Thomas v. Yazoo City

Fletcher, T., delivered the opinion of the court. This appellant was charged in the mayor’s court of Yazoo City with the unlawful sale of whiskey, and, being there convicted, appealed to the circuit court. On the trial in the circuit court the city not only proved the same sale relied on in the mayor’s court, but an additional sale, made some six months previously. The court declined to compel the city to elect one of these sales upon which to stand, and charged the jury that, if either sale had been proven, then the jury was authorized to convict. [402] Several objections were then made to the validity of the city ordinances, all of which were overruled. From a conviction in the circuit court, this appeal is prosecuted. Many of the questions presented by this record were before the court in the case of Booze v. Yazoo City, 94 Miss. 428, 48 South. 820, and it was said in the opinion in that case that these contentions were without merit. Although this has been expressly decided, we deem it not amiss to refer to these points more in detail. It 'is said that the compilation of the ordinances of Yazoo City known as “Holmes’ Code” should not have been admitted in evidence, because it did not contain any certificate of the clerk as to its official character. But we think this defect, if it may be so called, was cured by permitting the city clerk on the trial to supply the missing certificate. It is made ground of objection that the charter of Yazoo City gave no power to the city council to prohibit the sale of intoxicants. But article 11 of the charter expressly confers the power “to restrain, prohibit, or suppress tippling houses, dram-shops, gaming, gambling houses, houses of ill fame, and all other disorderly houses.” By article 20 of the charter power is given to “ordain all needful laws for preventing and suppressing all crime, obscenity, profanity, drunkenness, and other disorderly conduct.” It is said that the power to suppress does not authorize an entire prohibition of the sale of whiskey, but only permits disorderly and improper houses to be suppressed. But the case of Corinth v. Crittenden, 94 Miss. 41, 47 South. 525, dealing with pool rooms in a special charter town, is a complete answer to this contention, and the reasoning of that opinion need not be repeated. It is said, again, that Yazoo City cannot institute a criminal prosecution, since there is no mode of procedure provided in the ordinance for inaugurating such a prosecution. But this court has held in Telheard v. Bay St. Louis, 87 Miss. 580, 40 South. 326, that a prosecution for a violation of a municipal [403] ordinance is governed by tbe provisions of section 26 of tbe constitution of 1890, and in effect that in such prosecutions there must be a complaint in writing, which shall specify the nature and cause of the accusation. So it would appear that, in the absence of any ordinance regulating the procedure, an affidavit, or at least some definite description of the offense, is demanded by the terms of the constitution. We cannot yield to the earnest argument that the penalty prescribed by the Yazoo City ordinance is so severe as to constitute cruel and unusual punishment. True, it provides a minimum punishment far in excess of the minimum punishment carried by the state law; but by article 30 of the charter large powers are conferred upon the city in enforcing its police powers. It must necessarily be left largely to the discretion of the city as to what penalties are imposed for violating its police ordinances. This brings us to the consideration of the principal questions urged upon the attention of the court, which questions are not involved in the Booze case and are peculiar to the case now under consideration. It is earnestly argued that it was error for the circuit court to permit evidence to go to the jury of any sale of intoxicating liquor except the one counted on and proven in the mayor’s court. Especially is it said that the court erred in charging the jury to convict if the jury believed that either of the two sales had been proven. The argument is that Code 1906, § 1762, is but a rule of evidence, and that its provisions must be construed so as to harmonize with the holding of this court in cases like Hudson v. State, 73 Miss. 784, 19 South. 965. Therefore counsel contend that the state must select one particular sale upon which to predicate a conviction, and that proof of other sales should be considered merely as evidence of the defendant’s guilt. If this view be correct, 'it is evident that the court fell into error in giving the second and third instructions for the state. This question has been before the court more than once, and [404] convictions resting upon evidence of several sales have been affirmed without written opinions, and that, too, in cases where the court declined to put the state t.o an election. The view which has controlled the court, and which is now for the first time set out in a written opinion is that Code 1906, § 1762, amounts to far more than a rule of evidence. This conclusion is unescapable, when proper weight is given to that part of the statute which provides: “But in such cases, after conviction or acquittal on the merits, the accused shall not again be liable to prosecution for any offense of the same character committed anterior to the day laid in the indictment, or in the affidavit.” If it be true that the defendant is tried for making a single sale, then no reason can exist for making a conviction a bar to subsequent prosecution for any offense committed within two years of the date laid in the indictment. When this statute is considered in connection with the general statute on the subject, it would seem clear that the rule announced in such cases as Hudson v. State, supra; Naul v. McComb City, 70 Miss. 699, 12 South. 903, and Ware v. State, 71 Miss. 204, 13 South. 936, has been abrogated. To some extent the very essence of the offense has been materially changed. We think that, as the law stands now, its effect is to make the sale of intoxicating liquors stand upon the same basis as a nuisance. In other words, it-is now unlawful for any person to sell liquors, and the offense is made out by proof of sales, however few or numerous they may be, provided they are committed within two years prior to the time laid in the indictment. It is, of course, perfectly manifest that, if this view be correct, there can be no objection to the statutory provision permitting proof of several sales, and authorizing conviction if the jury believes that any or all have been made. The case is analogous to a prosecution for keeping a gambling house, or a bawdy house, or any other series of acts which are injurious to public morals. In all these cases the substantive offense may be proven by showing individual, though isolated, acts. [405] It is said, however, that if this be the correct view of the law this case must be reversed because by no ordinance of Yazoo ■City has there been any adoption of Code 1906, § 1752, which it is said applies only to prosecutions by the state. We think this is taking too narrow a view of the scope and evident meaning of the statute. It should be borne in mind that this court has decided, in the case of Telheard v. Bay St. Louis, supra, that prosecutions under municipal ordinances are subject to the provisions of the constitution. If a person charged with violating a city ordinance is entitled to the protection guaranteed to persons charged with crime by the provisions of the constitution, it must further follow that he is subject to statutory provisions dealing with the identical crime, whether it is sought to be fastened on him by state or municipal authority. Now, Code 1906, § 1762, provides that, in the trial of all prosecutions for violating the liquor laws, proof may be given of more than one violation. We think this language is as much 'applicable to a prosecution under a city ordinance as is the language of section 26 of the constitution. It is true that the statute provides that “the state shall not be confined to the proof of a single violation,” etc.; but this word “state,” we think, is used in a general sense to designate any authority in the name of which the prosecution is carried on. It is broad enough to embrace, not in its terms, but in its meaning, a municipal corporation seeking to punish for the violation of its ordinances, as well as the state prosecuting under the ordinary criminal statutes. Affirmed.