SCHNEIDER v. STATE

Will S. Wells, of Jackson, for appellant. The plea of immunity should have been sustained. State v. Billups, 179 Miss. 352, 174 So. 50; Tucker v. State, 128 Miss. 211, 90 So. 845, 848; State v. Bramlett (Miss.), 47 So. 433; Wall v. State, 105 Miss. 543, 62 So. 417; Lucas v. State, 130 Miss. 8, 93 So. 437; Triplett v. State, 136 Miss. 320, 101 So. 501; Thornton v. State, 143 Miss. 262, 108 So. 709; Turnage v. State, 134 Miss. 431, 99 So. 9; Boyd v. United States, 29 L.Ed. 746; Weeks v. United States, 58 L.Ed. 652; Silverthorn v. United States, 64 L.Ed. 319; Gouled v. United States, 65 L.Ed. 647; Amos v. United States, 65 L.Ed. 654; Code of 1942, Secs. 3335-3338; Constitution of 1890, Secs. 23, 26; Constitution of United States, Arts. 4, 5. There was a fatal variance between the indictment and the proof as to the ownership of the money. Thompson v. Kreutzer, 112 Miss. 165, 72 So. 891; Adams v. Natchez, J. C.R. Co., 76 Miss. 714, 25 So. 667; Dick v. State, 30 Miss. 631; Polkinghorne v. State (Miss.), 7 So. 347; McDowell v. State, 68 Miss. 348, 8 So. 508; Hampton v. State, 99 Miss. 176, 54 So. 722; Code of 1942, Secs. 9365, 9373; 42 Am. Jur. 189, 217, 229. The penalty imposed was erroneous. Grillis v. State, 196 Miss. 576, 17 So.2d 525; Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Code of 1942, Secs. 2120, 9365, 9373, 9392. Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, and W.D. Conn, Jr., of Jackson, for appellee. The trial judge correctly ruled in denying his asserted right to immunity from this prosecution. Turnage v. State, 134 Miss. 431, 99 So. 9; Griffin v. State, 127 Miss. 315, 90 So. 81; Ryan v. State, 136 Miss. 587, 101 So. 381; Sudduth v. State, 136 Miss. 742, 101 So. 711; State v. Billups, 179 Miss. 352, 174 So. 50; State v. Bates, 187 Miss. 172, 192 So. 832; Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Laws of 1944, Ch. 224, Sec. 2; 8 R.C.L. 125, Sec. 101. As to the alleged variance, we submit: (1) Appellant is in no position to raise this question in this Court for the first time; (2) there was no variance; but (3) if so, the variance was immaterial. Hall v. State, 166 Miss. 331, 148 So. 793; Horn v. State, 165 Miss. 169, 147 So. 310; Smith v. State, 112 Miss. 248, 72 So. 929; Sanders v. State, 141 Miss. 289, 105 So. 523; Roney v. State, 153 Miss. 290, 120 So. 445; Bowers v. State, 145 Miss. 832, 111 So. 301; State ex rel. Rice v. English (Miss.), 20 So.2d 811; Code of 1942, Sec. 9373. Appellant was indicted under Section 2120, Code of 1942, which carries a sentence up to twenty years in the State penitentiary. The motor vehicle laws do not deal with embezzlements, forgeries, false pretenses, larcenies, assaults and batteries, mayhems, arsons or other crimes which may incidentally be committed in connection with the enforcement of the motor vehicle laws. The sentence here imposed, three years, was within the permissible range, and it should not be disturbed. The Greaves and Grillis cases relied on by appellant are not, we think, in point here. In those cases, it was not clear under which statute they were indicted, and the court referred the convictions to that statute which imposed the smaller sentence. That is not true here where there is no uncertainty as to which statute the accused's indictment referred to. Argued orally by Will S. Wells, for appellant, and by W.D. Conn, Jr., for appellee.