Sudduth v. State

• Citation: 136 Miss. 742,101 So. 711
• Decision Date: 10 November 1924
• Docket Number: 24324
• Court: United States State Supreme Court of Mississippi
• Parties: SUDDUTH v. STATE. [*]

101 So. 711

136 Miss. 742

SUDDUTH v. STATE. ^[*]

No. 24324

Supreme Court of Mississippi

November 10, 1924

Division B

CRIMINAL LAW. Motion on admitted facts entitling defendant to discharge for testifying before grand jury should the sustained.

Under section 1792, Code 1906 (section 2106, Hemingway's Code) one who was required to appear before a grand jury and testify before it relative to the possession of intoxicating liquors is entitled to immunity from prosecution for such offense, and after conviction a motion in arrest of judgment setting forth facts, admitted by the state to be true, which entitle the defendant to such immunity, should be sustained and the defendant discharged.

HON. G E. WILSON, Judge.

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

Tom Sudduth was convicted of the unlawful possession of more than one quart of intoxicating liquor, and he appeals. Reversed and appellant discharged.

Judgment reversed.

Jas. T. Crawley, for appellant.

I. The court below erred in sustaining the demurrer of the state to the plea of immunity filed by the defendant. The defendant filed a plea of immunity, setting forth the fact that he was brought before the grand jury, and there testified about the very offense for which he was being prosecuted in circuit court, and that by virtue of section 1792, Code of 1906, he was immune from prosecution, and claimed said immunity.

Section 1792, Code of 1906, reads as follows, to-wit: "Witness to testify though it may incriminate him. No person shall be excused from attending and testifying before a grand jury, or before any court, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of this chapter, or any amendment thereof, on the ground and for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him, or subject him to a penalty or forfeiture. But no person shall be prosecuted or subject to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before the grand jury, or any court; provided that no person so testifying shall be exempt from prosecution or punishment for perjury in so testifying. Any person who shall neglect or refuse to so attend or testify, or to answer any lawful inquiry, or to produce books or other documentary evidence, if in his power to do so, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than one hundred dollars or more than five hundred dollars, or by imprisonment for not more than ninety days, or by both such fines and imprisonment."

From a reading of the above statute it is plainly seen that it was the intention of the legislature that a person when called before the grand jury to testify about a violation of the liquor laws, must testify, regardless of the fact that it would incriminate him. On the other hand, in order to protect him, and not to take advantage of him they agreed not to prosecute him for any violation of the liquor law about which he testified before the grand jury.

The demurrer of the district attorney admitted that all of the facts set forth in the plea of immunity were true as stated therein, but that the facts as stated were not sufficient in law to sustain his plea of immunity. The court accepted the theory of the state and sustained the demurrer of the district attorney, and this in itself constitutes error. Wall v. State (Miss.), 62 So. 417.

In Wall v. State, 62 So. 417, SMITH, C. J., said: "Appellant, a regularly elected and duly qualified constable, was convicted in the court below under section 1301 of the Code, which makes failure on the part of certain officers 'to return offenders' a misdemeanor. The facts are that some time prior to the finding of the indictment upon which appellant was tried, one Annie Craft unlawfully sold intoxicating liquor in his presence and he neglected to make an affidavit against her or to take any steps whatever to bring about her prosecution for the crime. Afterwards, and before the present indictment was found, he was summoned before the grand jury, and then testified relative to Annie's offense. In delivering this testimony which he was compelled to do under the provisions of section 1792 of the Code, appellant disclosed facts which incriminated him, to-wit, knowledge by him of the commission of an offense and a failure 'to return' the offender; and under the provisions of this section he is immune from prosecution therefor. The demurrer to his special plea setting up this defense should have been overruled."

In Griffith v. State, 90 So. 81, it was held that section 1792, Code of 1906, is not repealed by section 9, chapter 189, Laws of 1918, and under the provisions of these sections, where a party is introduced as a witness at the preliminary trial of one charged with manufacturing liquors, and compelled to testify, and disclose a violation of the liquor laws on his part, he is immune from prosecution for the same.

In Lucas v. State, 93 So. 437, SMITH, C. J., very clearly disposed of this case, and taking that case as a guide for the one at bar there can be but one result, to-wit, the reversal of the present case, and an order of dismissal. In that case a man who had already been indicted for manufacturing liquor appeared before the grand jury, possibly voluntarily, and testified. SMITH, C. J., in delivering that opinion says: "The appellant was convicted of distilling intoxicating liquor, and the evidence is that the still was being operated by the appellant and several others. By a special plea he claimed immunity under section 1792, Code of 1906 Hemingway's Code, sec. 2106), for the reason that he had appeared before the grand jury and testified as to the operation of the still. This plea is supported by the evidence, but the appellant was not allowed the immunity claimed.

"It is not clear from the evidence whether the appellant's appearance before the grand jury was voluntary or under compulsions, and when he appeared before it the grand jury had already voted to return an indictment against him for distilling liquor. The statute invoked covers all testimony relative to the sale, manufacture, etc., of intoxicating liquors, that has been permitted to be given before a court or grand jury, and contains no limitation of benefits either to such persons who have testified under compulsion, or who have testified before the finding of an indictment against them." See, also, Hosey v. State, 100 So. 577.

II. The court below erred in overruling the motion in arrest of judgment. The motion in arrest of judgment attempted to detail every bit of the actual facts of this case that transpired before the grand jury. The agreed testimony presented to the court by the district attorney and the attorneys for the defendant shows conclusively that this defendant in the court below was called before the grand jury of Leake county, Mississippi, and there caused to testify about the very violation of the liquor laws for which he was at that time being tried in the circuit court. It is agreed that the appellant told the truth about the matter, and that he admitted on examination that he had possession of the liquor. And all of this occurred before he was tried in circuit court of the charge he was later tried on, and about which he testified before the grand jury.

The attention of the court is called to the agreed testimony on motion in arrest, as found in the record on pages 49, 50 and 51. There is no dispute as to the truthfulness of the facts set up in the motion. The district attorney as appears from the agreed statement of facts offered in evidence, and considered by the court, on the motion in arrest of judgment, knows that the defendant was brought before the grand jury, and there compelled to testify. It is our sole contention that this act, or this fact, in itself, under section 1792, Code of 1906, renders the defendant immune from prosecution. In support of this argument, we respectfully cite Griffin v. State, 90 So. 81; Lucas v. State, 93 So. 437; Wall v. State, 62 So. 417; Hosey v. State, 100 So. 577.

E. C. Sharp, Assistant Attorney-General, for the state.

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