Griffin v. State , 127 Miss. 315 ( 1921 )

Cook, J.,

delivered the opinion of the court.

Appellant, Gus Griffin, was convicted of feloniously distilling intoxicating liquors and sentenced to the penitentiary, and from this sentence he prosecutes this appeal.

The facts necessary to be stated are substantially as follows : Early one morning an officer in the town of Houston found appellant intoxicated and in possession of a bottle of whisky. He arrested appellant and turned him over to another officer, and then proceeded to a house near by which was occupied by Cleve Tucker and Anna Williams. There he found a quantity of whisky and a complete still which gave evidence of having been operated the night before. The occupants of the house were arrested and carried to the mayor’s office, where they were tried and placed under bond to await the action of the grand jury on a charge of manufacturing liquor. Upon the trial of these parties appellant, while under arrest, was sworn and introduced by the state as a witness against these occupants of the raided house. In delivering this testimony appellant disclosed facts which incriminated him and upon which he was likewise bound over to await the action of the grand jury upon the charge of distilling liquor, and in default of bond he was sent to jail. Appellant was afterwards indicted by the grand jury upon the charge for which he was held, and upon the trial of this indictment the state offered in evidence the incriminating statements which he had made when he was used as a state’s witness in the mayor’s court. At the conclusion of the testimony for the state, appellant filed a motion to exclude the evidence and grant him a peremptory instruction, “because it is shown that in the mayor’s court the defendant was put on the stand to testify, and did so testify about this matter, and he cannot now be prosecuted for anything in connection with the matter, since he was there put on the stand and made to testify.”

This motion was overruled, and the action of the court in so doing is assigned as error.

The decision of the question presented by this assignment involves a consideration of our statutes requiring any person to testify when introduced as a witness in any prosecution for a violation of the laws touching the subject of intoxicating liquors, or any law of the state having for its purpose the promotion of temperance and the suppression of the evils of intemperance.

Section 1792, Code of 1906 (section 2106, Hemingway’s Code), provides as follows:

“No person shall be excused from attending and testifying before a grand jury, or before any court, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of this chapter, or any amendment thereof, on the ground and for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to incriminate him or subject him to a penalty or forfeiture.- But no person shall be prosecuted or subject to any penalty or forfeiture for or on ac- ■ count of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before the grand jury, or any court: Provided, that no person so testifying shall be exempt from prosecution or punishment for perjury in so testifying. Any person who shall neglect or refuse to so attend or testify, or to answer any lawful inquiry, or to produce books or other documentary evidence, if in Ms power to do so, shall be guilty of a misdemeanor, and, upon a conviction thereof, shall be punished by a fine of not less than one hundred dollars or more than five hundred dollars, or by imprisonment for not more than ninety days, or by both such fines and imprisonment.”

Section 9, Chapter 189, Laws of 1918, provides:

“That no persons shall be excused from testifying before the grand jury or on the trial in any prosecution for any violation of this act, or other law of this state for the promotion bf temperance and the suppression of the evils of intemperance; but no disclosure or discovery made by such person is to be used against him in any criminal or penal prosecution for or on behalf of the matters disclosed.”

Section 21, Chapter 189, Laws of 1918, provides:

“That this is a supplemental act and does not constitute a complete revision of the laws upon the subject matter involved, and that all acts and parts of acts, and all laws and parts of laws heretofore passed, are hereby repealed and modified only when the same are in conflict with the provisions of this act, but the act approved February 16, 1916, known as the nonshipping law and as chapter 103 of the laws of 1916 in relation to the shipment and delivery of liquors, is hereby repealed, and that this act, among other things, is intended to furnish a substitute for the said chapter 103 of the laws of 1916, and to displace the said latter act.”

The question arises whether section 1792, Code of 1906,v was repealed by the enactment of section 9, chapter 189, Laws of 1918? By the express terms of section 21 of the said chapter 189, .this Code section is not repealed by section 9 of said chapter unless the two are in conflict. The purpose sought to be accomplished by both statutes is to render available, in prosecutions of this character, the testimony of any person who may have knowledge of the violation of any law on the subject of intoxicating liquors, although the testimony of the witness may tend to incriminate him or subject him to a penalty. It is true that the penalty for a failure or refusal to testify, as prescribed in section 1792 of the Code, is not brought forward in section 9 of the said chapter 189 of the Laws of 1918, but the two enactments are entirely harmonious in the purpose sought to be accomplished thereby, and both seek to grant immunity to the person who is so required to testify. We conclude, therefore, that there is no conflict between the two enactments, and that both are in full force.

Appellant here was arrested and. carried before the mayor’s court, and there introduced as a witness against one charged with manufacturing liquors, and in delivering his testimony, which he was compelled to do under the provisions of section 9, chapter 189, Laws of 1918, he disclosed facts which incriminated himself; and under the provisions of these sections he is immune from prosecution for any transaction or thing concerning which he testified.

We conclude, therefore, that the motion to exclude the evidence and grant a peremptory instruction to find the defendant not guilty should have been sustained.

Reversed, and appellant discharged.