Summary
Appeal from circuit court of ¡Simpson county.
Hon. W. H. Hughes, Judge.
Ascus Williams was convicted of unlawfully selling intoxicating liquors, and he appeals.
We concede that this defendant was guilty of selling-whiskey on this occasion as shown by the record. We concede that on two former occasions he pleaded guilty to 'selling whiskey for two separate offenses and was fined fifty dollars and five days in jail in each. But we contend that there was no punishment and convictions under section 2086 of Hemingway’s Code for.the first and second offense; that there is no. legal proof of any convictions whatever for former offenses. Section 727 of Hemingway’s Code require the circuit court to keep minutes of its proceedings. The circuit court shows by its dockets and appeal, papers therein on appeal of the two convictions in the justice court, which made the justice court convictions inoperative, and therefore the minutes of the circuit court must speak dismissal with writs of procedendi or convictions ckrrying punishments under 2086 before the third conviction may be had. In the case of Childress v. Carley, 92 Miss. 571, this court has spoken as to the sanctity and verity of circuit court minutes. We presume that the state’s counsel would not contend seriously that there must not be a minute record of the disposal of these cases. He alleges, however, that the records show that one of these cases were dismissed to the mayor’s court with a writ of pro'cedendo. This record is not the minute record, however, the state’s case fails because it only shows one conviction. Counsel cites the statement of the lower court that the payment of the fines by the defendant operated as a dismissal. The answer to that is twofold; first, the court below excluded evidence showing the true facts about this matter; second, the evidence with reference to this payment was incompetent and illegal.
Counsel contends there was no error in overruling the demurrer and cites the Robinson case. In the Robinson case the indictment set forth in detail the two former acts of the defendant, which of course sufficiently charged the crime. But here two former sales in courts of competent jurisdiction were not alleged, but merely alleged that he had been convicted of two former offenses of like character, without setting forth any detail to show the crime.
Counsel argues that competent proof has been introduced. He cites the evidence of Judge Kennedy. We think the trouble with Counsel’s argument is that he has overlooked paragraph (c) of section 2086, of Hemingway’s Code, which provides that to maintain the third conviction there must have been two former convictions, hereunder. It does not say two former convictions, but it says two former convictions and punishments, and the convictions and punishments must be under this statute. Counsel argues that the answer to this proposition is that he was tried for both offenses on the same day and was not confronted with a prisoner who had already been charged under paragraph (a), and not .having an affidavit made under paragraph (b) could, therefore, not convict and punish under paragraph (b). It seems to us that it would have been a very small matter after the first conviction to have had the affidavit amended so as to bring the case under paragraph (b). We think that until there is a conviction and punishment shown under paragraph (b) there can certainly be none under paragraph (c). We think again that counsel’s contention helps us here for the reason that he contends- himself there has been no conviction under paragraph (b) but both of the former were under paragraph (a), which if true still shows there is no conviction under paragraph (b) and therefore can.be none under paragraph (c).
Inasmuch as there has been no attempt in either of the two other trials, to prosecute under section 2086, of Hemingway’s Code we think this case should be settled as was the case of Britton v. State, which is squarely in point.
In that case there was an attempt to convict for the second offense under chapter 214 of the Acts of 1912. This court held that because the act was committed prior to 1912 that section 1573 of the Code of 1906, which is section 1335 of Hemingway’s Code, kept alive the Acts of 1908, chapter 115, section 1746, under which the defendant could be punished as a first offense and this should be done although the Act of 1912 is not applied. This is exactly the attitude here; the convictions in the justice court relied on were no attempts to prosecute under section 2086 of Hemingway’s Code and therefore under section 1335 of Hemingway’s Code chapter 115 of Acts 1908, applied to the first convictions and they should be held as convictions under that act, should they be construed as competent proof in the case at all.
Counsel contends that the state’s instruction 'was correct, that it followed paragraph (c) of section 2086 of Hemingway’s Code which is as follows: '“By imprisonment in the state penitentiary not less than one year nor more than five years, if the conviction is for an offense under this act committed after the person convicted has been convicted and punished for two former offenses hereunder.”
The instruction for the state did not require the jury to believe that he had been convicted and punished for two 'former offenses under the act. The state did not show that he had been convicted and punished for two former offenses under the act, but merely charged the. jury that if he had-been convicted of two offenses of like character it was sufficient to convict him on this charge.
We submit to the court that the appellant has received no semblance of a fair trial for the crime for Avhich he has been convicted, and although he be a negro and has sold whiskey before, we think that justice and fair play under our law require punishment for crime charged and not convictions on general principles.
