Opinion
No. 37643.
October 9, 1950.
1. Indictment — affidavit — nature and cause of accusation — plain statement.
It is the constitutional right of the accused to be informed of the nature and cause of the accusation against him, and to a plain statement thereof.
2. Indictment — affidavit — essential elements of the offense.
An affidavit charging an offense must set forth the essential elements of the offense, and if the facts alleged therein do not constitute such an offense within the law on which the accusation is based, or if the facts alleged may be all true and yet constitute no offense, the affidavit is insufficient.
3. Indictment — affidavit — unlawful sale of beer.
In order to make the sale of beer unlawful it is necessary that an election shall have been held in the particular county and as a result thereof the sale of beer shall have been prohibited therein, wherefore no offense is presented by an affidavit which attempts to charge the unlawful sale of beer, but which omits the allegation that as a result of an election duly held in the county the sale of beer therein had been prohibited, and the omission is not aided by proof that in fact such an election had been held with prohibitory effect. Sec. 10207, et seq. Code 1942.
Headnotes as approved by Holmes, C.
APPEAL from the circuit court of Jefferson Davis County; J.C. SHIVERS, Judge.
Martin Farr, for appellant.
It is submitted that the matter raised here by demurrer is jurisdictional and may be raised at any time.
The affidavit charged appellant with violating a statute which had been repealed and thus failed to charge him with the commission of any crime; and the affidavit does not charge that any election on wine and beer was ever held in Jefferson Davis County.
The Court will note that this affidavit charges appellant with selling "intoxicating beverage, to-wit, beer". This affidavit is drawn under Sec. 2613 Code 1942. The affidavit does not state the alcoholic content of the beer allegedly sold, nor does the proof pretend to show, anywhere, any alcoholic content of the beer or home-brew.
The Court will note, of course, that Chap. 171, Laws 1934, repealed Sec. 1974, Code 1930, (Sec. 2613 Code 1942), as to wine and beer of alcoholic content of not more than 4% by weight. Sec. 10207 Code 1942, formerly a part of Chap. 171, Laws 1934, provides: "Alcoholic content — It shall hereafter, subject to the provisions hereinafter set forth, be lawful, in this state to transport, store, distribute, possess, receive, and/or manufacture wine and beer of an alcoholic content of not more than four percentum by weight."
Sec. 10208, Code 1942, a part of the same Chap. 171 Laws 1934, provides for an election by which a majority of the electorate may vote a county "dry" as to wine and beer. Also please note Sec. 10229 Code 1942 part of the same 1934 statute is in these words: "Laws repealed — All laws and parts of laws in conflict or inconsistent with this act are hereby repealed, but only insofar as such laws and parts of laws are in conflict with this act."
It will be seen that Sec. 2613 Code 1942 by Chap. 171, Laws 1934, was repealed as to wine and beer of the specific alcoholic content, and since no alcoholic content was charged in the affidavit nor even attempted to be proved, there can be no conviction. However, it may be claimed by the State that there is evidence in the record tending to show that Jefferson Davis County held an election and voted wine and beer out. The Court will note that there is no such allegation made in the affidavit; and if Jefferson Davis County voted wine and beer out there could be no proof then made of this essentially vital fact unless it were alleged in the affidavit.
Attention of the Court is called to the fact that Sec. 1790 Code 1906 with reference to courts taking judicial notice of local option elections, under the "Dram Shop Chapter", was expressly repealed by Chap. 115 Laws 1908, putting into effect state-wide prohibition, and we do not find any law enacted since whereby courts may take judicial notice of local option elections. It was expressly held by this Court that prior to the enactment of Sec. 1621 Code 1872, which is the same and corresponding section to Sec. 1790 Code 1906, that courts could not take judicial notice of local option elections and that they must be alleged fully and shown by proof. The cases we cite hereinbelow were decided under that rule. Norton v. State, 65 Miss. 297; West v. State, 70 Miss. 598, 12 So. 903; State v. Vandenberg, 28 So. 835; McDonald v. State, 68 Miss. 728; Laughridge v. State, 3 So. 667 (Miss.); State v. Quinn, 37 So.2d 821 (La.).
In Crosby v. State, 191 Miss. 173, 2 So.2d 813, our Court says in headnote: "The statute authorizing amendment of affidavit to conform to the proof was inapplicable where indictment did not contain statement regarding ownership of building burglarized. Sec. 1289 Code 1930."
Secs. 2449, 2535 Code 1942 do not apply here for the reason these rights, above referred to, are constitutional rights and they cannot be waived. Newcombe v. State, 37 Miss. 383.
It may be contended by the State that under Secs. 2449 and 2535 Code 1942 the defendant should have filed a demurrer. It is most respectfully submitted that defendant waived no rights by not filing a demurrer, for in a case where the affidavit or the indictment omits to charge a vital element of the alleged crime sought to be charged the defendant there waives none of his rights by failure to demur. If the above sections mean to hold that a defendant waives his right by not demurring in such a case, then it is most respectfully submitted that said sections violate defendant's rights under Mississippi's Bill of Rights.
"The right secured to the accused by the 10th section of the 1st article to the Constitution of this State `to demand the nature and cause of the accusation against him' cannot be waived or surrendered by him and hence if the indictment does not contain such a description of the the offense as to notify the accused of the `nature and cause of the accusation against him', it is a nullity and may be objected to at any time." Newcombe v. State, 37 Miss. 383.
There is no difference in an indictment and an affidavit in this respect. If there is, then Sec. 26 applies only the indictments; but our Constitution makers had no such thing in mind.
