DISSENTING OPINION. In order to bring this case within subsection (b) of Section 2613, Code 1942, this indictment should have alleged in substance and in proper form that Jack McGowan, in the county aforesaid and after having been convicted in a named court of competent jurisdiction of a violation of Section 2613, Code 1942, did, on the ____ day of August, 1944, have in his possession whiskey contrary to Section 2613, Code 1942, and against the peace and dignity of the State of Mississippi1 Brewsaw v. State,168 Miss. 371, 151 So. 475; Millwood v. State, 190 Miss. 750, 1 So.2d 582; Rogers v. State, 198 Miss. 495, 22 So.2d 550. This indictment alleges the possession by the appellant of whiskey in December, 1944, contrary to Section 2613, Code 1942, but wholly fails to allege that either of the two former convictions referred to therein were for violations of that Section of the Code. The indictment, therefore, does not bring the case within subsection (b) of Section 2613, Code 1942. Consequently, under the authorities supra the judgment should be reversed and the cause remanded for trial and punishment under subsection (a) of that Section of the Code. *Page 281 L.A. Smith, Sr., and Roberds, JJ., concur in this dissenting opinion.
1 A good, though not the only, form for such an indictment would be (after setting forth the usual formal allegations) that on the ____ day of ____ John Doe was convicted in the Circuit Court of ____ County, Mississippi, of the possession (or sale, etc., as the case may be) in violation of Section 2613, Code 1942, and thereafter on the ____ day of ____, 19__, did in the county of ____, State of Mississippi, have in his possession (describe or name the liquor) contrary to the aforesaid Section 2613, Code 1942, and against the peace and dignity of the State of Mississippi. These blanks, of course, should be filled out and if the former conviction was in the court of a justice of the peace the allegation should conform thereto.