Pope v. State

Mississippi Supreme Court October 15, 1885

Pope v. State, 63 Miss. 53 (Miss. 1885)

Campbell

Opinion of the Court

Campbell, J.,

delivered the opinion of the court.

The plea is fatally defective because it does not aver the identity of the offence charged and that for which the former conviction was had. Rocco v. The State, 37 Miss. 357.

The argument is, that in the prosecution before the justice of the peace evidence might have been given of the offence charged in the indictment to have occurred on a day anterior to that laid'in the affidavit, and therefore the conviction by the justice bars this prosecution by virtue of § 2857 of the code. This section author*58izes the giving of evidence on the trial of an indictment for gaming of more than one offence of the same character committed anterior to the day laid in the indictment, and because of this and where this privilege is availed of on a trial, the accused, who is thus subjected to liability to conviction of any offence anterior to the day laid, is shielded from being again held to answer for what he has already been tried for. Having run the gauntlet in the trial for a certain period of time, he is to go free as to this. A conviction for a particular offence of gaming, whether on a plea of guilty or as the result of a trial, does not entitle the convict to immunity for all the time prior to the time laid in the indictment on which the conviction was had.

Affirmed.

Reference

Full Case Name: Ben. Pope v. State
Cited By: 2 cases
Status: Published
Syllabus: 1. Gaming, Plea, of former conviction. Criminal practice. A plea of former conviction to an indictment for gaming which does not aver the identity of the offense charged in the indictment with that for which the former conviction was had is fatally defective. Boceo v. Slate, 37 Miss. 357, cited. 2. Gaming. Conviction therefor. Prior offenses. Section 2857, Code 1880, construed. Criminal practice. Section 2857 of the Code of 1880 provides that, “ On the trial of all indictments for gaming the district attorney shall not be confined in the proof to a single violation, but under the indictment charging a single offense may give in evidence any one or more offenses of the same character committed anterior to the day laid in the indictment and not barred by the statute of limitations—provided that in such case, after conviction or acquittal on the merits, the accused shall not be again liable to prosecution for any offense of the same character committed anterior to the day laid in such indictment.” Under this statute a conviction for the particular offense charged in an indictment does not confer immunity for similar offenses committed prior to the time laid in the indictment, unless evidence thereof was adduced in the trial.