Opinion
No. 27149.
May 7, 1928.
1. EMBEZZLEMENT. Prosecution for failure to return storage battery eleven days after expiration of rental agreement held prematurely instituted ( Hemingway's Code 1927, section 1171).
Prosecution predicated on Hemingway's Code 1927, section 1171, making it unlawful to retain rental storage batteries for a longer period than fourteen days without owner's consent, held prematurely instituted eleven days after expiration of rental agreement, wherein defendant had agreed to return battery on specified date.
2. EMBEZZLEMENT. Affidavit alleging failure to return storage batteries, filed eleven days after expiration of rental agreement, held insufficient under law requiring return within fourteen days ( Hemingway's Code 1927, section 1171).
Affidavit charging defendant with failure and refusal to return storage batteries on agreed date, filed eleven days after expiration of rental agreement, held insufficient to charge offense under Hemingway's Code 1927, section 1171, forbidding retention for more than fourteen days of rental storage batteries without owner's consent, since, in order to constitute an offense thereunder, battery must be retained for a longer period than fourteen days after date on which it was agreed to be returned.
APPEAL from circuit court of Marion county; HON. J.Q. LANGSTON, Judge.
Goss Goss, for appellant.
The affidavit in this case appears on page (5) of the Record. Our contention is that said affidavit charges no offense known to our law, and if we are correct in this, then the justice of the peace had no jurisdiction of the person of this appellant, and since the justice of the peace had no jurisdiction, on appeal, the circuit court had no jurisdiction; and therefore, the proceedings are each and all a nullity and are void.
It is true that under section 1426, Code of 1906, sec. 1182, Code of 1917 (Hem.) all objections to defects apparent on the face of an indictment shall be taken by demurrer. However, the court said in Cook v. State, 72 Miss. 517, 17 So. 228, that an omission in an indictment for a felony going to the very essence of the offense renders it void and subject to attack at any time, notwithstanding the sections above mentioned. Also, see, Taylor v. State, 74 Miss. 544, 21 So. 129. Therefore, we submit that in the present case certain essential elements of the crime of embezzlement under section 1140, Code 1906, were omitted, and that the omission of these elements was fatal to the affidavit and rendered it null and void as no offense known to the law was alleged. The affidavit wholly failed to state that the appellant herein fraudulently appropriated, any property whatsoever, failed to state that the act was done "feloniously," and further, failed to show any conversion of goods or money in any way or manner. It is very essential to any charge of embezzlement that a conversion be shown, and under section 1140, Code 1906, fraudulent appropriation of goods borrowed or hired is the very essence of the offense.
We further submit that should the affidavit have charged an offense under section 1140, Code 1906, Sec. 868, Code of 1917 (Hem.), that the justice of the peace would have had no jurisdiction to try said cause as the crime set out in the above sections amounted to a felony, and as justices of the peace have no power conferred upon them, either under the Constitution or statutes of this state whereby they can assume jurisdiction of any cause which amounts to a felony for the purpose of trial and judgment. On the converse, section 171 of the Constitution of Mississippi prescribes that the jurisdiction of a justice of the peace over crimes shall only extend to those crimes whereof the punishment prescribed does not extend beyond a fine and imprisonment in the county jail. Sec. 2749, Code 1906, Sec. 2248, Code of 1917 (Hem.). We further submit that the circuit court on appeal acquires only such jurisdiction as the justice of the peace had, and since in this case the justice of the peace had no jurisdiction whatsoever, then the circuit court was without power or jurisdiction, and had not the power to, issue a writ of procedendo to the justice of the peace to enforce his judgment.
James W. Cassedy, Jr., Assistant Attorney-General, for the state.
Counsel for the appellant set forth in their brief that the appellant was tried and convicted on a charge of embezzlement under section 1140, Code of 1906, sec. 868, Hemingway's 1917 Code. After making this statement, counsel then proceed to argue that the affidavit charged no crime in that it did not properly set out the charge of embezzlement. It is further argued that the crime of embezzlement, if properly charged in this affidavit is a felony and the justice of the peace who tried the appellant has no jurisdiction to try a person for a felony. And finally counsel contend that the whole proceeding is a nullity and that the case should be reversed and the appellant discharged.