George H. Ethridge, Assistant Attorney General, for appellee.
It will be noted that the affidavit filed by Mr. Pope with the justice of the peace was not demurred to and Sec. 2449 Code 1942 requires all objections to an indictment for a defect appearing on the face thereof shall be taken by demurrer.
In Wampold v. State, 170 Miss. 732, 155 So. 350, it was held that where an affidavit charging an offense is defective on its face, demurrer is necessary to reach the defect, and if the defect is dehors the record, motion to quash and evidence to support motion is necessary to reach the defect. In other words, the objection to an affidavit must be taken advantage of by demurrer and not otherwise; and before the issuance of the venire in capital cases and before impaneling the jury in other cases, and as stated, there was stated no demurrer to the affidavit, which is the only way defects may be taken or the question raised, and the appellant failing to demur to the affidavit, it must be treated as though it contained all necessary elements of the charge of the crime.
Sec. 2535 provides that on appeal to the circuit court in a criminal case, the judgment or sentence of the justice of the peace, or municipal courts, amendments shall be permissible, and the affidavit may be amended in the circuit court so as to charge the offense intended to be charged.
It was held that the defect in the affidavit on which the defendant had been convicted by a magistrate can be amended in the circuit court under this section. Triplett v. State, 80 Miss. 379, 31 So. 743; Brown v. State, 81 Miss. 137, 32 So. 952.
In Sullivan v. State, 150 Miss. 542, 117 So. 374, it was held that the provision that objections to indictments or affidavits for defects appearing on the fact thereof must be taken by demurrer and the section applies to an affidavit, and an affidavit not demurred to having defects on the face will be treated as sufficient. These cases and others fully establish that an affidavit attempting to charge one with crime but which is defective but not demurred to is sufficient and will support a conviction. Had a demurrer been interposed to the affidavit it would, of course, have been promptly amended so as to properly charge the offense, and a defendant cannot sit silent in such case and then raise the question on appeal to the Supreme Court. See also Cannon v. State, 140 Miss. 217, 105 So. 501.
The case of Hall v. State, 199 Miss. 560, 24 So.2d 780, did not involve the application of the Code sections (2449, 2535), and consequently does not affect the application of the said statutes requiring demurrer to raise the question and authorizing amendments in the circuit court if a demurrer was interposed. The question involved in Hall v. State was whether or not the provisions of 2644, 2652 and 10207 had to negative the exceptions contained in the statute and did not deal with the questions raised here.
The contention of the appellant that the affidavit was void is without merit because the statute requires the attention of the Court be called to the defect appearing on the fact of an affidavit by demurrer, and not otherwise, and Sec. 2535 constitutionally authorizes the amendment of the affidavit where the defect is challenged by a demurrer.
Appellant was convicted in a justice of the peace court of Jefferson Davis County on an affidavit charging that he did "unlawfully and wilfully sell intoxicating beverage, to-wit, beer, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi". He appealed to the circuit court where he was again convicted, and from this latter conviction he prosecutes this appeal.
Numerous grounds are assigned for the reversal of the judgment of conviction, but in view of our conclusion we consider only the contention of appellant that the affidavit charges no offense and is therefore insufficient to support the conviction.
(Hn 1) It is the constitutional right of the accused to be informed of the nature and cause of the accusation against him; hence he is entitled to a plain statement of the charge against him. (Hn 2) It is fundamental that the affidavit must set forth the essential elements of the offense sought to be charged. If the facts alleged do not constitute such an offense within the terms and meaning of the law or laws on which the accusation is based, or if the facts alleged may all be true and yet constitute no offense, the affidavit is insufficient. 27 Am. Jur., page 621. (Hn 3) Chapter 171 of the Laws of 1934, as amended by Chapter 224 of the Laws of 1942, Section 10207 et seq., Code of 1942, legalizes the sale of beer of an alcoholic content not exceeding four per cent by weight, unless, as the result of an election duly and lawfully held for such purpose, the sale of beer is not permitted in the county in which the sale is alleged to have been made. The appellant may have sold beer of an alcoholic content not exceeding four per cent by weight, and yet he was guilty of no offense unless, as a result of an election duly and lawfully held for such purpose, the sale of beer was not permitted in the county alleged. Therefore, the facts alleged in the affidavit may all be true, and yet the appellant be guilty of no offense. It was essential to the sufficiency of the affidavit that it allege not only the sale of beer, but that as a result of an election duly and lawfully held for such purpose, beer was not permitted to be sold in the county in which the sale occurred. It is true that the proof shows that such an election had been lawfully held in Jefferson Davis County, and that as a result thereof the sale of beer was not permitted in said County, but it was necessary that the affidavit allege this essential element of the offense, and the failure of the affidavit so to do constitutes an omission of an essential element of the offense and renders the affidavit insufficient to support the conviction. This Court held in Loughridge et al. v. State, 3 So. 667, that an affidavit for violation of a local option law will not support a conviction where it fails to charge that a local option act was in effect in the county where the offense was committed, although the evidence shows the law to have been in operation in such county.
We are accordingly of the opinion that the affidavit on which the appellant was convicted charges no offense and is insufficient to support the conviction. The judgment of conviction is therefore reversed and the appellant discharged and the case remanded without prejudice to the right of the State to bring against the appellant a charge founded on a proper affidavit or indictment.
Reversed and appellant discharged and case remanded.
The above opinion is adopted as the opinion of the Court, and for the reasons therein indicated the judgment of conviction is reversed and appellant discharged and the case remanded without prejudice to the right of the State to bring against the appellant a charge founded on a proper affidavit or indictment.