Taylor v. State

• Decision Date: 06 May 1912
• Docket Number: 15815
• Citation: 101 Miss. 857,58 So. 593
• Court: Mississippi Supreme Court
• Parties: BEN TAYLOR v. STATE

58 So. 593

101 Miss. 857

BEN TAYLOR v. STATE

No. 15815

Supreme Court of Mississippi

May 6, 1912

APPEAL from the circuit court of Forrest county, HON. PAUL B JOHNSON, Judge.

Ben Taylor was convicted of unlawful retailing and appeals.

The grand jury of Forrest county returned an indictment against appellant, charging "that Ben Taylor, on the 24th day of April, 1911, in Forrest county aforesaid, did unlawfully sell and retail intoxicating liquors, against the peace and dignity of the state of Mississippi."

The defendant filed a plea in abatement, which alleged that "he is now, and was prior and at the time of the finding and return of said indictment, under bond to appear before a justice of the peace to stand trial in said justice court on the precise and exact and same offense charged against him in said indictment; that there is now, and was prior to and at the time of the presentation of said indictment against him a pending cause against him in said justice court for the precise and exact and same offense undisposed of; that he was placed in jail under arrest by the sheriff of said county, on a warrant issued on an affidavit charging the defendant with the self-same offense; that this defendant executed an appearance bond, conditioned for its appearance for trial in said cause in said court, which said affidavit was made by the deputy sheriff of said county, and this defendant therefore denies the jurisdiction of this court to try him on said cause, and prays to be discharged.

To this plea, the district attorney filed a replication, which is in the following language: "That, about three weeks prior to the return of the indictment in this cause against the defendant, D. G. McGilvary, a deputy sheriff of said county made an affidavit against the defendant, charging him with the unlawful sale of intoxicating liquors as charged in this indictment, said affidavit returnable before said W. F Wedgeworth, mentioned in the defendant's plea; that the defendant was arrested and placed under bond on said charge but, as a matter of fact, the said affidavit was never lodged with said justice of the peace, nor the bond delivered to him, or filed in his court; that after the defendant was placed under bond for said offense, the grand jury of Forrest county convened, when the indictment against him was returned. Therefore the state denies that this court has not ample jurisdiction in this cause, and avers that this court has ample plenary jurisdiction in this matter, unaffected by the taking of said bond and the making of said affidavit by the said D. G. McGilvary, and this the state is ready to verify." To this replication, a demurrer was filed, which was by the court overruled. This action of the court is made one of the grounds assigned as error.

Affirmed.

Currie & Currie, for appellant.

The appellant filed a special plea to the jurisdiction of the court alleging in substance: That prior to the return of the indictment against him by the grand jury and at the time of the trial thereon in the circuit court, there was pending in the justice court of the beat in which the alleged offense was committed, a prosecution against him undisposed of for the precise and exact offense charged against him in the indictment, that the justice court first acquired jurisdiction and held it to the exclusion of the circuit court. The state in its reply to this plea admitted that an affidavit had been made, warrant issued, the defendant arrested thereunder and an appearance bond executed by him returnable before a justice of the peace in said beat to answer the state on the offense charged in the indictment. To this plea the defendant (appellant) demurred, the demurrer was overruled and the defendant (appellant) excepted. The action of the court in overruling the demurrer is assigned as error.

Sec. 1154 of the Code of 1906 defines the commencement of a prosecution as follows: "A prosecution may be commenced, within the meaning of the last preceding section, by the issuance of a warrant, or by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit. "This was the beginning or commencement of a prosecution. The broad and sweeping language of this statute is enacted for the benefit of the state against the interest of an offender. It operates to enable the state, first, to avoid the running of the statute of limitations, and second, to enable the state speedily to acquire jurisdiction of the person of the offender without the necessity of an indictment or affidavit in order that he may be surely brought to justice without opportunity to escape. By the warrant, the arrest and the appearance bond, an action or prosecution was commenced against the defendant in the justice court before which it was returnable. That prosecution was pending undisposed of at the time of the trial of the defendant in the circuit court and the justice court had jurisdiction.

