Wadley v. State

• Decision Date: 08 November 1909
• Docket Number: 14,146
• Citation: 50 So. 494,96 Miss. 77
• Court: Mississippi Supreme Court
• Parties: LOUIS WADLEY v. STATE OF MISSISSIPPI

50 So. 494

96 Miss. 77

LOUIS WADLEY v. STATE OF MISSISSIPPI

No. 14,146

Supreme Court of Mississippi

November 8, 1909

FROM the circuit court of, first district, Panola county, HON WILLIAM A. ROANE, Judge.

Wadley appellant, was indicted for and convicted of the unlawful sale of intoxicating liquors and appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed and remanded.

Shands & Montgomery, for appellant.

It is true that the plea of autrefois convict was filed after the state had closed its case, but it was so filed without objection and no motion was made to strike it from the files because out of time, and, since the state demurred to the plea, it is too late for complaint to be made here for the first time on the ground that it was not seasonably filed.

It was impossible in this case for the defendant to know whether he could truthfully interpose the plea before the state had closed its testimony; he could not tell that the state counted for a conviction upon the sale pleaded until after the state's evidence had been heard. The indictment charged a sale on the day of , 1908, without designating the day or month and it failed to name the purchaser. Had the state proved a sale between the 8th of August and the 2nd of October, 1908, the plea would have been inapplicable. The plea distinctly averred a former conviction of the same offense as the one upon which the state relied for a conviction in this case, and it was unquestionably in proper form and was good upon its face and not subject to demurrer.

Constitution 1890, sec. 22; 9 Ency. P. & P. 634, sec. C.; 1 Bishop's New Crim. Proc. § 810, p. 474.

George Butler, assistant attorney-general, for appellee.

It was expressly decided by this court in the cases of Ireland v. State, 89 Miss. 763, and Ball v. State, 67 Miss. 358, that the defense of a former conviction could only be set up by a special plea. While it is true that it is a favored plea, manifestly, when the plea is not filed until after the case has been opened, there should be some reason offered for the delay in filing it before it should have been received. Probably, the plea would have been stricken out on motion of the district attorney, but aside from this the plea was fatally defective in that it was not shown that the offense for which appellant had been convicted was the identical offense for which he was being tried. It will be noticed that the plea recites that the former offense was tried before a justice of the peace and that it was alleged to have been committed on the 7th day of August, 1908, and that on the 8th day of August, 1908, appellant appeared and plead guilty of the charge and further alleges: "And defendant further avers that the offense charged against him in the affidavit, and for which he was convicted, and for which he has already paid the penalty of the law, is the same with which he is charged in this indictment in this case."

The evidence before the court at that time shows that the offense for which appellant was then being tried was committed in July, 1908, and not on the 7th day of August, 1908, the date of the commission of the offense for which he had previously been tried and convicted.

It is quite true that under Code of 1906, § 1762, if there had been given in evidence in the trial in the justice of the peace court the sale made in July in connection with the sale made on the 7th day of August, this would have operated as a bar to the prosecution for the sale,--Pope v. State, 63 Miss 53,--but the plea recites that the defendant plead guilty to the charge. Therefore, under the statute, the prosecution as to the prior offense was not barred.

I think it may be safely said that the plea in this case does not distinctly allege that the offense charged in the former affidavit and this charge are one and the same, and this according to all of the authorities, is necessary. 9 Encl. Plead. & Prac. 634; Pope v. State, 63 Miss. 53.

It is...