Smith v. State

• Decision Date: 20 May 1912
• Docket Number: 15901
• Citation: 101 Miss. 853,58 So. 539
• Court: Mississippi Supreme Court
• Parties: GEORGE SMITH v. STATE

58 So. 539

101 Miss. 853

GEORGE SMITH v. STATE

No. 15901

Supreme Court of Mississippi

May 20, 1912

APPEAL from the circuit court of Washington county, HON. J. M CASHIN, Judge.

George Smith was convicted of unlawful retailing and appeals.

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

Reversed and remanded.

Watson & Jayne, for appellant.

1. The trial court erred in sustaining the demurrer of the state to the plea of autrefois convict interposed by appellant.

The plea of autrefois convict interposed by appellant herein met all of the requirements of law and was valid. It set out therein in substance in the following allegations: (a) A former conviction; (b) of an offense cognizable by the court of a justice of the peace, which offense was committed within his district; (c) that the justice of the peace and the circuit court had concurrent jurisdiction of the offense that the offense whereof appellant was convicted in the court of the justice of the peace was identical with that laid in the indictment. This plea was prepared with due reference to the precedents and met the requirements of all of the authorities on Criminal Procedure. This is not of that character of plea which requires the greatest degree of certainty. It is sufficient to state the facts constituting the former jeopardy. Helm v. State, 66 Miss. 537.

2. The trial court erred in excluding the evidence sought to be brought out by appellant by cross-examination of the witnesses for the state, showing his former conviction in the justice of the peace court on the charge of which he was indicted, and also tending to show that at said trial before said justice of the peace, evidence was introduced of other sales made by him anterior to December 2, 1911.

The trial court should have admitted the evidence tending to show the former conviction of the appellant in the court of the justice of the peace for two reasons: (a) that the evidence went to the identification of the offense of which he was tried in the justice court with that of which he was being tried in the circuit court, so far as the sale of December 2 1911, was concerned; and (b) because the evidence tended to show that on his trial before the justice of the peace evidence was introduced of other sales made anterior to December 2, 1911, and within two years next prior thereto. Wadley v. State, 96 Miss. 77; Neely v. State, 56 So. 377.

3. The trial court erred in denying appellant leave to file his plea of autrefois convict during the progress of the trial in the circuit court.

Even if the trial court was correct in sustaining the demurrer to appellant's plea of autrefois convict, still he should have been allowed to interpose his plea again during the trial under the facts there developed. Wadley v. State, 96 Miss. 77; Neely v. State, 56 So. 377.

In Wadley v. State, no specific date being alleged upon which the offense was committed, the court says:

"As the indictment did not allege the date on which the violation occurred, and as it was returned subsequent to the conviction of appellant in the justice court, it would hardly be expected that he would file the plea of former conviction until it developed in the state's testimony that the state intended to rest its prosecution on a sale occurring prior to the conviction before the justice. It may be better practice to file the plea of former conviction before the trial commences, if the defendant knows such fact as would justify the plea at that time; but in this case we know of no rule of pleading that makes it imperative for a plea of this nature to be filed before the trial is begun, and to so hold in this case would thwart justice."

In the case at bar the state relied in part on the identical offense covered by the plea of autrefois convict, and also on other sales made within two years next prior thereto, the indictment...