Millwood v. State , 190 Miss. 750 ( 1941 )

DISSENTING OPINION. The amendment just made by the Court to paragraph (c) of Section 1974 of the Code of 1930 may be, and I am inclined to think is, a good one, but to make it is the province of the Legislature and not of this Court. All that paragraph (c) of that section of the Code, as written, requires to support a sentence is imposed under it is that the conviction on which the sentence is imposed shall be "after having been twice convicted of its [the section's] violation."

My associates do not hold otherwise, but they say that language contained in Chapter 214, Laws of 1912, omitted when it was brought forward into the Code as Section 1974 thereof, must be read into the section by the Court and the section interpreted "as if the amplified language of Chapter 214, Laws 1912 had been brought forward and incorporated in haec verba." The rule cited for this is in vogue in some states, but has never heretofore been acted on by this Court and runs counter to Section 3 of the Code, which provides that: "From and after the said first day of November, nineteen hundred and thirty, all acts and parts of acts, the subjects whereof are revised, consolidated and re-enacted in this Code, or repugnant to the provisions contained therein, shall be, and the same are hereby, repealed, subject, however, to any express exceptions or regulations relating thereto which may be contained in this Code . . ." This can only mean that where a former statute has been brought forward into a section of the Code, the meaning of the section must be determined by the language chosen by the Legislature to express its purpose when enacting the Code. Cf. Eagle Lumber Supply Company v. Robertson, 161 Miss. 17, 135 So. 499. If the Legislature otherwise intends, that intention must be evidenced by an "express exceptions or regulations relating thereto" set forth in the section by which the former statute was brought into the Code or elsewhere in the Code. Of course, if the Code section is ambiguous, resort may be had to the former statute in order to clear up the ambiguity. But, if Section 3 of the Code is to be held not to govern here, the same result should follow under the rule of construction here adopted and applied, for it seems clear that the Legislature intended the section to be enforced as adopted by it, for had it not so intended and desired the old statute to remain in force as there written, it is hardly probable that it would have left so serious a matter in doubt. It would not have left its intention relative thereto to be ascertained by rules of construction which the courts might or might not adopt or apply.

In any event, the judgment should be reversed only insofar as it imposes sentence under paragraph (c) of the statute, and be remanded only for sentence under paragraph (a) thereof. The appellant was indicted and tried for making a particular sale of intoxicating liquor after he had been theretofore twice convicted for making similar sales. He could not have been convicted without proof of the particular sale. Consequently, the verdict of guilty as charged necessarily includes guilt as to the particular sale. This exact question was decided in 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, wherein the Court held that where a defendant is tried, convicted and sentenced on an indictment under paragraph (c) of this statute, and the evidence failed to disclose the alleged prior convictions, the judgment rendered on the verdict should be set aside only insofar as it imposes the sentence, and that the case should be remanded for sentence under paragraph (a) of the section.

Brewsaw v. State, 168 Miss. 371, 151 So. 475, is in conflict with these cases, but they are not referred to in the opinion there rendered and its holding that where the trial is on an indictment which attempts but fails to charge a felony, the defendant is not called on to defend himself from a misdemeanor included within the allegations of the indictment and cannot be convicted on that trial therefor, runs counter to and conflicts with Section 1290, Code of 1930.

Roberds, J., concurs in this opinion.