Page v. State

• Decision Date: 26 August 1992
• Docket Number: No. 90-IA-0270,90-IA-0270
• Citation: 607 So.2d 1163
• Parties: Randall D. PAGE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1163

607 So.2d 1163

Randall D. PAGE v. STATE of Mississippi.

No. 90-IA-0270.

Supreme Court of Mississippi.

Aug. 26, 1992.

William O. Townsend, Pearl, for appellant.

Michael C. Moore, Atty. Gen., John H. Emfinger, Sp. Ass't. Atty. Gen., Jackson, for appellee.

En Banc.

ROY NOBLE LEE, Chief Justice, for the Court:

Randall Page was indicted by the Rankin County Grand Jury and charged with the felony offense of driving under the influence of intoxicating liquor in violation of Miss.Code Ann. Sec. 63-11-30(1) and Sec. 63-11-30(2)(d), (Supp.1991) because he had been previously convicted upon four (4) separate charges of driving while under the influence of intoxicating liquor.

Page moved to strike the prior convictions and dismiss the indictment on the ground that the prior convictions were not properly set forth and charged in the indictment so as to trigger the felony offense provision of the Implied Consent Law.

A hearing was held, Honorable Alfred G. Nichols, presiding, and the court denied Page's motion, holding that the indictment was sufficient to charge Page as a felon. Pursuant to Page's petition, the lower court granted certification for interlocutory appeal on the question, pursuant to Miss.Sup.Ct. Rule 5. We granted the petition to consider the interlocutory appeal.

FACTS

Section 63-11-30(2)(d) (Supp.1991) provides as follows:

Any fourth or subsequent violation of subsection (1) of this section shall be a felony offense, and upon conviction, the offenses being committed within a period of five (5) years, such person shall be fined not less than Two Thousand Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00) and shall be imprisoned not less than ninety (90) days nor more than five (5) years in the State Penitentiary. Except as may be otherwise provided by paragraph (f) of this subsection, the Commissioner of Public Safety shall suspend the driver's license of such person for five (5) years.

The indictment at issue is titled "INDICTMENT FOR THE OFFENSE OF FELONY--DUI Secs. 63-11-30(1) and (2)(d)," and charges in count one that Page:

did wilfully, unlawfully and feloniously drive or operate a vehicle within the State of Mississippi on Highway 49 South, Richland, Rankin County, while under the influence of intoxicating liquor. The said Randall D. Page has three or more convictions for violation of Section 63-11-30(1) of the Mississippi Code of 1972. Said offenses all have occurred within a five year period of this offense. The previous convictions were as follows:

1. Convicted on October 14, 1987, in Ocean Springs Municipal Court in Cause Number 50875;

2. Convicted on August 1, 1988, in Forest Municipal Court in Cause Number 1511;

3. Convicted on February 13, 1989, in Forest Municipal Court in Cause Number 100;

4. Convicted on March 18, 1989, in Brandon Municipal Court in Cause Number 86-0140;

5. Convicted on April 24, 1989, in Forest Municipal Court in Cause Number 389.

Count two of the indictment charged Page with operating a vehicle while having a blood alcohol content of .10% or more. It also charged Page as a felon in the manner set forth above.

I.

The simple question is whether this indictment is legally sufficient to charge Page with a felony offense pursuant to Miss.Code Ann. Sec. 63-11-30(1), (2)(d) (1989).

Questions regarding the legal sufficiency of an indictment to charge a particular crime, as here, are determined on the face of the indictment without reference to whether proof has been, or may be, offered in support of the charge. Winston v. State, 479 So.2d 1093, 1095 (Miss.1985).

II.

Page contends that the indictment is insufficient because it fails to specifically charge that, within five years prior to the instant charge, he has been convicted of anything other than five first offense violations of the Implied Consent Law. In his view, the indictment must show as a condition precedent to the fourth offense felony charge that he has been charged and convicted specifically of a "first offense," "second offense" and "third offense." Page relies upon a line of older cases known colloquially as the "whiskey" cases.

In Brewsaw v. State, 168 Miss. 371, 151 So. 475 (1933), Brewsaw was indicted, tried and convicted as a felony offender for the unlawful possession of intoxicating liquor. The indictment charged:

That John Brewsaw on the 22 day of May 1933 in the County and District aforesaid having previously been convicted by a court of competent jurisdiction twice for the unlawful possession of intoxicating liquor in the Second Judicial District of Jones County, Mississippi, did then and there, unlawfully, feloniously and wilfully have in his possession intoxicating liquor against the peace and dignity of the State of Mississippi.