This statute relates to prosecution for crime and its language must be strictly construed. Its scope cannot be enlarged or abridged by interpretation or exception. It must be taken at precisely exactly what it says.

Sec. 2749 of the Code of 1906, confers final jurisdiction on justice court, to try all misdemeanors; and this jurisdiction is concurrent with the circuit court, equal in power and authority, extent and finality. State v. Sinnott, 35 A. 1007, 89 Me. 41, 30 N.E. 1050.

In such case the court first acquiring jurisdiction retains it to the exclusion of all other courts having concurrent jurisdiction. 12 Cyc. 197; District of Columbia v. Libby, 9 App. Cas. 321; Mize v. State, 49 Ga. 375; State v. Spayde, 110 726, 80 N.W. 1058, 29 N.W. 428; 40 P. 662, 91 N.C. 529; 9 Tex. 43; 28 F. Cas. No. 16,665.

On the foregoing authorities we urge that the circuit court was totally without jurisdiction to try the case and that its judgment is utterly void.

The next assignment of errors to which we direct the court's attention is the refusal of the court to grant the defendant a peremptory instruction at the conclusion of the state's testimony. The defendant was being prosecuted under the code section punishing the sale of intoxicating liquors--that is section 1746--and the proof showed the defendant guilty, if guilty at all, of selling whiskey at a place of amusement, and the defendant not having been indicted for that offense and the state having failed to amend its indictment so as to correspond with the proof, the defendant was clearly entitled to acquittal. We urge this view upon the court with much stress and confidence. The defendant, we say, if guilty at all, was guilty of a violation of Sec. 1773 of the Acts of the Laws of Mississippi, 1908, and not of Sec 1746 of the Code of 1906. In the first place the proof shows that the defendant carried the whiskey to a place of amusement and sold it there, if at all; the proof shows that the defendant was a farmer, lived in the country and was not engaged in the "wet goods" business as a "blind tiger," and essentially is not guilty of the character of the offense prohibited in Sec. 1746, Code 1906; the proof shows that he himself was drunk and that he sold the whiskey openly and indiscriminately to all who applied for it, if indeed he sold it at all, everybody having a glorious and hilarious "time"--everybody drunk and drinking and eating and fiddling and dancing "at the frolic;" the proof shows that this defendant did precisely what the legislators foresaw a man with a little whiskey might do--carry it to a frolic, get drunk himself and then give or sell it to others--although not engaged in the liquor business, that he ought to be slightly punished and so it made the penalty much less severe than in the case of a "cold-blooded blind tiger" in the business for money.

This view gains much strength when we consider the history of Sec. 1773 of the Laws of 1908. This section appeared for the first time in the Code of 1892 and is Sec. 1606 in that Code, and prohibits and punishes only the carrying and giving away of whiskey or intoxicating liquors at such places. This section reappears in the Code of 1906, and in Sec. 1773 of that Code and prohibits and punishes only the carrying or giving away of intoxicating liquors at such places. This section appears in the Acts of 1908, and is Sec. 1773 of said acts, and for the first time prohibits and punishes the sale of intoxicating liquors at such place. The act as it is now written prohibits and punishes (1) the carrying of intoxicating liquors to such place; (2) the giving away of intoxicating liquors at such place; (3) the selling of intoxicating liquors at such place. Division (3) of this analysis is the offense of which the proof in this case shows the defendant guilty, if guilty of any offense, and the indictment not charging him with this offense, the defendant was entitled to his discharge.

This contention is also greatly strengthened by the vast difference in the punishment to be inflicted; the imposition of a confiscatory money fine of five hundred dollars, and the imposition of the extreme penalty of ninety days in the county jail intended for the "breaking of the enlaired blind tiger" is not the fine and penalty intended to be imposed upon a farmer who, in a drunken condition, his reason dethroned, happens to visit a place of amusement or social gathering, and while in that condition carries whiskey to the place and gives it away or sells it; the turpitude of such act is not such as to justify the infliction of such punishment;...