Wolf v. State, No. 46988

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: SMITH
• Citation: 281 So.2d 445
• Parties: Eugene John WOLF v. STATE of Mississippi.
• Decision Date: 27 April 1973
• Docket Number: No. 46988

Page 445

281 So.2d 445 Eugene John WOLF
v.
STATE of Mississippi. No. 46988. Supreme Court of Mississippi. April 27, 1973.

Page 446

Dempsey M. Levi, Ralph W. Pringle, Pascagoula, for appellant.

A. F. Summer, Atty. Gen., by Karen Gilfoy, James W. Haddock and Timmie Hancock, Sp. Asst. Attys. Gen., Jackson, for appellee.

SMITH, Justice:

Eugene John Wolf was tried in the Circuit Court of Jackson County on an indictment charging that he did have in his 'possession and produce' a certain narcotic drug. He was convicted and sentenced to serve a term of five years in the penitentiary. He has appealed here.

The record leaves no reasonable doubt that appellant did, in fact, have in his possession and produce the narcotic drug as charged. Among the several grounds assigned for reversal is the overruling of appellant's objection to the indictment that 'as the indictment states the cause of action it is twofold and your defendant is not able to understand the charge against him.' It is now argued that the indictment charged in one count a felony (producing) and a misdemeanor (possessing) and is, therefore, fatally defective.

The general rule is that it is improper to charge the commission of two different crimes in a single count. Hitt v. State, 217 Miss. 61, 63 So.2d 665 (1953); Clanton v. State, 211 Miss. 568, 52 So.2d 349 (1951); 27 Am.Jur. Indictments and Information § 124 (1940).

In a recent controlled substance case decided by the Court of Appeals of Alabama, in which the one-count indictment charged the defendant with possession of two separate, distinct and different 'controlled substances,' namely, barbiturates, possession of which is a misdemeanor, and Demerol, possession of which constitutes a felony, the Alabama Court held that such distinct and separate offenses could not be joined in the same count. Brandies v. State, 44 Ala.App. 648, 219 So.2d 404 (1968).

There are certain generally recognized exceptions to the rule. These include such offenses as assault and battery and burglary and larceny. Bradshaw v. State, 192 So.2d 387 (Miss.1966).

The rationale of the exceptions seems to be that a statement in an indictment of the motive or purpose which prompted the principal criminal action, although it may in itself, if taken alone, charge an offense, is not objectionable, if it is incidental and relates to a description of the principal offense, is not inconsistent with it, and is part of a single transaction.

In Laughter v. State, a Mississippi case, 241 So.2d 641 (Miss.1970) the Court was confronted with a question of double jeopardy. In Laughter the Court dealt at some length with the 'single transaction principle' as it applied to double jeopardy. It appears that Laughter had been indicted for possession of marijuana, and by a separate indictment, for the sale of marijuana. He was tried and convicted on the possession charge and his conviction was affirmed. Following his conviction on the possession charge, Laughter was brought to trial upon the indictment for the sale of the same marijuana. On his motion to quash the indictment in the second case, it was established that the possession, for which he had been convicted previously, and the sale, for which he was to be tried, arose out of the same transaction and that the possession for which he had been convicted was necessarily incidental to the sale.

After an extensive review of the authorities, this Court said:

We are of the opinion that the one transaction principle is sound when properly

Page 447

limited. Since the facts in this case show that the appellant procured the marijuana at the request of Walker for the purpose of sale to Watson, his possession and sale of marijuana constitute one transaction and the possession was only incident to the sale. Under these circumstances possession was a lesser included or constituent offense of the sale and it would be unfair to punish appellant for both offenses (241 So.2d at 644).

The Court pointed out, of course, that if the possession had been distinct, unrelated or not incidental to the sale, or had been upon another occasion, the prosecution would not have been barred.

In West v. State, 49 So.2d 271 (Miss.1950) the indictment charged that the defendant had in his possession 'a still and the integral parts thereof.' In deciding that the indictment was not duplicitous in charging in the same count the offense of possession fo the still and of possession of the 'integral parts of a still,' each being a statutory offense, the Court said that the 'whole includes its parts. . . . A different question would have been presented had the allegation been in the disjunctive.' In the present case we have concluded that the possession, although a lesser offense in itself, was only incidental to the more serious charge of production of marijuana, and that possession and production were parts of the same transaction.

In the Mississippi 'pointing and aiming statutes,' it is made a misdemeanor to 'intentionally point or aim any gun, pistol, or firearm at or toward another, except in self-defense or in the lawful discharge of official duty.' It is also made a misdemeanor, for which a more severe punishment is provided, to 'discharge such firearm, so intentionally pointed or aimed, . . .' and is then made a felony if, 'by such discharge, (the accused) shall maim, kill, or injure another. . . .' Obviously, the indictment for the felony would not be objectionable although it included words which, if taken alone, would constitute the charge of either or both of the misdemeanors...