Williams v. State

• Decision Date: 28 March 1921
• Docket Number: 21496
• Citation: 125 Miss. 347,87 So. 672
• Court: Mississippi Supreme Court
• Parties: WILLIAMS v. STATE

87 So. 672

125 Miss. 347

WILLIAMS v. STATE

No. 21496

Supreme Court of Mississippi

March 28, 1921

1. CRIMINAL LAW. Evidence insufficient to show conviction of prior offenses under statute.

Where a person is indicted for the unlawful sale of intoxicating liquors under section 1 (c), chapter 214, Laws 1912 (section 2086, Hemingway's Code), which provides that on conviction the punishment shall be "by imprisonment in the state penitentiary not less than one year nor more than five years, if the conviction is for an offense under this Act committed after the person convicted has been convicted and punished for two former offenses thereunder," and the testimony as to the two former convictions and punishments showed that the defendant had pleaded guilty in a justice of the peace court and prosecuted an appeal to the circuit court, in which court the cases were docketed, and the minutes of the circuit court fail to show any disposition of the cases in that court, they are still pending cases in the circuit court, Consequently there is no proof of two former convictions and punishments under this act.

2. CRIMINAL LAW. Punishment as for first conviction only held warranted.

Under this testimony the defendant can only be punished as for a first conviction under section 1 (a) of this act.

3. CRIMINAL LAW. Minutes of circuit court cannot be contradicted by parol; supreme court orders and judgments shown by minutes.

The circuit court speaks through its minutes. These court minutes import absolute verify and cannot be contradicted by parol The orders and judgment of this court are shown on its minutes.

HON. W H. HUGHES, Judge.

APPEAL from circuit court of Simpson county, HON. W. H. HUGHES Judge.

Ascus Williams was convicted of unlawfully selling intoxicating liquors, and he appeals. Affirmed, and remanded for sentence.

Judgment affirmed, and cause remanded.

Hilton & Hilton, for appellant.

We concede that this defendant was guilty of selling whiskey on this occasion as shown by the record. We concede that on two former occasions he pleaded guilty to selling whiskey for two separate offenses and was fined fifty dollars and five days in jail in each. But we contend that there was no punishment and convictions under section 2086 of Hemingway's Code for the first and second offense; that there is no legal proof of any convictions whatever for former offenses. Section 727 of Hemingway's Code require the circuit court to keep minutes of its proceedings. The circuit court shows by its dockets and appeal, papers therein on appeal of the two convictions in the justice court, which made the justice court convictions inoperative, and therefore the minutes of the circuit court must speak dismissal with writs of procedendi or convictions carrying punishments under 2086 before the third conviction may be had. In the case of Childress v. Carley, 92 Miss. 571, this court has spoken as to the sanctity and verity of circuit court minutes. We presume that the state's counsel would not contend seriously that there must not be a minute record of the disposal of these cases. He alleges, however, that the records show that one of these cases were dismissed to the mayor's court with a writ of procedendo. This record is not the minute record, however, the state's case fails because it only shows one conviction. Counsel cites the statement of the lower court that the payment of the fines by the defendant operated as a dismissal. The answer to that is twofold; first, the court below excluded evidence showing the true facts about this matter; second, the evidence with reference to this payment was incompetent and illegal.

Counsel contends there was no error in overruling the demurrer and cites the Robinson case. In the Robinson case the indictment set forth in detail the two former acts of the defendant, which of course sufficiently charged the crime. But here two former sales in courts of competent jurisdiction were not alleged, but merely alleged that he had been convicted of two former offenses of like character, without setting forth any detail to show the crime.

