Opinion
No. 38343.
May 5, 1952.
1. Indictments — intoxicating liquor — third offender.
An indictment for violations of the prohibition laws which charges conviction for such offenses on two previous occasions but does not specify that the second conviction was of the accused as a second offender, and does not presently charge that the accused is a third offender under the statute, is insufficient to uphold a conviction of felony as a third offender, since such an indictment merely charges violations on repeated occasions and not as repeated offenses differing in grade. Sec. 2613 Code 1942.
2. Criminal law — suspending sentence — sentence in vacation.
A suspended sentence may be revoked in vacation but a sentence may be imposed only in term time, so that when the judgment on a plea of guilty was that "the court defers the matter of imposing sentence during good behavior", there was no suspended sentence but a failure to impose any sentence at all with the result that the court retained jurisdiction over the defendant to pronounce sentence at a later term, to which the case is continued for that purpose. Sec. 2543 Code 1942.
3. Habeas corpus — prisoner convicted but not sentenced.
Where a defendant has been convicted but not sentenced as outlined in the foregoing headnote, he is properly in the custody of the sheriff at least to the extent that he is to be made answerable to the court in further proceedings and his release on habeas corpus without bail will be denied.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Prentiss County; RAYMOND T. JARVIS, Judge.
Floyd W. Cunningham, for appellant.
I. The circuit court lost all further jurisdiction in criminal cause Number 5380 when it accepted the plea of guilty to a felony indictment by deferring the matter of imposing sentence pending good behavior of appellant.
There was no constitutional or statutory authority for such a procedure as was adopted in this case in February of 1947 or at any time since.
We do not here question the power of the Legislature to authorize the continuance of a felony case, after plea or verdict of guilty, to the next regular term and thence from term to term for later sentence for valid reasons, for we are not concerned with that problem in the present case. It is questionable whether even the Legislature could authorize the procedure undertaken in this case — the indefinite postponement of sentence pending good behavior. 16 C.J.S. 497; Vinson v. State, (Ala.), 79 So. 316; State v. Kirby, 96 Miss. 629, 51 So. 811.
We have been unable to find any case from this Court which would be completely decisive on this particular question. However, there are cases within this jurisdiction in which this Court has dealt with closely related questions. In their chronological order those cases are: Gibson v. State, 68 Miss. 242, 8 So. 329; Fuller v. State, 57 So. 6; Hoggett v. State (3 cases) 57 So. 9; Fuller v. State, (On sugg. of error), 100 Miss. 811, 57 So. 807; Hoggett v. State (2 cases) (On sugg. of error), 101 Miss. 269, 272, 57 So. 811, 812; Crump v. Trapp, 36 So.2d 459.
The entry of the order in the present case whereby the circuit court attempted to defer indefinitely the imposition of sentence pending good behavior was a judicial invasion of the executive authority of this state without warrant in our Constitution and without legislative sanction. Secs. 1 and 124, Mississippi Constitution of 1890.
This Court held in State v. Jackson, 143 Miss. 745, 109 So. 724, that a statute denouncing wife desertion or nonsupport which provided suspension of sentence upon the convict giving bond was an invasion of the constitutional power of the executive to pardon given to that branch by Sec. 124.
There is no question in our mind on the power of the circuit court to suspend imposition of sentence in a felony case. It simply has no such power and its attempt to do so here was utterly void.
II. The circuit court lost all jurisdiction by the unreasonable delay from the plea of guilty in criminal cause Number 5380 on February 18, 1947, until the time it attempted to impose sentence more than four years later on April 18, 1951.
In the case of Smith v. State, 121 N.E. 829, 3 A.L.R. 999, the Supreme Court of Indiana held that less than ten months delay in imposing sentence after plea of guilty, with two terms intervening, deprived the court of jurisdiction to sentence..
At 3 A.L.R. 1003, et seq., there is an extensive annotation covering the subject of loss of jurisdiction by delay in imposing sentence. We rely strongly upon part II of this annotation and the authorities listed and discussed there.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
The Attorney General raised the question whether the indictment was fundamentally valid, conceding that it was not, and submitted also as a doubtful question whether the court had power to impose a felony sentence in vacation, and stated that the record presented serious questions in which the public at large has an interest and which therefore should be considered and decided. He cited the following: —
Brewsaw v. State, 168 Miss. 371, 151 So. 475; Cooper v. State. 175 Miss. 718, 168 So. 53; Crump v. Trapp, 36 So.2d 459; Fuller v. State, 100 Miss. 811, 57 So. 806; Gibson v. State, 68 Miss. 242; Hoggett v. State, 57 So. 9; Kittrell v. State, 201 Miss. 514, 29 So.2d 313; O'Bannion v. Greenville, etc., Co., 159 Miss. 68, 132 So. 807; Outlaw v. State, 43 So.2d 661; McGowan v. State, 200 Miss. 270, 25 So.2d 131; Millwood v. State, 190 Miss. 750, 1 So.2d 582; Mason v. Cochrane, Sheriff, 209 Miss. 163, 46 So.2d 106; Riley v. State, 204 Miss. 562, 37 So.2d 768; Trivilion v. State, 195 Miss. 308, 5 So.2d 285; Secs. 1649, 2541, 2613, 2542, 2543 Code 1942.
