Opinion
No. 28392.
June 9, 1930.
1. INDICTMENT AND INFORMATION.
It is not permissible to charge person with two unrelated crimes, imposing different punishment, in same count of indictment.
2. CRIMINAL LAW. Crime of obstructing justice is not constituent part of crime of removing property subject to lien, and they are not same offense ( Hemingway's Code 1927, sections 1039, 1087).
Code 1906, section 1260 (Hemingway's Code 1927, section 1039), prohibits removal from state of personal property under written pledge, mortgage, or lien with intent to defraud pledgee, etc., and Code 1906, section 1300 (Hemingway's Code 1927, section 1087), relating to obstructing justice, prohibits removal of property which has been levied on by virtue of legal process.
3. INDICTMENT AND INFORMATION. Indictment charging defendants with fraudulently moving out of state truck in sheriff's hands under levy made in landlord's lien proceeding held bad for duplicity ( Hemingway's Code 1927, sections 1039, 1087).
The indictment charged in substance that defendants willfully and fraudulently moved certain Ford truck out of state to place beyond jurisdiction of state, which property was in hands of sheriff under terms of certain levy made by sheriff in landlord's lien proceeding instituted by one T., who held certain landlord's lien on truck, and that removal of truck was with willful and fraudulent intent to defraud T. as well as the sheriff.
APPEAL from circuit court of Simpson county. HON.W.L. CRANFORD, Judge.
A.M. Edwards, of Mendenhall, for appellants.
When an indictment contains but one count, only one offense can be charged, and this charge must be definite and unambiguous.
Montgomery v. State, 107 Miss. 518, 65 So. 572.
An indictment must charge the acts constituting the offense directly, clearly, and precisely, and not argumentatively, inferentially, or by the process of exclusion.
Harkness v. State, 95 Miss. 506, 48 So. 294.
It will be noted in the case at bar that the indictment is in one count, and we submit that there are two offenses attempted to be charged in said indictment, one of which is under section 1039, Hemingway's Code 1927, and the other under section 1087. George T. Mitchell, Attorney-General, and W.A. Shipman, Assistant Attorney-General, for the state.
A statute often makes punishable the doing of one thing, or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing any one of the things. Therefore, the indictment on statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction "and" where the statute has "or" and it will not be double.
1 Bishop Criminal Proc., sec. 436; Coleman v. State, 94 Miss. 860, 48 So. 181; State v. Freeman, 90 Miss. 315, 43 So. 289; State v. Walker, 41 So. 8; State v. Rees, 76 Miss. 435, 22 So. 829; Avant v. State, 71 Miss. 78, 13 So. 881; Jimmerson v. State, 93 Miss. 685, 46 So. 948; Montgomery v. State, 107 Miss. 518, 65 So. 572; Brady v. State, 128 Miss. 575, 91 So. 277; State v. Sam, 154 Miss. 14, 122 So. 101; Vol. 10 of the Enc. of Plea. Prac., p. 490; Miller v. State, 103 Miss. 730, 95 So. 830; Section 26, Mississippi Constitution 1890; Graves v. State, 134 Miss. 547, 99 So. 364; State v. Burton, 145 Miss. 821, 111 So. 300; Stapleton v. State, 130 Miss. 737, 95 So. 86; Pruitt v. State, 116 Miss. 33, 76 So. 761.
Argued orally by A.K. Edwards, of Mendenhall, for appellant, and by W.A. Shipman, Assistant Attorney-General, for appellee.
On a misdemeanor indictment the appellants were jointly tried before a jury, convicted, and thereupon sentenced by the court to pay a fine, and to imprisonment in the county jail, from which judgment they appeal to this court.
We shall confine ourselves to one assignment of error urged by appellants here, to-wit, that the court below erred in overruling the demurrer to the indictment. The attorney-general concedes that the indictment is defective because of duplicity, and in the brief filed by him in this case he reviews, to some extent, the authorities on the subject. The material part of the indictment is in this language:
"Did then and there unlawfully, wilfully and fraudulently move or cause to be moved one certain Ford truck of the value of about two thousand five hundred dollars, a more perfect description of said truck is to the grand jurors unknown, from and out of the state of Mississippi to a place beyond the jurisdiction of this state and into the state of Louisiana which property was then and there in the hands of J.D. Smith, sheriff of said Simpson, by and under the terms of a certain levy so made by said sheriff in a certain landlord's lien proceeding so instituted by R.I. Tullos, who had and held a certain landlord's lien on said truck; that said removal of said truck was with the wilful and fraudulent intent to defraud the R.I. Tullos, as well as the said sheriff."
Section 1039, Hemingway's Code 1927, section 1260, Code 1906, is as follows:
" Larceny — Removing property subject to lien out of state. — If any person shall move, or cause to be removed, to any place beyond the jurisdiction of this state, any personal property which shall at the time of such removal be under written pledge, or mortgage, or deed of trust, or lien by judgment, or any other lien in this state, with intent to defraud the pledgee, mortgagee, trustee, cestui que trust, or creditor, he shall be guilty of a misdemeanor, and, upon conviction, shall be fined not more than one thousand dollars or imprisoned in the county jail not more than twelve months, or both."
Section 1087, Hemingway's Code 1927, section 1300, Code 1906, is as follows:
"Obstructing justice — removing property levied on. — Any person who shall, without authority of law, remove property of his own or of any other person which he knows has been levied on by virtue of any legal process, upon conviction, shall be punishable by fine, not exceeding five hundred dollars, and by imprisonment, not exceeding six months, in the county jail."
It was contended by the appellants, by their demurrer, that there was duplicity in the indictment, in that it sought to charge the crime of removing property subject to a lien from the state under the first statute quoted, and also sought to charge the defendant with obstructing justice by removing property levied on by legal process. This contention, as we have said, is conceded by the attorney-general.
The indictment is subject to criticism, in that it undertakes to charge two offenses in one count, charging one as unambiguously as the other — the former crime is not a constituent of the latter. An intent to defraud the landlord is clearly alleged, and likewise an intent to defraud the sheriff. It alleges a landlord's lien and also alleges the removal of the property which had been levied on by virtue of legal process.
It will be observed that the two statutes quoted above are not related to each other; that the punishment provided for violation thereof is different.
In this state it is not permitted to charge a person with two unrelated crimes, imposing different punishments, in the same count of an indictment, and most surely it cannot be said to be in accord with that simplicity, certainty, and want of ambiguity which is required in criminal procedure.
Let it be remembered that the crime of obstructing justice is not a constituent part of the crime of removing property subject to a lien, nor are they, in a greater or lesser degree, the same offense.
The record in this case not only discloses that the appellants were indicted on a single count containing two distinct crimes, with different punishments, but it clearly appears that the proof took a wide range, attempting to show the appellants to be guilty of both crimes.
Because of its duplicity, the indictment is bad, and the demurrer to it should have been sustained.
The announcement herein made is supported by numerous authorities: Clue v. State, 78 Miss. 661, 29 So. 516, 84 Am. St. Rep. 643; Jimmerson v. State, 93 Miss. 685, 46 So. 948; State v. Brown (Miss.), 28 So. 752; State v. Freeman, 90 Miss. 315, 43 So. 289; State v. Walker, 88 Miss. 592, 41 So. 8; Brady v. State, 128 Miss. 575, 91 So. 277, and State v. Sam, 154 Miss. 14, 122 So. 101.
The court erred in overruling the demurrer to the indictment, and said demurrer is here sustained, and appellant is discharged, this being a misdemeanor.
Reversed, and appellant discharged.