Mississippi Advisory Opinions August 16, 1983: 19830816 (August 16, 1983)

Advisory Opinion Text

Honorable Dunn Lampton

District Attorney

223 East Bay Street

Magnolia, Mississippi 39652

Re: Elections - Qualifications of Candidates

Dear Mr. Lampton:

Attorney General Allain has received your letter of request and has assigned it to me for research and reply.

Your letter states:

“I would appreciate an attorney general's opinion as to whether a felony conviction of forgery in another state will disqualify a person from either running for or holding the office of constable in Mississippi. I talked with Phillip Carter of your staff last Friday and he directed me to two Supreme Court cases, State v. McDonald , 145 So. 508 and Muirhead v. State Board of Election Commissioners , 259 So.2d 698. I have read these cases but would feel more comfortable if you would provide me with a written opinion. If the constable is not prohibited from holding the office, then I would appreciate an additional opinion as to whether or not he could lawfully carry a firearm since he is a convicted felon.”

Section 44, Mississippi Constitution of 1890, provides:

“No person shall be eligible to a seat in either house of the legislature, or to any office of profit or trust, who shall have been convicted of bribery, perjury, or other infamous crime ; and any person who shall have been convicted of giving or offering, directly, or indirectly, any bribe to procure his election or appointment, and any person who shall give or offer any bribe to procure the election or appointment of any person to office, shall, on conviction thereof, be disqualified from holding any office of profit or trust under the laws of this state.” (Emphasis added)

Mississippi Code Annotated § 1-3-19 (1972) defines the term “infamous crime” as “offenses punished with death or confinement in the penitentiary.”

The Mississippi Supreme Court in Muirhead v. State Board of Election Commissioners , 259 So.2d 698 (1972), said:

“This Court held in the case of State ex rel. Mitchell v. McDonald, 164 Miss. 405, 145 So. 508 (1933), that in order to disqualify a person from serving in an elective office within Mississippi, the person must been convicted by a court in Mississippi.

“This Court had this to say in the McDonald case:

“' . . . [T]he record shows that the charge relied upon herein is based on a violation of the laws of the United States and not the laws of the State of Mississippi, and the conviction complained about, being a proceeding in the federal court and not a state court, would not be within the terms of disqualification for holding office, as fixed by our laws.

“'Where the constitution contains such a provision it applies to crimes committed under the jurisdiction of the state providing the disqualification and not to crimes against another government. 164 Miss. at 418-419, 145 So. at 511.

“'We are of the opinion that upon wellsettled principles and sound reason the statute is confined to a conviction in this state.' “It is apparent to us that the words 'in the penitentiary' used in Section 680, Mississippi Code 1942 Annotated (1956) [nor § 1-3-19, Code of 1972 ] above quoted refers to the Mississippi Penitentiary, and not the federal penitentiary. “In Daughdrill v. Daughdrill, 180 Miss. 589, 178 So. 106 (1938), we pointed out that 'the' penitentiary does not mean just any penitentiary or 'a' penitentiary, but means the Mississippi Penitentiary.”

In response to your first question, the Supreme Court in the above quoted opinion has held that a felony conviction of a disqualifying crime in another state does not disqualify a person from running for or holding an office of profit or trust in the State of Mississippi.

Mississippi Code Annotated § 97-37-1 (1972) provides in part:

“Any person who carries, concealed in whole or in part, any bowie knife, dirk knife, metallic knuckles, blackjack, slingshot, pistol, revolver, or any rifle with a barrel of less than sixteen (16) inches in length, or any shotgun with a barrel of less than eighteen (18) inches in length, machine gun or any fully automatic firearm or deadly weapon, or any muffler or silencer for any firearm, whether or not it is accompanied by a firearm, or uses or attempts to use against another person any imitation firearm, shall upon conviction be punished as follows: * * * *”

Section 97-37-5 states:

“The possession of any deadly weapon as described in section 97-37-1 by any person who has been convicted of a felony under the laws of this state, any other state, or of the United States, shall be prima facie evidence of a violation of that section.”

In response to your second question, the above statutes specifically prohibit one who has been convicted of a felony in another state from possessing any of the weapons described therein.

Very truly yours,

Bill Allain Attorney General