Id. at 374, 151 So. at 476.

Brewsaw demurred to the indictment on the ground that it failed to properly charge him as a felon. The statute, similar to the one here, provided that a third conviction would be punishable as a felony. The Court sustained the demurrer on the ground that the indictment fail[ed] to adequately set forth "in what court or courts the [prior] convictions took place and when they took place, and it failed to charge that they were convictions under this statute." Id. at 375, 151 So. at 476.

The Court reasoned that:

Under the statute the unlawful possession alone of intoxicating liquor is not a felony; it is the third offense that constitutes the felony. The first two convictions are therefore essential elements of the felony; without them there is no felony; they are just as much a part of the felony as the unlawful possession of the liquor. Furthermore, to constitute a felony the two previous convictions must be under the same statute. The indictment, therefore, should have charged that the two previous convictions were for a violation of this particular statute, and in what court or courts they were had and when.

Id. at 375, 151 So. at 476.

In Millwood v. State, 190 Miss. 750, 1 So.2d 582 (1941), Millwood was indicted as a third offender under the "whiskey" statute which made a third offense punishable as a felony by "imprisonment ... not less than one year nor more than five years, if the conviction is for an offense under this Act committed after the person convicted has been convicted and punished for two former offenses hereunder." Id. at 755, 1 So.2d at 582.

In reversing Millwood's conviction, the Court stated:

And under the reasoning set forth in Brewsaw v. State, 168 Miss. 371, 151 So. 475, when the procedure seeks to hold the accused as a second offender it must be charged in the affidavit or indictment and shown by the proof that previously to the commission of the offense then being prosecuted, the accused had been convicted of a first offense under the statute; and when the accused is being prosecuted for a felony or third offense, the indictment must charge and the proof must show (1) that the accused had been convicted of a first offense, and (2) that after being convicted of the first offense he committed the second offense and was convicted of it as such, and (3) after the successive offenses and convictions in the order aforesaid, he committed the third or felonious offense.

Neither the indictment nor the proof in this case, which is a prosecution as for felony, measures up to the requirements set forth in the foregoing paragraph....

Id. at 755-56, 1 So.2d at 583 (emphasis added).

Following Millwood, the Court decided Rogers v. State, 198 Miss. 495, 22 So.2d 550 (1945), another case where the defendant was charged with a felony offense under the statute making illegal the possession of intoxicating liquor. The pertinent part of the indictment charged as follows:

[O]n the 30th day of August, 1943, the said James Rogers was duly and legally convicted in the Justice of the Peace Court of M. McKibben of District number one, Grenada County, Mississippi, of the said offense of possessing intoxicating liquors, which judgment of conviction being a final conviction, is of record at Page 317 of Docket No. 4 of the said M. McKibben, Justice of the Peace; and Thereafter, on the 2nd day of March, 1944, ... as appears of record at Page 30 of Docket No. 5 of the said McKibben, Justice of the Peace of District number one, Grenada County, Mississippi, in said court of the said Justice of the Peace, James Rogers was duly and legally convicted of the said offense of unlawfully possessing intoxicating liquors, towit, whiskey, which said judgment is a final judgment of conviction; and Thereafter on the 10th day of January, 1945, in Grenada County, Mississippi, and within the jurisdiction of this Court, the said James Rogers wilfully, unlawfully and feloniously, and for a third time, having been twice convicted as aforesaid, wilfully, unlawfully and feloniously, did have in his possession and under his control intoxicating liquor, towit whiskey, against the peace and dignity of the State of Mississippi.

Id. at 497-98 n. 1, 22 So.2d at 550 n. 1.

The court held that the indictment, under the authority of Brewsaw, did not contain a specific reference to the statute under which the present charge was brought, nor did it provide specifically that the prior convictions were under the same statute. Under the authority of Millwood, the court held that the indictment failed to charge a felony offense because it did not specifically allege that the defendant's "second conviction was on a charge of having intoxicating liquor in his possession after a former conviction...." Id. at 498, 22 So.2d at 550 (emphasis in original).

Simply being charged under the same statute "for a third time" after "having been twice convicted" does not charge a felony, according to Millwood and Rogers. This was clearly stated in McGowan v. State, 200 Miss. 270, 25 So.2d 131 (1946) where, in discussing Brewsaw, the Court noted that "[f]or all the Court knew, the defendant in the Brewsaw case had been twice before convicted only as a...