Smith v. State, 38987
| Decision Date | 25 January 1954 |
| Docket Number | No. 38987,38987 |
| Parties | SMITH v. STATE. |
| Court | Mississippi Supreme Court |
Russell & Little, Magee, for appellant.
J. P. Coleman, Atty. Gen., John E. Stone, Asst. Atty. Gen., for appellee.
Appellant was found guilty of the unlawful possession of intoxicating liquors and sentenced to pay a fine of $500 and to serve ninety days in jail. He appealed.
He filed a plea of former jeopardy. The trial judge denied the plea. This is argued as error. That action was taken under these circumstances: The Sheriff of Simpson County, with two of his deputies, armed with a proper warrant, on April 19, 1952, at 6:30 o'clock in the evening, searched the combination store and home of appellant, and therein found a quantity of whiskey. The sheriff did not make affidavit against appellant but waited until the September term of the circuit court and presented the matter to the grand jury. The appellant was then duly indicted. In the meantime, between the time of the search and the indictment, H. D. Smith made an affidavit before W. D. Hilton, a justice of the peace, charging appellant with the same crime. The affidavit alleged that the crime was committed on the same day and at the same hour that the sheriff made the raid upon the premises of appellant, as above stated. The crime occurred in District 2 of Simpson County. Hilton was a Justice of the Peace in District 3 and resided some twenty miles from the place of residence of the appellant. As a matter of fact H. D. Smith made four affidavits against appellant charging him with the unlawful possession of intoxicating liquors at different times. Smith, the affiant, is a first cousin of appellant. The affiant was not an officer of the law. He never appeared at the trial, and indeed it appears that the justice of the peace did not see him any more. The appellant plead guilty to three of the charges and entered a plea of nolo contendere to the one which charged him with the crime of which he was convicted in the circuit court. No testimony was taken on the trial of that case. The justice of the peace simply wrote out a judgment of conviction and the appellant paid the fine of $100. It appears that that was the fine in each of the four cases. That was a minimum punishment. Section 2613, Miss.Code of 1942. There was a Justice of the Peace in District 2, in which the home of appellant was located and where he resided. Smith, the affiant, was not present when the sheriff and his deputies searched appellant's premises and found the contraband. The sheriff knew nothing of the making of the affidavit before Hilton. Indeed, to get to the Justice of the Peace in District 3, it was necessary to leave District 2 and go entirely through District 1. Affiant made his affidavit upon information and belief. Under these conditions, the trial judge found that this conviction in the justice of the peace court was not a prosecution in good faith and that it was fraudulent, and made for the purpose of defeating the jurisdiction of the circuit court, and, being fraudulent and in bad faith, the proceeding before Hilton was not a bar to the prosecution in the circuit court.
In Price v. State, 104 Miss. 288, 61 So. 314, this Court said that it was competent for the State to show that a former acquittal was obtained by collusion, and that, if so, such acquittal is not a bar to another prosecution.
In Wharton's Criminal Evidence, Vol. II, pp. 1492-3, Par. 864, it is said: 'But where the acquittal has been brought about by fraud or collusion, it can not be pleaded in bar to another indictment or information for the same offense.'
The following announcement appears in 15 Am.Jur. 52, Par. 377:
In State v. Howell, 220 S.C. 178, 66 S.E.2d 701 that Court said: 'A verdict of acquittal procured by accused by fraud and collusion is a nullity and does not put the accused in jeopardy, and hence it is no bar to a second trial for the same offense.'
In Edwards v. Commonwealth, 233 Ky. 356, 25 S.W.2d 746, 747, that Court said that while a bona fide trial will bar another prosecution based upon the same facts, yet 'if such conviction was procured through the fraud or collusion of defendant and with the purpose of avoiding a fair and impartial trial to the commonwealth, to the end that it may be afforded an opportunity to develop the facts, then such a conviction or acquittal will not be sufficient to support the plea.'
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