Opinion
No. 35217.
October 11, 1943.
1. CRIMINAL LAW.
A conviction as a second offender of unlawful possession of intoxicating liquor under the statute pertaining to intoxicating liquor cannot be predicated upon a prior conviction under a city ordinance (Code 1930, sec. 1974(b)).
2. CRIMINAL LAW.
Where finding that defendant was a second offender against statute prohibiting unlawful possession of intoxicating liquor could not be sustained, under rule that a defendant is entitled to be tried only upon a proper charge and, if convicted, sentenced in accordance therewith, mere fact that jury necessarily found defendant guilty of unlawful possession and defendant was in any event punishable was insufficient to permit judgment and sentence to stand (Code 1930, sec. 1974(b)).
APPEAL from circuit court of Lincoln county, HON. J.F. GUYNES, Judge.
J.H. Garth, of Hazlehurst, and J.W. Cassedy, of Brookhaven, for appellant.
The judgment of the circuit court in the present case shows beyond any question that the sentence imposed was for a second conviction under Section 1974, Code of 1930.
The conviction for a second offense was improper because the conviction for the first offense was for a violation of the ordinance of the City of Brookhaven in the Police Justice Court.
Williams v. State, 125 Miss. 347, 87 So. 672; Gaston v. State, 107 Miss. 484, 65 So. 563; Boroum v. State, 105 Miss. 887, 63 So. 297, 457; Millwood v. State, 190 Miss. 750, 1 So.2d 582; Brewsaw v. State, 168 Miss. 371, 151 So. 475.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
As to the amended affidavit charging a second offense, paragraph (b), Section 1974, Code of 1930, the court held in the case of Millwood v. State, 190 Miss. 750, 1 So.2d 582, that the indictment must charge and proof must show that accused had been convicted of a first offense, and that after conviction of a first offense he committed a second offense. Therefore, it follows in the instant case that the burden was upon the state to show that the appellant had been previously convicted for violation of paragraph (a), Section 1974, Code of 1930.
From a reading of the judgment in this case, I submit that it cannot be said, with any degree of certainty, whether appellant was tried for the violation of a city ordinance or for a violation of a state law. As to the confusion of this judgment, see the case of Wright v. City of Belzoni, 188 Miss. 334, 194 So. 919.
Counsel for appellant, on cross-examination of the police justice Burt, attempted to introduce the affidavit and warrant of the first conviction in order to show that the appellant was tried for the violation of a city ordinance. Objection was made by the state and sustained by the court. Counsel made his record in the absence of the jury. It is submitted to the court that if the evidence of the affidavit and warrant objected to by the district attorney and sustained by the court was admissible to clarify the judgment, then this evidence would clearly show and indicate that the appellant was tried and convicted for the violation of an ordinance of the City of Brookhaven. The general rule is that a judgment imports absolute verity on its face but in this case it is submitted that the judgment does not show whether it was for a violation of an ordinance or a state law.
Appellant was convicted, as a second offender, of the unlawful possession of intoxicating liquor, under Code 1930, Section 1974(b).
The only assigned error we need here notice is the refusal of the trial court to sustain the defendant's motion for a peremptory instruction that he could not be found guilty of a second offense. Regardless of the sufficiency vel non of the amended affidavit, it was developed in the evidence that the first offense which was made a predicate for the invocation of Section 1974 (b) was a prosecution and conviction under an ordinance of the City of Brookhaven. A conviction as a second offender under the statute referred to may not be predicated upon a prior conviction under an ordinance.
While the jury necessarily found the defendant guilty of the subsequent offense and therefore in any event punishable thereunder, we can not allow the judgment and sentence to stand, as being inconsistent with the views herein expressed. The defendant is entitled to be tried only upon a proper charge and, if convicted, sentenced in accordance therewith. Millwood v. State, 190 Miss. 750, 1 So.2d 582; Singleterry v. State (Miss.), 4 So.2d 234 (not reported in State Reports).
The affidavit for search warrant and the warrant issued thereunder are found sufficient.
Reversed and remanded.