Norton v. State

• Decision Date: 12 March 1888
• Court: Mississippi Supreme Court
• Parties: J. H. NORTON v. THE STATE

3 So. 665

65 Miss. 297

J. H. NORTON v. THE STATE

Supreme Court of Mississippi

March 12, 1888

APPEAL from the Circuit Court of Copiah County, HON. T. J. WHARTON Judge.

The case is sufficiently stated in the opinion of the Court.

Judgment reversed and cause remanded.

H. C Conn, for the appellant.

1. The omission in the indictment before us is an allegation that an election was held, etc. If this statute unconditionally prohibited the sale, this indictment would be free from objection; but it only prohibits after an election has been held. The election and its results are facts entering into and forming the very basis on which the prosecution must proceed. Under the license law, it has always been held that the indictment must contain an allegation to negative that the sale was under a license. Here the indictment has omitted a fact as important and as necessary, and is a nullity. The Local Option Act abrogated all other laws on this subject and the prosecution must conform to this law. A prosecution under any other law will not uphold a sentence under this, as the punishment is different. 1st Bishop on Criminal Procedure, sec. 135.

2. A new trial should be granted because the State failed to prove that an election had been held in Copiah under the Local Option law and its result. The defendant did show on the motion for a new trial that such election had been held by introducing the record in the other case where the proof was made which showed that by such election all other laws in reference to the sale of liquors was repealed. An election is not a thing of which the court can take judicial cognizance, particularly one which may or may not be held at the option of the people and at any time they may choose. The act itself provides for the manner of proving this. See Section 4, p. 39, Laws 1886.

3. A new trial should be granted because the record fails anywhere before the verdict or motion for a new trial to show whether this is the first, second or third or other offence. Each of these have a different penalty attached and are to that extent different crimes.

I contend that a former conviction should have been alleged and proven, so that the defendant could be advised of the grade of the offence for which he was being tried. Besides, the court had no guide by which to fix the penalty without going outside of the record, and even after going outside of the record, the court erred by pronouncing the wrong sentence. The sentence is for a second offence, while the evidence on motion for new trial shows it to have been the first. The courts have construed a second offence to be one committed after a conviction for the first, not merely after it is committed. Bishop on Statutory Crimes, Section 240, last paragraph.

T. M. Miller, Attorney-General, for the State.

This was a conviction for the second offence of selling whiskey in Copiah county contrary to the provisions of the Local Option Act of 1886. It seems to be settled that in an indictment for the second or subsequent sale, where the penalty is increased, the former offence must be alleged. I therefore submit to the court whether or not the judgment of the lower court should not be simply reduced to the sentence for the first offence.

OPINION

ARNOLD, J.

Appellant was indicted and convicted of selling whiskey. The indictment charges that the sale was made "without any authority so to do, contrary to the form of the statute," etc. The general laws of the State prohibit all sales of vinous or spirituous liquor without license. The local option act, when put in force, abolishes the license system and makes all sales of alcoholic, vinous, spirituous or intoxicating liquor unlawful, with the exception or proviso that licensed druggists may sell or furnish pure alcohol for medicinal, scientific or mechanical purposes. The local option act prescribes...