
    Trivillion v. State.
    (In Banc.
    Oct. 11, 1943.)
    [15 So. (2d) 285.
    No. 35217.]
    J. H. Garth, of Hazlehurst, and J. W. Cassedy, of Brookhaven, for appellant.
    
      Greek L. Rice, Attorney General, by R. O. Arrington, Assistant Attorney General, for appellee.
   Alexander, J.,

delivered the opinion of the court.

Appellant was convicted, as a second offender, of the unlawful possession of intoxicating liquor, under Code 1930, Section 1974(b).

The only assigned error we need here notice is the refusal of the trial court to sustain the defendant’s motion for a peremptory instruction that he could not be found guilty of a second offense. Regardless of the sufficiency vel non of the amended affidavit, it was developed in the evidence that the first offense which was made a predicate for the invocation of Section 1974 (b) was a prosecution and conviction under an ordinance of the City of Brook-haven. A conviction as a second offender under the statute referred to may not be predicated upon a prior conviction under an ordinance.

While the jury necessarily found the defendant guilty of the subsequent offense and therefore in any event punishable thereunder, we can not allow the judgment and sentence to stand, as beijag inconsistent with the views herein expressed. The defendant is entitled to be tried only upon a proper charge and, if convicted, sentenced in accordance therewith. Millwood v. State, 190 Miss. 750, 1 So. (2d) 582; Singleterry v. State (Miss.), 4 So. (2d) 234 (not reported in State Reports).

The affidavit for search warrant and the warrant issued thereunder are found sufficient.

Reversed and remanded.  