Opinion
No. 26986.
May 7, 1928.
1. CRIMINAL LAW. Circuit court's jurisdiction over appeals from justices of the peace is conditioned on rendition of judgment and execution of appeal bond.
Jurisdiction of the circuit court over appeals from justice of the peace court is conditioned on the rendition of judgment by such justice of the peace and the execution of an appeal bond.
2. CRIMINAL LAW. Circuit court held without jurisdiction of appeal, where justice of the peace rendered no judgment in prosecution for carrying concealed weapon.
Where justice of the peace in prosecution for carrying concealed a deadly weapon failed to render judgment, but permitted defendant to waive examination, circuit court was without jurisdiction of appeal therein.
APPEAL from circuit court of Marshall county; HON. T.E. PEGRAM, Judge.
Belk Belk, for appellant.
It is a well-settled rule of law that the circuit court has no original jurisdiction to try a misdemeanor except by indictment and there was no indictment in this cause, but, on the contrary, the case was tried upon the affidavit issued by the justice of the peace, whose court had original jurisdiction of the matter and in whose court no judgment was ever rendered from which an appeal could have been taken. Young v. State, 140 Miss. 167; Hughston v. Cornish, 59 Miss. 372; Ball v. Sledge, 82 Miss. 747, 35 So. 214.
J.A. Lauderdale, Assistant Attorney-General, for the state.
The appeal bond executed by the defendant recites as follows: "Whereas Jim Clark, Jr., was by the undersigned, a justice of the peace, in and for said county and state, adjudged guilty of carrying a concealed pistol on the 11th day of October, 1927, and fined twenty-five dollars and cost amounting to eighteen dollars and seventy-five cents and whereas said Jim Clark, Jr., has appealed to the next term of the circuit court of Marshall county." It appears from the recitation in this bond that the defendant was actually sentenced to pay a fine, however, the transcript filed by the justice of the peace does not show this to be a fact. The state in the court below made no attempt to amend the transcript of the record and it stands as quoted above. I think it is clear from this record that the justice of the peace did not enter a judgment adjudging the defendant guilty as charged and for this reason the circuit court had no jurisdiction to try this case. Young v. State, 140 Miss. 165.
Appellant appeals from a conviction and sentence by the circuit court of Marshall county of unlawfully carrying concealed a deadly weapon. The case originated in a justice of the peace court on affidavit. After verdict, and before sentence in the circuit court, a motion in arrest of judgment was filed on the ground that the circuit court had no jurisdiction, for the reason that no judgment had been entered by the justice of the peace.
The action of the circuit court in overruling this motion is assigned as error.
The transcript of the record of the justice of the peace shows what was probably considered as a judgment. It reads as follows:
"Other proceedings in full. This day this cause coming up for trial all parties answer ready. The affidavit was read to Jim Clark, Jr., plead not guilty, waive examination and take appeal to the next circuit court with Jim Clark and J.B. Barnett on the bond. This 10th day of October, 1927.
"H.L. GORDON, Justice of the Peace."
The jurisdiction of the circuit court over appeals from a justice of the peace court is conditioned upon the rendition of judgment by such justice of the peace and the execution of an appeal bond. Ball v. Sledge, 82 Miss. 747, 35 So. 214; Young v. State, 140 Miss. 165, 105 So. 461.
It conclusively appears that the justice of the peace in this case rendered no judgment, but permitted the appellant to "waive examination." The circuit court was without jurisdiction.
The judgment is reversed and the cause remanded, with directions to the court below to issue writ of procedendo to the justice of the peace.
Reversed and remanded.