Millwood v. State ( 1941 )

Chap. 214, Laws 1912, Section 2236, Hem. Code 1927, in prescribing the grade of the offense or the degree of the punishment for violations of that statute which prohibits the sale, or having in possession for sale, of intoxicating liquors, provides as follows:

"(a). By a fine of not less than fifty dollars nor more than five hundred dollars, or to be imprisoned in the county jail not less than one week nor more than three months, or both, for the first conviction for an offense committed after the passage of this Act.

"(b). By a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than sixty days, nor more than six months, if the conviction is for an offense under this Act, committed after a conviction and punishment for a former offense hereunder.

"(c). 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."

It was the evident purpose of the quoted gradations to attack deliberate repeaters, or those who would persist in violations of the statute after being brought to book for previous violations. As correctly said by the learned Attorney General, who confesses error, "it was contemplated that after a person was convicted of the unlawful (sale or) possession of intoxicating liquor, he was charged with notice that if he again committed the offense after such conviction he would suffer a greater punishment than was imposed upon him for the first offense. And likewise, if he was convicted of a second offense he was then warned by the statute that if he again violated it (that is to say by an offense committed after the second conviction) he would be branded with the stigma of felony and punished by imprisonment in the State penitentiary."

And under the reasoning set forth in Brewsaw v. State,168 Miss. 371, 151 So. 475, when the procedure seeks to hold the accused as a second offender it must be charged in the affidavit or indictment and shown by the proof that previously to the commission of the offense then being prosecuted, the accused had been convicted of a first offense under the statute; and when the accused is being prosecuted for a felony or third offense, the indictment must charge and the proof must show (1) that the accused had been convicted of a first offense, and (2) that after being convicted of the first offense he committed the second offense and was convicted for it as such, and (3) after the successive offenses and convictions in the order aforesaid, he committed the third or felonious offense.

Neither the indictment nor the proof in this case, which is a prosecution as for felony, measures up to the requirements set forth in the foregoing paragraph, and a reversal would follow as a matter of course, except that the point has been suggested in conference that the quoted language of Chapter 214, Laws 1912, as regards the elements required for the application of the heavier penalties for the second and third offenses, has been changed in Section 1974, Code 1930, thus allowing the contention that all that is now required for the felony charge is that there shall have been two previous convictions, even though the three offenses may have been committed on the same day, and before any convictions for either of them.

The construction last suggested would drain the gradations provided by the statute of all reason; and it is a maxim of construction of legislative enactments that they shall be so interpreted as to bring them into conformity with the manifest purpose and reasons which lie at their foundations. But here the change was in a general revision of the statutes of the state, and as to this the authorities all say that "no rule of statutory construction rests upon better reasoning than that in the revision of statutes, alteration of phraseology, the omission or addition of words, will not necessarily change the operation or construction of former statutes. The language of the statute as revised or the legislative intent to change the former statute must be clear before it can be pronounced that there is a change of such statute in construction and operation." Cole v. Sloss-Sheffield Steel Iron Co., 186 Ala. 192, 65 So. 177, 178, Ann. Cas. 1916E, 99. And see the text, and the numerous cases cited in 59 C.J., pp. 894-896.

The authorities recognize that brevity, conciseness, abridgement and condensation are among the ends towards which code revisions strive, and that these rather than changes in the meaning and purpose of the incorporated statutes are the objects, unless the purpose to change the meaning and effect of a particular statute is so plainly apparent that no other conclusion can be reasonably entertained. And in this connection it may be interesting to note that the Code Commissioners in submitting their revision of the general statutes of the State in 1930 sent along with it a booklet in which they pointed out the suggested changes in every section revised, and as to this particular section they said: "Rewritten for brevity and to eliminate obsolete matter."

In accordance with the rule to which we have now called attention, our present Section 1974, Code 1930, must be interpreted, in regard to the gradations of the offense, as if the amplified language of Chapter 214, Laws 1912 had been brought forward and incorporated in haec verba, and with the requirements in the procedure under it which we have already stated. It is true that by Section 2, Code 1930, the old law was repealed, and it is not that we look to the old law as being still in existence; but we must consider it, nevertheless, by way of aid to a proper construction or interpretation of the revised abridgment which took its place.

It has been suggested also that we should reverse only as to the felony sentence, but remand for a proper sentence as a misdemeanor. We think that the reasons for an entire reversal and remand are as much here present in substantial aspects as in Brewsaw v. State, supra, and that will be the judgment here.

Reversed and remanded.