Selling liquor is a violation of section 2086, Hemingway’s Code (chapter 214, Laws of 1912). Therefore it was proved that the defendant had twice before been convicted, sentenced and punished for a violation of this statute. His punishment consisted of a fine of fifty dollars and cost and five days’ imprisonment in each case until same should be paid, for each former conviction. The fines and costs Avere paid by him and he, therefore, underwent the punishment imposed upon the convictions for two separate offenses prior to the offense charged in the indictment in this case.
It is contended that although the defendant Avas proved to have been convicted tAlice of selling liquor prior to the offense charged in the indictment, he was not proved to have twice violated the above statute. It is said that the two former convictions and sentences indicate that they Avere not for a violation' of the above statute since both fines were fifty dollars- and costs which would indicate a first offense covered by paragraph a of the statute. The answer to this contention is obvious. The defendant was tried by Justice of the Peace Kennedy for two separate offenses committed at different times. There were two affidavits and the defendant Avas tried separately on each affidavit but on the same day. At the time these trials took place, Justice of the Peace Kennedy could not have fined the defendant under paragraph b of the statute. He was not confronted Avith a prisoner who had been tried, convicted and punished for retailing liquor. He was confronted with a prisoner against whom two affidavits had been made, charging two separate offenses for which the defendant had never been tried and convicted. His honor Avas eminently correct in assessing a fine of fifty dollars and coáts in each case against the defendant, proceeding-under paragraph a.
But, when the defendant was indicted by a grand jury, based upon a violation of the statute which occurred on August 12, 1919, the circuit court was confronted with a prisoner who had been previously convicted of two like offenses in the justice of the. peace court of W. T. Kennedy.
Paragraph c of the statute reads as follows: “By imprisonment in the state penitentiary not less than one year nor more than five years, if the conviction is for an offense under this act committed after the person convicted has been convicted and punished for two former offenses hereunder. (Laws of 1912, ch. 214, in effect March 8, 1912.)”
Under this statute it was, therefore, proper for the grand jury to indict the defendant for a third offense. And it was proper, upon conviction, for the circuit court to sentence the defendant in accordance with this paragraph of the statute.
Instructions: The appellant complains of the instruction given in behalf of the state which appears- at page 59 of the record. There is nothing wrong with this instruction. It .is* based squarely upon the law and the facts of the case. . It follows paragraph c of section 2086, Hemingway’s Code (chapter 214, Laws of 1912) a more proper instruction in the case could not be imagined.
The appellant complains of the refusal of the court to grant three instructions for the defendant which appear at pages 59, 60 and 61 of the record. A reading of these instructions will instantly reveal their lack of propriety.
As to the first refused instruction it is only -necessary to say that it was not incumbent upon the state to prove two former convictions in the circuit court. It was sufficient if two former convictions in the justice of the peace court were proved, and these convictions were actually proved.
As to the second refused instruction, it will be sufficient to say that it made no difference whether or. not the two appealed cases from the justice of the peace court to the circuit. court had been ■ disposed of. It was only necessary to show that the defendant had been twice before convicted and punished, and this was shown. As to the third refused instruction it need only be said that it was not imperative that the state prove that the punishment for the two former convictions had been carried out according to the, judgment of the court.- It was only necessary to prove that the defendant had twice before been convicted and punishment inflicted by the court. Not only was this shown, but it was shown further that the punishment inflicted by the court had been carried out in each of the former convictions before the justice of the peace. Moreover, all three of these refused instructions attempt to submit to the jury questions of law and not questions of fact. Questions of law should not be submitted to the jury, as this court well knows.
Counsel for appellant cites the following cases to sustain his several contentions: Britton v. State, 53 So. 530; Boroum v. State, 63 So. 297; Gaston v. State, 65 So. 563.
In the Britton case the defendant was convicted and sentenced as for a third offense, under chapter 214, Laws of 1912. The indictment did not charge the third offense. The court, therefore, held that the defendant could not be convicted of a third offense, since it was not charged in the indictment. This case has no bearing upon the issues in the case at bar.
In the Boroum case the defendant was convicted and sentenced for a second offense under chapter 214, Laws of 1912. The evidence developed the fact that the first offense charged in the indictment had been prior to the enactment of the said chapter 214, Laws of 1912. The court, therefore, properly reversed and remanded the case for a proper sentence as for a first instead of a second offense under the said chapter.
The Gaston case is practically identical with the Bor-oum case. None of these cases constitute guiding authority for the court in the case at bar. The indictment in the instant case charges a third offense sufficiently and properly. The evidence undoubtedly proves a third of-fence as charged in the indictment.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
