State v. Rees , 76 Miss. 435 ( 1898 )

Whitfield, J.,

delivered the opinion of the court.

The first count in the indictment attempts to charge an offense under § 1063, code of 1892, and the second attempts to charge the offense denounced by § 1066. The offense sought to be charged in the first count may be punished by twenty years’ imprisonment in the penitentiary; the latter could not be punished with more than ten years in the penitentiary. The indictment, therefore, seeks to charge two distinct felonies of different degrees and different punishments. A demurrer was interposed on this ground, amongst others, and sustained, and the indictment quashed, no leave to amend being applied for. The court exercised the discretion, given it in such cases, correctly, that the prisoner might not be embarrassed in his defense, and relieve itself of the embarrassment which might have arisen as to what judgment to render on a general verdict of guilty. That the action of the court was correct, objection being properly taken by demurrer, is granted. Wash v. State, 14 Smed. & M., 125; Teat v. State, 53 Miss., 439; Bishop Crim. Prac., secs. 425, 450.

Says Mr. Bishop, sec. 425: ££ When the court, on reasonable application, deems that the due order of judicial proceedings, as the interests of a party, will be prejudiced by the multiplicity or ill joinder, it will in its discretion quash a count or the whole indictment, or order separate trials on the counts, or compel the prosecutor to state on which one he will ask for a verdict, as the exigencies of the particular case, and the time and manner of making the objection, may render most suitable. The fact that the court will interfere to prevent an abuse of the right of joining counts is the justification of the various expressions in the books to the effect that such and such a joinder is permissible, and such another is not.” The settled rule in this state is that it is bad practice to join in the same indictment counts for distinct felonies of differing degrees, differently punished; and that, if that be done, the court may, in its discretion, on timely and proper objection, quash the indictment. The court here has exercised its discretion in that way by sustaining the demurrer. To hold that it erred would be now to declare that good practice which has always been condemned as bad, and to declare that the trial court has no discretion, in such cases, to quash such an indictment.

This is a wholly different question from the one which arises where the trial court, in the exercise of its discretion, overrules such a demurrer, and this court, looking backward over a completed trial, can see that no injustice was done, and, therefore, refuses to reverse because of the overruling of such demurrer, as was the case in Hill v. State, 72 Miss., 534, and also wholly different from cases like Gates v. State, 71 Miss., 874, where the offenses had the same punishment. The question here is not whether this court should reverse because the trial court overruled such demurrer, but whether it shall declare that the trial court’s exercise of its- discretion in such case, in sustaining the demurrer, was an abuse of that judicial discretion intrusted to it in just such cases. Clearly it was not only no abuse, but eminently proper action.