Opinion
No. 27859.
May 13, 1929. Suggestion of Error Overruled June 10, 1929.
1. CRIMINAL LAW. Failure to require state to elect between counts charging manufacturing liquor and possessing still held harmless, where instructions related solely to count charging manufacturing liquor.
Refusal to require state to elect on which count of indictment it would ask for verdict, where indictment charged manufacturing liquor and possessing still, if error, held harmless, where all instructions were pointed solely at count for manufacturing liquor and therefore verdict must be held to have been in response thereto and not to embrace the other count in indictment.
2. CRIMINAL LAW. Evidence to identify accused as person committing offense is admissible, though proving him guilty of independent crime.
Where commission of crime is proved and identity of person who committed it is in dispute, evidence to identify accused as person who committed crime is not inadmissible solely because it proves or tends to prove that he was guilty of another and independent crime.
3. CRIMINAL LAW. If evidence regarding defendant's presence at still on other occasions was inadmissible when admitted, error was cured when defendant's evidence of alibi was admitted.
In prosecution for manufacturing liquor and possessing still, if evidence regarding defendant's presence at still on other occasions was inadmissible when offered to identify defendant, error, if any, in admitting it, was cured when defendant's evidence of an alibi was admitted.
APPEAL from circuit court of Clarke county, HON. J.D. FATHEREE, Judge.
H.F. Case, of Quitman, and Chas. B. Cameron, of Meridian, for appellant.
Assignment No. 1 brings under review the error of the lower court in permitting the state under an indictment in two counts charging the unlawful manufacture of intoxicating liquor, and having still in possession, to give in evidence over the objection of the appellant proof of other offense. Parkinson v. State, reported in 110 So. 513; Lowe v. State, 127 Miss. 340, 90 So. 78; Cage v. State, 105 Miss. 326, 62 So. 358; Collins v. State, 99 Miss. 52, 54 So. 666; Cook v. State, 81 Miss. 146, 32 So. 312; Smothers v. City of Jackson, 92 Miss. 327, 45 So. 982; King v. State, 66 Miss. 502, 6 So. 188.
We understand the law to be that where two felonies are charged in the indictment in separate counts, and where the two felonies differ materially, both in their elements and their punishments, that the court below should have either sustained a demurrer to the indictment, if offered in whole or to one count, or have compelled the state to elect on which count the appellant would be tried.
This rule has been announced in the case of McEwen v. State, reported in 96 So. at page 690, and this case cites the case of State v. Rees, 76 Miss. 435, 22 So. 829.
Broom Gober, of Jackson, for appellant.
"Statutory offenses defined by different statutes consisting of different acts or omissions and subject to different penalties for their violation cannot be joined in one indictment." 31 C.J. 783.
"The general rule is that the issue on a criminal trial must be single, and that the testimony must be confined to the issue, and that on trial of a person for one offense the prosecution cannot aid the proof against him, by showing that he committed other offenses." King v. State, 66 Miss. 502, 6 So. 189.
Whart. Crim. Ev. 194; list Bishop Criminal Procedure, sections 1120-24.
In the case of Lowe v. State, 127 Miss. 340, 90 So. 78, the court held that section 2252 of Hemingway's Code 1927, must be strictly construed and applied only to the sale of intoxicating liquor. In this case the court cited Page v. State, 105 Miss. 536, 62 So. 360; Collins v. State, 99 Miss. 52, 54 So. 666; Cook v. State, 81 Miss. 146, 32 So. 312; Smothers v. Jackson, 92 Miss. 327, 45 So. 892; Kerney v. State, 68 Miss. 332, 8 So. 292.
Parkinson v. State, 110 So. 513.
James W. Cassedy, Jr., Assistant Attorney-General, for the state, appellee.
It is argued by counsel for appellant that it was error to indict the appellant on two distinct and separate felonies, even in two counts. In answer to this, I direct the court's attention that there is no demurrer to this indictment, and that there was no motion to quash made. In the absence of either of these pleadings, this argument cannot avail in this court.
It is next argued that the court erred in failing to require the state to elect on which count in the indictment that it would proceed upon.
As shown by the record of the testimony taken, the state had elected to proceed upon the charge of manufacturing intoxicating liquor.
