SPECIALLY CONCURRING OPINION. I assent to the interpretation given by the majority opinion to Section 1974, Code of 1930, but do not agree *Page 758 that the basis therefor is necessarily related to a principle which revives and transplants the former statute in haec verba, even though it allows an interpretation thereof to take into account the history and purpose of the former statute. Such factors are under all circumstances available to this end, and the existence of a former enactment dealing with the same or similar subject matter ought to be seen merely as a relevant or incidental circumstance. To hold otherwise invites scrutiny of all statutes repealed pursuant to Section 3 of the Code of 1930, with a view to their restoration on the ground that they can be identified as precursors of a later statute.
Since the third offense under paragraph (c), Section 1974, must be charged as such, so the second offense must have been likewise so alleged. Paragraph (c) makes its violation a felony. It is not a mere provision permitting a penitentiary sentence upon conviction of a misdemeanor. A defendant indicted under this paragraph would be entitled to the number of peremptory challenges applicable to felonies. The defendant has the right to demand and to be informed of the nature and cause of the accusation against him. Section 26, Miss. Const.
I assent to the disposition of the case by reversal and remand rather than a mere remand for proper sentence. In addition to the reasons given in the majority opinion, it is apparent that if the defendant is considered as having been convicted of a constituent misdemeanor it will be seen that he was convicted upon testimony which was inadmissible and highly prejudicial. Two former convictions for the sale of intoxicating liquor were proved by the state. Regardless of how appropriate such evidence would be in a proper prosecution under paragraph (c), it was so improper and prejudicial under a prosecution as for a first offense that this Court ought to take notice thereof. *Page 759