{
  "id": 8725211,
  "name": "McIlwain v. State",
  "name_abbreviation": "McIlwain v. State",
  "decision_date": "1956-10-22",
  "docket_number": "4851",
  "first_page": "818",
  "last_page": "820",
  "citations": [
    {
      "type": "official",
      "cite": "226 Ark. 818"
    },
    {
      "type": "parallel",
      "cite": "294 S.W.2d 350"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "222 Ark. 432",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1653066
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ark/222/0432-01"
      ]
    }
  ],
  "analysis": {
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  "last_updated": "2023-07-14T14:58:54.393419+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "McIlwain v. State."
    ],
    "opinions": [
      {
        "text": "George Rose Smith, J.\nThe appellant was charged by information with having, unlawfully possessed marijuana on November 9, .1954. The information also invoked the habitual criminal statute by asserting that the accused bad been convicted in Texas of assault with intent to rob and had been convicted by a federal court in Tennessee of having been an unlawful transferee of marijuana. The court instructed the jury in the language of Act 258 of 1937, which provided that the unlawful possession of marijuana should be a felony. The jury returned a verdict of guilty and fixed the punishment at seven years imprisonment.\nIn his motion for a new trial the accused correctly pointed out that Act 258 of 1937, which made the offense a felony, had been expressly repealed by Act 62 of 1953. He further asserted in this motion that the prosecution was barred by the one-year statute of limitations applicable to misdemeanors. Ark. Stats. 1947, \u00a7 43-1603. After a hearing upon the motion the court reduced the sentence to one year in the penitentiary, apparently on the theory that the accused could be considered as having been convicted of a second offense either under the habitual criminal statute or under the Uniform Narcotic Drug Act. This appeal followed.\nInasmuch as the information was not filed until about fifteen months after the commission of the offense, the plea of limitations, if well founded, is decisive. It is settled that the one-year period allowed for the prosecution of misdemeanors is more than an ordinary statute of limitations; it goes to the court\u2019s power to try the case and may be raised for the first time in the motion for a new trial. Williams v. City of Malvern, 222 Ark. 432, 261 S. W. 2d 6. Hence the question is whether the appellant\u2019s offense constitutes a misdemeanor or a felony.\nIn view of the repeal of the 1937 act pertaining to marijuana the only pertinent statute is the Uniform Narcotic Drug Act. It provides that any person \u201cviolating any provision of this act\u201d shall be punishable for the first offense by confinement in jail for not exceeding six months and for a subsequent offense by imprisonment in the State prison for not exceeding one year. Ark. Stats. \u00a7 82-1020. The appellant has not previously been convicted under the Arkansas statute and is therefore a first offender under the language- quoted above. Since an offense punishable by not more than, six months, in jail is only a misdemeanor, Ark. Stats., \u00a7\u00a7 41-103, 41-104, it follows that a first offense under the Uniform Narcotic Drug Act is not a felony.\nNor does the habitual criminal statute have the effect of converting a misdemeanor into a felony. That statute, being Act 228 of 1953, appears as Ark. Stats., \u00a7\u00a7 43-2328 to 43-2330. Although it encompasses prior convictions in the federal courts and in other state courts, it is clear that the statute is applicable only when both the prior and present convictions are for felonies. Throughout the act the references are to offenses \u201cpunishable by imprisonment in the penitentiary,\u201d which is the statutory definition of a felony. Ark. Stats., \u00a7 41-103. In the emergency clause the legislature declared that \u201ca number of persons who commit felonies have previously been convicted of felonies, \u2019 \u2019 etc. The habitual criminal statute increases the maximum penalty for a second felony conviction, but it does not purport to raise the grade of a second offense by transforming a mere misdemeanor into a felony. Thus the appellant\u2019s crime remains a misdemeanor, and the plea of limitations is a complete defense.\nReversed and dismissed.",
        "type": "majority",
        "author": "George Rose Smith, J."
      }
    ],
    "attorneys": [
      "Claude F. Cooper, Harry E. McDermott, Jr., and Spitzberg, Mitchell & Hays, for appellant.",
      "Tom Gentry, Attorney General and Ben J. Harrison, Asst. Atty. General, for appellee."
    ],
    "corrections": "",
    "head_matter": "McIlwain v. State.\n4851\n294 S. W. 2d 350\nOpinion delivered October 22, 1956.\nClaude F. Cooper, Harry E. McDermott, Jr., and Spitzberg, Mitchell & Hays, for appellant.\nTom Gentry, Attorney General and Ben J. Harrison, Asst. Atty. General, for appellee."
  },
  "file_name": "0818-01",
  "first_page_order": 842,
  "last_page_order": 844
}