It is argued by counsel for appellant that in view of the fact that there was either no evidence, or no sufficient evidence to support a conviction of the possession of a still, as charged in the second count of the indictment, that the peremptory instruction which was requested, as shown by page 126, should have been granted, in so far as the possession of the still was concerned. It is argued that the refusal of this instruction was especially erroneous, because of the fact that a general verdict of guilty as charged was returned by the jury, which it is argued is in effect a verdict of guilty of the possession of a still and of the manufacture of intoxicating liquor.
In the cases of Jones v. State, 67 Miss. 111. and Cannon v. State, 75 Miss. 364, this court discussed the question here involved.
In the case at bar, there is no question, but that the appellant was tried for the manufacture of intoxicating liquor, and that the second count, which charged him with the possession of the still, was not referred to and a conviction was not asked on that charge. These two charges relate to different crimes, but which are not in their nature separate crimes for, as in this case, the appellant could have been in possession of the still and engaged in the manufacture of intoxicating liquor at one and the same time. It is also apparent that where these conditions exist and where the punishments for both crimes are the same, that a general verdict of guilty is not error, and only tends to show that if the verdict is broader than a finding of guilty as to the manufacture of intoxicating liquor, that it also includes a verdict of guilty as to the possession of the still. However, the appellant was not sentenced for the possession of a still, and therefore, has no right to complain.
The indictment on which the appellant was tried contained two counts, one charging him with manufacturing intoxicating liquor and the other with being in possession of a still. The jury returned a general verdict of guilty as charged, and the judgment of the court recites that it is thereupon considered by the court and so ordered that for such "offense of manufacturing liquor, the defendant, Elam Norris, be and he is hereby sentenced to serve a sentence of two and one half years in the state penitentiary."
The court below overruled a request by the appellant that the state be made to elect on which count of the indictment it would ask for a verdict. It will not be necessary for us to determine whether or not this ruling was correct ( Buford v. State, 146 Miss. 66, 111 So. 850), for, if erroneous, the appellant was not prejudiced thereby. The instructions both for the state and defendant were pointed solely at the count for manufacturing liquor, and therefore the verdict of the jury must be held to have been in response thereto, and not to embrace the other count in the indictment. Hatten v. State, 150 Miss. 441, 116 So. 813.
After proving that the appellant was seen at a still manufacturing intoxicating liquor therewith, the state proved, over the appellant's objection, that the appellant had been seen at the still on three other occasions. The appellant denied being at the still at the time he is charged with having manufactured the liquor, and attempted to prove an alibi. The ground of the objection to this evidence is that it tends to prove, and we will assume, solely for the purpose of the argument, that it does tend to prove, the commission of other offenses by the appellant. The commission by some one of the crime with which the appellant is here charged was proven, but the identity of the person who committed it was in dispute. The evidence that the appellant was seen at the still on other occasions tended to corroborate the evidence that he was there and manufactured the liquor on the occasion here in question, and the rule is that "where the commission of a crime is proved" and the identity of the person who committed it is in dispute, "evidence to identify accused as the person who committed it is not to be excluded solely because it proves or tends to prove that he was guilty of another and independent crime." 16 C.J. 589. This rule was recognized in King v. State, 66 Miss. 502, 6 So. 188; Dabney v. State, 82 Miss. 252, 33 So. 973; Collier v. State, 106 Miss. 613, 64 So. 373; Hurd v. State, 137 Miss. 178, 102 So. 293. Parkinson v. State, 145 Miss. 237, 110 So. 513, is not in conflict herewith. In that case the evidence disclosed that whisky was being manufactured by one Roberts on a particular occasion. Over the objection of the defendant, Roberts was permitted to testify "to the operation of the still on several occasions" without in any way connecting the defendant therewith. Another witness was permitted to testify that "he had been to the still in company with the defendant," and that they drank liquor there. The identity of the person, Roberts, who committed the crime for which the defendant was being tried, was not in dispute, and the evidence admitted over the defendant's objection in no way tended to connect him therewith.
It may be that the appellant's presence at the still on other occasions was not competent when offered, but any error, if any, committed in admitting it, was cured when defendant's evidence of an alibi came in. There is no merit in the other assignments of error.
Affirmed.