Opinion
No. 39314.
November 8, 1954.
1. Criminal law — Mayor's Court — jurisdiction — affidavit prerequisite.
Where motorist was convicted in Mayor's Court on charge of drunken driving, and it appeared that affidavit charging offense was not signed until day following conviction, Mayor's Court did not have jurisdiction, and, on appeal to Circuit Court, no jurisdiction was acquired.
2. Criminal law — same — same — same.
An affidavit is a prerequisite to prosecution in Mayor's Court for misdemeanor, and Mayor's Court has no jurisdiction without an affidavit.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Clay County; JOHN D. GREENE, JR., Judge.
B.H. Loving, West Point, for appellant.
I. The Circuit Court had no jurisdiction because the affidavit was made subsequent to the time the judgment was rendered in the Mayor's Court. Bigham v. State, 59 Miss. 529; Bramlette v. State, 193 Miss. 24, 8 So.2d 234; Powell v. State, 196 Miss. 331, 17 So.2d 524.
II. The record shows that the said affidavit was not filed in the Circuit Court.
III. The affidavit does not state the place in the city where it is alleged that the automobile was being unlawfully driven. Bennett v. State, 169 Miss. 864, 154 So. 276.
IV. The affidavit is void because it attempts to charge violations of both the city ordinances and the statutes of the State. Washington v. State, 93 Miss. 270, 46 So. 539.
V. The transcript was insufficient because it was wholly undated. Travillion v. State, 206 Miss. 256, 39 So.2d 775; Sec. 1199, Code 1942.
VI. There was no proof offered as to the corporate existence of the municipality or of its ordinances. Kyle v. Calhoun City, 123 Miss. 542, 86 So. 340; Naul v. McComb City, 70 Miss. 699, 12 So. 903; Watkins v. Brookhaven, 134 Miss. 556, 99 So. 363.
VII. The lower court committed reversible error in ruling on the instructions. Ball v. State, 205 Miss. 521, 36 So.2d 159.
VIII. The judgment of the Circuit Court was erroneous because it did not specify whether appellant was convicted of a violation of the city ordinances or of the State law. Washington v. State, supra.
Thomas J. Tubb, West Point, for appellee.
I. The first assignment of error argued in the brief of the appellant, that the Circuit Court had no jurisdiction because the affidavit was made subsequent to the time the judgment was entered in the Mayor's Court, is well taken and under the authority of the case of Bramlette v. State, 193 Miss. 24, 8 So.2d 234, and the cases therein cited are decisive of this question; and unless these cases are overruled, and the writer of this brief does not think that they should be, this cause will have to be reversed and remanded, or reversed and the appellant discharged.
(Hn 1) The appellant, Allen Jordan, was tried and convicted on September 15, 1953, in the Mayor's Court of the City of West Point for having willfully and unlawfully driven a motor vehicle while under the influence of intoxicating liquor on September 13, 1953. At the time of his trial and conviction, there was no affidavit pending before the court wherein he had been charged with having committed the said offense. The affidavit does not purport to have been signed until October 16, the day following his conviction and his sentence to pay a fine of $100 and costs. Therefore the mayor's court did not have jurisdiction to try and convict the defendant and to render the judgment complained of. On appeal to the circuit court, no jurisdiction was acquired there since it was held in the case of Bramlette v. State, 193 Miss. 24, 8 So.2d 234, that: "If a justice of the peace has no jurisdiction, the circuit court acquires none upon appeal. Ivy v. State, 141 Miss. 877, 106 So. 111. The affidavit is a prerequisite to prosecution for misdemeanor. Code 1930, Sec. 2098. The affidavit is the foundation of the jurisdiction of the justice of the peace. Coulter v. State, 75 Miss. 356, 22 So. 872; 22 C.J.S., Criminal Law, Sec. 303, p. 457, and the court has no jurisdiction without it. Bigham v. State, 59 Miss. 529."
(Hn 2) The foregoing principle is equally applicable to a prosecution in the mayor's court. And it was further held in the Bramlette case, supra, that "A paper not sworn to is not an affidavit; the oath is its essence." The affidavit having been made after the trial and conviction, and the mayor's court having acquired no jurisdiction to try and convict the accused, the case must be reversed and remanded, as was done in the Bramlette case, supra.
Reversed and remanded.
Hall, Lee, Kyle and Holmes, JJ., concur.