Here involved is a habeas corpus proceeding in which the petition was denied by the circuit judge.
Appellant was indicted in February 1947 as a third offender under Code 1942, Section 2613, providing graduated penalties for successive violations of our law prohibiting the possession, and sale of, and other traffic in, intoxicating liquors. To the charge appellant pleaded guilty and the court entered a judgment and order thereon which set forth the plea of guilty and that "the court defers the matter of imposing sentence pending good behavior of defendant."
In September 1950, on motion of the prosecuting attorney, there was a hearing, upon due notice, upon the issue whether, due to alleged repeated offenses, the court should pronounce sentence. After such hearing, which was set and heard in vacation, the judge imposed a sentence of two years confinement in the state penitentiary. Thereupon, appellant filed his petition for discharge under writ of habeas corpus.
The indictment was in three parts, the first of which alleged unlawful possession of intoxicating liquors in March 1937, and a conviction thereof. The second part set out such conviction and alleged that in June 1941 the appellant was again convicted of a similar offense. The third part alleged that after the two prior convictions, he did, in December 1946, have possession, as aforesaid.
(Hn 1) The indictment does not properly charge a second or third offense as such. This is necessary. It is not enough that the accused may have been theretofore convicted of the possession of liquors; he must be charged and convicted as a second and third offender. The indictment here recites merely former convictions as for first offenses. A past history of successive offenses is not a proper part of a charge of mere possession, even though it may be a relevant consideration in the mind of the judge in fixing a proper sentence. So long as succeeding violations under this section are charged merely as repeated occasions and not as repeated offenses, these former incidents are but surplusage. One may be convicted a score of times and yet be punishable only under paragraph (a) of the Act. To be convicted as a second offender under paragraph (b), or as a third offender under (c), he must be charged as such. These distinctions are saved from any confusing subtleties by underlining the fact that each paragraph is a separate crime, with a separate penalty. The indictment states merely that after the first offense, the appellant was again convicted of the same offense. If it is the same offense, it remains under paragraph (a). The grand jury does not indict repeaters as such. If it chooses to invoke paragraphs (b) and (c) involving, respectively, second and third offenses, under Section 2613, it must charge the first conviction under the statute and thereupon charge that thereafter he committed a second offense in violation of paragraph (b). Thus, he is charged, not with violating (a) for the second time, but with violating (b) for the first time. And so, for a violation of (c).
But for the repeated oversight of these requirements, it would seem sufficient merely to cite former decisions without elaborating upon them. Brewsaw v. State, 168 Miss. 371, 151 So. 475; Trivillion v. State, 195 Miss. 308, 15 So.2d 285; McGowan v. State, 200 Miss. 270, 25 So.2d 131, 26 So.2d 70; Riley v. State, 204 Miss. 562,37 So.2d 768; Outlaw v. State, 208 Miss. 13, 43 So.2d 661.
(Hn 2) Wherefore, the indictment was only for a first offense and punishable as a misdemeanor under paragraph (a). For this reason alone, the sentence imposed was erroneous. It should be borne in mind that the trial judge did not suspend a sentence which had been imposed, but deferred imposition of any sentence. A former suspension may under Section 2543 be revoked in vacation, but there is no authority to impose a sentence except in term time. In the case of White v. State, 185 Miss. 307, 188 So. 8, whose identity of name, jurisdiction and offense may of course be merely coincidental, it was held that a sentence for a misdemeanor may not be imposed in vacation. There was no need to take testimony to establish subsequent acts constituting grounds for imposing a sentence.
After plea of guilty, the appellant came into the custody of the court. He remained subject to be sentenced at a later term. The court retained jurisdiction over him and of the case. Fuller v. State, 100 Miss. 811, 57 So. 806, 39 L.R.A., N.S., 242; Hoggett v. State, 101 Miss. 269, 57 So. 8; Crump v. Trapp, Miss., 36 So.2d 459.
So that the case comes down to this: Appellant has pleaded guilty to a misdemeanor at a term of court which expired without imposition of sentence. Such course results in a continuance of the case for later sentence. Hoggett v. State, supra. He is still answerable to the court. His custody by the sheriff was therefore proper at least to the extent that he is to be made answerable to the court in further proceedings to impose sentence as for the misdemeanor.
The judgment is therefore affirmed, and since there was no attack upon the indictment by demurrer, as in Brewsaw v. State, supra, but a plea of guilty, as contrasted with Millwood v. State, 190 Miss. 750, 1 So.2d 582, the cause will be remanded for proper sentence, pending which appellant shall remain in custody subject to bail. We find no obstacle to this course in White v. State, supra, where a different procedural disposition was made. Compare Jenkins v. State, 207 Miss. 281, 42 So.2d 198.
Affirmed and remanded.
Roberds, P.J., and Lee, Holmes and Arrington, JJ., concur.