conviction was not asked on that charge. These two charges relate to different crimes but which are not in their nature separate crimes for, as in this case, the appellant could have been in possession of the still and engaged in the manufacture of intoxicating liquor at one and the same time. It is also apparent that where these conditions exist and where the punishments for both crimes are the same, that a general verdict of guilty is not error, and only tends to show that if the verdict is broader than a finding of guilty as to the manufacture of intoxicating liquor, that it also includes a verdict of guilty as to the possession of the still. However, the appellant was not sentenced for the...