With due deference to counsel for the appellant, I do not understand how they conceived the idea that the appellant was charged with embezzlement. I beg to direct the court's attention that this affidavit is based upon section 1171 of Hemingway's Code. Sec. 1172 provides that the violation of this section shall be a misdemeanor which may, of course, be tried in a justice of the peace court. The affidavit charges that the appellant rented one storage battery on the 25th day of September with an understanding that he would return the same not later than October 20th, and after being requested to return the storage battery, he has wilfully and unlawfully failed and refused to do so. Certainly this affidavit sufficiently charges a violation of section 1171 of Hemingway's Code, and may in no wise be construed to be a charge of embezzlement defectively stated and made in a court which has no jurisdiction to try such charge.
Reply brief of Goss Goss, for appellant.
The contention by counsel on behalf of the state is that the affidavit in this case was not drawn or attempted to be drawn under section 1140, Code of 1906 (section 868, Hemingway's 1917 Code) and that the provisions of this section are in no way applicable to the charge as attempted against the appellant herein; but, that the affidavit in this case was made out under section 1171, Hemingway's 1947 Code (chapter 166, Laws of 1926).
Nothing whatsoever was set out in the affidavit to show that the storage battery referred to was a "rental storage battery," or that it was marked so that its identity could be ascertained from any mark, sign or brand thereon. Furthermore, the date, set in the affidavit, at which time the contract of the renting of the storage battery expired was the 20th day of October, A.D. 1926, and the date upon which the said affidavit was sworn to was the 1st, day of November, A.D. 1926. Therefore, the appellant herein had not retained the said storage battery in his possession without the consent of the owner thereof for a longer period of time than eleven days. We would therefore direct this most honorable court's attention to section 3, chapter 166 of the Laws of 1926 wherein the very essence of the offense is that a "rental" storage battery be retained by a person for fourteen days or longer without the consent of the owner.
Appellant was tried in his absence before a justice of the peace, and was convicted and sentenced. On appeal to the circuit court, his appeal was dismissed with writ of procedendo. Upon the attempted execution of this writ, appellant appealed to this court.
The affidavit upon which appellant was tried was made by B.A. Summer, on November 1, 1926, and reads as follows:
"Personally appeared before me the undersigned justice of the peace in and for justice's district No. 5, of the county and state aforesaid, B.A. Summers, who, being by me duly sworn according to law, says on oath, that on or about the 25th day of September, 1926, in justice district No. 5, of said county and state, Henry Ball did rent from him, affiant, one storage battery, with the understanding then and there that he, said Ball, would return the same not later than October 20, 1926, which he, said Ball, has willfully and unlawfully failed and refused to do after being requested to do so, contrary to the statutes in such cases, made and provided, and against the peace and dignity of the state of Mississippi."
This affidavit seems to have been predicated upon chapter 166, Laws of 1926 (section 1171, Hemingway's 1927 Code), which provides as follows:
"It shall be unlawful for any person to retain in his possession for a longer period than fourteen [14] days, or to recharge, except in cases of emergency, without the consent of the owner thereof, any electric storage battery upon which the word `rental,' or any letter, word, mark or character is printed, painted, stamped or branded for the purpose of identifying the said electric storage battery as belonging or being the property of another."
The affidavit quoted above, and made by the owner of the battery, affirmatively shows that the appellant was not required to return the battery before October 20th. He would have to retain the battery for "a longer period than fourteen days" thereafter before such retention would become unlawful under the statute. The affidavit was made, and the prosecution was begun, eleven days after the rental agreement expired.
The prosecution was therefore prematurely instituted. The affidavit was so defective as to charge no offense under the statute.
The judgment will therefore be reversed, and the appellant discharged, without prejudice, against further prosecution.
Reversed, and appellant discharged.