State v. Sam.
Decision Date | 06 May 1929 |
Docket Number | 27720 |
Citation | 154 Miss. 14,122 So. 101 |
Court | Mississippi Supreme Court |
Parties | STATE v. SAM. [*] |
(Division B.)
1. INDICTMENT AND INFORMATION. Affidavit charging in same count doing of more than one of acts made offense by statute using disjunctive "or" must use conjunctive "and."
Where a statute making the doing of several things or acts an offense, using the disjunctive "or," the affidavit should, if it charges the doing of more than one of the things or acts in the same count, use the conjunctive "and." An affidavit or indictment which uses the disjunctive, charging in the alternative, is bad.
2. INDICTMENT. AND INFORMATION. Omission of essential element of statutory offense makes affidavit or indictment bad.
In charging statutory offenses, all of the necessary elements of the crime, as defined in the act, must be charged, and the omission of an essential element makes the affidavit or indictment bad.
APPEAL from circuit court of Lawrence county.
HON. J Q. LANGSTON, Judge.
Prosecution by the state of Mississippi against J. W. Sam for issuing and delivering a check on a bank in which he had insufficient funds on deposit to pay check. From an order sustaining demurrer to the affidavit, the State appeals. Affirmed.
Judgment affirmed.
J. A Lauderdale, Assistant Attorney-General, for the state.
REPORTER'S NOTE: No brief was found for appellee in the record.
The appellee, J. W. Sam, was prosecuted in the justice of the peace court for violating section 942, Hemingway's Code of 1927 (chapter 172, Laws of 1924). He was convicted in this court, and appealed to the circuit court of Lawrence county, where a demurrer to the affidavit was interposed and sustained by the circuit court, and the defendant discharged. The affidavit reads as follows:
--when he, the said J. W. Sam had insufficient funds on deposit in the said Bank of Monticello with which to pay said check, or after issuing and delivering said check did withdraw or cause to be withdrawn any balance to his credit, without leaving with such bank a sufficient sum to cover said check, and that said check has been duly presented to said bank for payment, and same has not been paid, against the peace and dignity of the state of Mississippi.
H. E. GRAVES.
"Sworn to and subscribed before me this the 7th day of July, A. D. 1928. W. E. Driver, Mayor of Monticello, and ex-officio Justice of the Peace."
The state appeals from the order sustaining the demurrer.
Section 942, Hemingway's Code of 1927, reads as follows:
It will be seen from a careful reading of this section that the gist of the offense denounced by section 942 is the obtaining from such other person any credit, goods, property or value, and having no funds, or insufficient funds, on deposit to the credit of the maker of the check, etc. In other words, the statute does not intend to inflict the punishment therein prescribed for giving a check without any consideration therefor, or as a gratuity, or in payment of a debt already contracted, but it was intended to prevent the obtaining of property or credit by giving a check under the circumstances named in the statute.
The affidavit does not contain any allegation as to what property or money or credit was obtained by the giving of the worthless check. The...
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