Opinion
No. 34246.
October 28, 1940.
CRIMINAL LAW.
Where alleged operator of liquor nuisance was called by state tax collector to testify in suit for attachment, garnishment, personal judgment, and abatement of premises, he was immune from consequences of law violation and must be discharged (Code 1930, sec. 2000).
APPEAL from the chancery court of Leflore county; HON. R.E. JACKSON, Judge.
W.H. Montjoy, of Greenwood, for appellant.
This case is absolutely identical with the case of Malouf et al. v. Gully, State Tax Collector, 192 So. 2.
Under the Malouf v. Gully case, supra, and under the provisions of Section 1991 of the Mississippi Code of 1930, the appellant was accorded full and complete immunity for the reason that he was required by the appellee and complainant in the lower court to be sworn as a witness and to testify relative to his operation of the place of business under the federal permit for the sale of intoxicating liquors.
The only difference between this case and the Malouf case is that this appellant elected not to appeal from the decree granting a temporary injunction, but has waited and appealed from the final decree.
Denman Everett, of Greenwood, for appellee.
Attorneys of record being without authority to enter an agreed judgment in the lower court in favor of appellant in this case from the present state tax collector, the case is here on appeal from the Chancery Court of Leflore County, Mississippi, from a judgment in favor of the state tax collector in the sum of $1,500.00, the penalty fixed by the statute.
We do not feel that anything could be said in this case that was not set forth in the briefs in the case of Malouf v. Gully, 192 So. 2, and we, therefore, frankly state to the court that the holding of this court in Foad Malouf v. J.B. Gully, State Tax Collector, is controlling in the present case.
This is a suit instituted in the Chancery Court under the provisions of section 2000, Code of 1930, praying for writs of attachment and garnishment, and for personal judgment or decree in favor of the appellee against the appellant, and for abatement of the premises on which it was alleged that intoxicating liquors were kept for sale, and sold in violation of the law. In the course of the trial the attorney for the State Tax Collector called the appellant to the witness stand, and proved by him that he was the owner of the premises in question, in which it was alleged that intoxicating liquors were sold, and that he had a federal license for the sale thereof. After this testimony was in, a motion in arrest of judgment was interposed, claiming immunity from the consequences of the alleged violation of law because of the appellant having been required to testify in the case.
It is claimed by the appellant, and conceded by the appellee, that the case is governed, in substantial particulars, by the case of Malouf v. Gully, State Tax Collector (Miss.), 192 So. 2, in which case it was held that where a party in a similar suit to this was required to testify as a witness he was immune from the consequences of violation of the law in respect to the matters set forth in the bill.
In Hosey v. State, 136 Miss. 5, 100 So. 577, it was held that one under indictment for selling whiskey, having testified before a grand jury to facts relating to the alleged sale, was entitled to immunity from prosecution under section 1792, Code 1906 (section 2106, Hemingway's Code 1917). See other cases cited in Miss. Ann. Dig., entitled Criminal Law, 42.
It follows from these cases that the plea of immunity should have been sustained, and the judgment of the court below is therefore reversed, and the plea of immunity sustained; and the appellant is discharged.
Reversed and rendered.