State v. Schmitz
State v. Schmitz
Opinion of the Court
delivered the opinion of the court.
The appellees were indicted under the provisions of section 18, chapter 189, Laws of 1918, for manufacturing intoxicating liquors, and interposed a demurrer to the indictment. The demurrer was sustained by the court below, and from this judgment the state prosecuted this appeal.
The indictment reads as follows:
“The grand jurors for the state of Mississippi . . . upon their oaths present: That Braxton Schmitz, Jim Schmitz, and Ben Parsons, in said county, on the 26th day of July, A. D. 1920, did willfully, unlawfully, and felo-niously make, manufacture, and distill spirituous, vinous, malted, fermented, and intoxicating liquors, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Mississippi.”
The demurrer contained four grounds, and reads as follows :
“(1) The indictment charges no crime known to the law of the state of Mississippi.
“(2) The indictment is duplicitous, in that it purports to charge more than one felony in the same count of the indictment.
“(8) The indictment is vague and indefinite and misleading in its terms.
“(4) The indictment fails to inform defendants as to the exact nature and cause of the charge brought against them by the state of Mississippi.”
In 10 Ency. of PI. & Pr. at page 536, it is said: “When a statute enumerates several acts in the alternative, the doing of any of which is subjected to the same punishment, all of such acts may be charged cumulatively as one offense.”
A somewhat similar question was presented in the case of Lea v. State, 64 Miss. 201, 1 So. 51, when this court said:
“There is no merit in the objection made to the indictment that it is double, because it alleges in the same count that both vinous and spirituous liquors were sold. The selling of one or both, as charged, was criminal.”
The dominant purpose of the statute under which the indictment in this case is drawn is the suppression of the manufacture of any kind of intoxicating liquors, and the statute enumerates several acts in the alternative Avhich are subjected to the same punishment. The indictment is drawn in the exact language of the statute, and a conviction may be sustained by the proof of the doing of any one of the forbidden things, and we conclude, therefore, that the indictment is not duplicitous.
The judgment of the court sustaining the demurrer will be reversed, and the cause remanded for a trial upon the indictment.
Reversed and remanded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.