Perkins v. State , 130 Miss. 744 ( 1922 )

Ethridge, J.,

delivered the opinion of the court.

.Perkins was convicted of the sale of intoxicating liquors, and sentenced by the circuit court to pay a fine of five hundred dollars and to serve a six months’ term in the county jail, to — “stand committed until two hundred and fifty dollars of the fine and all costs are paid and two months of the jail sentence is served. The balance of the fine and the balance of the jail sentence is held up and suspended until such a time as defendant shall again be cdnvicted for violating the prohibition laws of this state for an offense heretofore committed in the First judicial district of the state of Mississippi.”

The state witnesses were two federal agents employed in the state of Mississippi, who each testified that on the 15th day of June they went to the appellant about 2:30 p. m. and bought a half pint of whisky for two dollars from the appellant.. On cross-examination one of these witnesses stated that the appellant had been pointed out to him on a former day by some person whose name he did not know, and was asked by the defendant on cross-examination if it was Leonard Suggs. He stated he did not know. He then asked if the man was not tattooed, and he said he was. Thereupon counsel for the’ defendant had a subpoena issued for Suggs, which was returned. without being served on Suggs. At the conclusion of all of the evidence for the state and the defendant, counsel asked the court to suspend the trial for an hour and a half, so as to enable him to get Suggs, who, he stated, was in the city of Corinth at work somewhere, which the court refused to do.

The defendant introduced much evidence tending to show that he was sick in bed on the day in question, and testified himself to this effect, and that he did not go to his place of business on that day, where the state’s witnesses testified the sale was made. He also introduced many witnesses whose evidence tended to show that the defendant enjoyed a good 'reputation as a peaceful and law-abiding man. Appellant also offered to prove that on the morning preceding the alleged purchase at 2:30 p. m. that one of the state’s, witnesses, being one of the prohibition enforcement officers, was drunk, which evidence the court excluded.

The defendant assigns for error the refusal to suspend the trial at the close of the evidence until he could procure Suggs, and also that the court erred in excluding the evidence that he was drunk in the morning preceding the sale, and also that the verdict was contrary to the evidence. None of these contentions can prevail. Suggs was not named as a witness by the state witnesses, and the evidence sought to be obtained from Suggs, which was produced on the motion for a new trial, would have been merely to impeach a witness, and about a collateral matter at that. The court will not grant new trials merely to obtain impeaching witnesses. The record shows that there was a trial in the mayor’s court, and all the facts might have been learned in advance of the trial, and the conflict in the evidence on this record was entirely for the jury. It was not reversible error to rule out the proof that the state witness was drunk in the morning preceding the sale of the whisky.

The state procured a cross-appeal from the judgment of the circuit judge that undertakes to suspend a part of the sentence, setting forth that such suspension is in violation of chapter 210, Laws of 1922, which act makes it mandatory for the convicted person to serve not less than ninety days in jail, in addition to the money fine prescribed by law. Section 3 thereof provides that neither a justice of the peace nor a judge shall have authority to suspend the said jail sentence. This act became effective March 13, 1922, the offense was committed on June 15, 1922, and the trial had in July, 1922. At the time of the trial the published acts had not been distributed, and of course the judge’s attention was not called to this chapter 210, Laws of 1922, which, annulled his power to suspend sentence as to the offenses named in the act. It is not evident that the judge would have imposed the full sis months and five hundred dollars, if he had been aware of the new statute. A suspension indicates that he would have imposed a less sentence.

The judgment will be affirmed on direct appeal, and on cross-appeal reversed and remanded, solely for a new sentence ; the trial on the merits standing.

Affirmed on direct appeal.

Reversed and remanded on cross-appeal.