State v. White

• Decision Date: 12 October 1925
• Docket Number: 25094
• Citation: 105 So. 500,140 Miss. 245
• Court: Mississippi Supreme Court
• Parties: STATE v. WHITE. [*]

105 So. 500

140 Miss. 245

STATE v. WHITE. ^[*]

No. 25094

Supreme Court of Mississippi

October 12, 1925

Division A

INTOXICATING LIQUORS. Person testifying as to violation of prohibition laws is immune from prosecution for crime revealed by his testimony.

A statute enacted after the adoption of the Code of 1906 prohibiting the manufacture of intoxicating liquors, and not purporting to amend any particular section of the Code chapter on intoxicating liquors, is an amendment of that chapter of the Code within the meaning of section 1792, Code of 1906 (Hemingway's Code, section 2106), which provides that no person shall be excused from testifying in any cause or proceeding based upon or growing out of any alleged violation of the Code chapter on intoxicating liquors "or any amendment thereof," and granting such person immunity from prosecution for crime revealed by his testimony.

HON. G E. WILSON, Judge.

APPEAL from circuit court of Scott county, HON. G. E. WILSON, Judge.

Charley White was awarded immunity from prosecution for manufacturing intoxicating liquor, and the state appeals. Affirmed.

Affirmed.

J. L. Byrd, Assistant Attorney-General, for the state.

This is an appeal by the state from a judgment of the circuit court of Scott county, Mississippi, sustaining a plea of immunity filed by appellee in a case where he was indicted for manufacturing intoxicating liquor, and discharging the appellee from custody. After the indictment had been returned against him, the appellee caused himself to be called before the grand jury and there made a full disclosure of the facts connected with the crime for which he was indicted. The state's evidence shows that he voluntarily went before the grand jury and testified without ever having been subpoenaed and without any subpoena having been issued for him.

When his case came on for trial, he filed his plea claiming immunity under section 2106, Hemingway's Code. The court heard the proof, sustained the plea and discharged the appellee from custody, and the state appeals. Section 2106 has been construed by this court to mean that the immunity there provided for, applies only to violations of the provisions of that chapter, which chapter does not have any reference to distilling. Maxie v. State, 97 So. 560.

Based on the reasoning of the foregoing opinion, we most respectfully submit that this plea of immunity was improperly sustained, for the reason that the disclosures made by appellee were not made with regard to any violation of the law contained in chapter 40, Code of 1906.

We submit too that the plea should not have been sustained, because the proof shows that the appellee's appearance before the grand jury was free and voluntary and no force whatever was used and his acts amounted to, and were in fact a waiver of any right he might have had to claim immunity.

Eastland & Mize and Huff & Lee, for appellee.

The evidence does not show that appellee caused himself to be called before the grand jury. The evidence shows that one of the jurors called him before the grand jury. When appellee had been called before the grand jury and had been sworn to tell the truth, he was questioned as to whether he knew of any violations of the Prohibition Laws, and was questioned about same, and he made a full disclosure of all facts and circumstances which tended in any way to incriminate him.

Waiving a jury, and submitting the question of law and fact to the judge as court and jury on the sole issue of whether appellee had procured himself to be a witness before the grand jury, after hearing the evidence, the court sustained the special plea of immunity, and ordered the appellee discharged.

The attorney-general takes the position that section 2106 Hemingway's Code, the immunity statute, applies only to violations of that chapter, which is the chapter on Intoxicating Liquors, and doubtless this is true, if qualified with "or any amendment thereof" as provided by the statute. In the same chapter, that is, on Intoxicating Liquors, which is an amendment of the chapter, at section 2163t, Hemingway's Code, Supplement of 1921, is found the law as written against the manufacture of liquors. We, therefore, fail to grasp the intent and purpose of his statement that this section 2106 has no reference to distilling. This court itself in the case of Maxie v. State, 97 So. 560, and cited in the attorney-general's brief, has said that it applies to intoxicating liquor and does not include prosecutions for homicide, as in...