Counsel argues that competent proof has been introduced. He cites the evidence of Judge Kennedy. We think the trouble with Counsel's argument is that he has overlooked paragraph (c) of section 2086, of Hemingway's Code, which provides that to maintain the third conviction there must have been two former convictions, hereunder. It does not say two former convictions, but it says two former convictions and punishments, and the convictions and punishments must be under this statute. Counsel argues that the answer to this proposition is that he was tried for both offenses on the same day and was not confronted with a prisoner who had already been charged under paragraph (a), and not having an affidavit made under paragraph (b) could, therefore, not convict and punish under paragraph (b). It seems to us that it would have been a very small matter after the first conviction to have had the affidavit amended so as to bring the case under paragraph (b). We think that until there is a conviction and punishment shown under paragraph (b) there can certainly be none under paragraph (c). We think again that counsel's contention helps us here for the reason that he contends himself there has been no conviction under paragraph (b) but both of the former were under paragraph (a), which if true still shows there is no conviction under paragraph (b) and therefore can be none under paragraph (c).

Inasmuch as there has been no attempt in either of the two other trials, to prosecute under section 2086, of Hemingway's Code we think this case should be settled as was the case of Britton v. State, which is squarely in point.

In that case there was an attempt to convict for the second offense under chapter 214 of the Acts of 1912. This court held that because the act was committed prior to 1912 that section 1573 of the Code of 1906, which is section 1335 of Hemingway's Code, kept alive the Acts of 1908, chapter 115, section 1746, under which the defendant could be punished as a first offense and this should be done although the Act of 1912 is not applied. This is exactly the attitude here; the convictions in the justice court relied on were no attempts to prosecute under section 2086 of Hemingway's Code and therefore under section 1335 of Hemingway's Code chapter 115 of Acts 1908, applied to the first convictions and they should be held as convictions under that act, should they be construed as competent proof in the case at all.

Counsel contends that the state's instruction was correct, that it followed paragraph (c) of section 2086 of Hemingway's Code which is as follows: "By imprisonment in the state penitentiary not less than one year nor more than five years, if the conviction is for an offense under this act committed after the person convicted has been convicted and punished for two former offenses hereunder."

The instruction for the state did not require the jury to believe that he had been convicted and punished for two former offenses under the act. The state did not show that he had been convicted and punished for two former offenses under the act, but merely charged the jury that if he had been convicted of two offenses of like character it was sufficient to convict him on this charge.

We submit to the court that the appellant has received no semblance of a fair trial for the crime for which he has been convicted, and although he be a negro and has sold whiskey before, we think that justice and fair play under our law require punishment for crime charged and not convictions on general principles.

H. Cassedy Holden, for appellee.

Selling liquor is a violation of section 2086, Hemingway's Code (chapter 214, Laws of 1912). Therefore it was proved that the defendant had twice before been convicted, sentenced and punished for a violation of this statute. His punishment consisted of a fine of fifty dollars and cost and five days' imprisonment in each case until same should be paid, for each former conviction. The fines and costs were paid by him and he, therefore, underwent the punishment imposed upon the convictions for two separate offenses prior to the offense charged in the indictment in this case.

It is contended that although the defendant was proved to have been convicted twice of selling liquor prior to the offense charged in the indictment, he was not proved to have twice violated the above statute. It is said that the two former convictions and sentences indicate that they were not for a violation of the above statute since both fines were fifty dollars and costs which would indicate a first offense covered by paragraph a of the statute. The answer to this contention is obvious. The defendant was tried by Justice of the Peace Kennedy for two separate offenses committed at different times. There were two affidavits and the defendant was tried separately on each affidavit but on the same day. At the time these trials took place, Justice of the Peace Kennedy could not have fined the defendant under paragraph b of the statute. He was not confronted with a prisoner who had been tried, convicted and punished for retailing liquor. He was confronted with a prisoner against whom two affidavits had been made, charging two separate offenses for which the defendant had never been tried and convicted. His honor was eminently correct in assessing a fine of fifty dollars and costs in each case against the defendant, proceeding under paragraph a.

But when the defendant was indicted by a grand jury, based upon a violation of the statute which occurred on August 12, 1919, the circuit court was confronted with a prisoner who had been previously convicted of two like offenses in the justice of...