Opinion
No. 35616.
October 9, 1944.
1. CRIMINAL LAW.
There could be no appeal to the Supreme Court in a criminal case originating in a justice court and thence appealed to county court and from county court to circuit court where constitutional question was not involved (Code 1942, sec. 1617).
2. CRIMINAL LAW.
The right of appeal does not exist unless expressly given by statute and the right is not to be extended to cases not within the statute.
APPEAL from the circuit court of Hinds county, HON. H.B. GILLESPIE, Judge.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellant.
According to the affidavit, Charlie Warren was charged with disturbing the peace of the family of Philip Thomas, whose home was in very close proximity to a tourist court and cafe attached thereto which was owned and operated by Charlie Warren through his servants and agents and himself. The affidavit, as amended, sets out in detail the manner and method in which the operation of the tourist court and cafe was conducted. It alleged that the tourist court was operated as a prostitution camp, and that the cursing, the obscenities, and the vulgar, tumultuous and offensive conduct carried on in the tourist court with the loud and unusual noises in the cafe made by crowds of people and a mechanical music machine throughout the whole night disturbed the peace of the whole family. Charlie Warren was convicted in the justice court. He appealed to the county court where the affidavit was amended to more fully charge the offense. A demurrer was interposed by the defendant, which was sustained by the county court, from which judgment an appeal was taken to the circuit court, where the judgment of the lower court was affirmed and an appeal was taken at the request of the county attorney to the Supreme Court to get the law settled.
This prosecution was begun on the idea that there being no accessory to a misdemeanor, those who normally and wilfully provide the manner and means which caused the commission of a misdemeanor are liable as principals. Under Section 862, Code of 1930, in cases of this kind the principals are not confined to those who actually create the noise or utter the vile language or commit the obscenities themselves, but equally guilty are the ones who provide the place, provide the manner of the disturbances, provide the means and manner by which the disturbance was created, thereby facilitating the whole thing. The master hand which created these conditions could be called to account for disturbing the peace of the homes nearby. If the master mind that conceived and the hand that provided the means cannot be brought to account for the destruction of peace of the homes in question, then of course this case fails. Otherwise, this section of the law lives as a quick remedy to suppress and destroy the means which is disturbing the peace of the homes. The remedy furnished by this section is powerful and one of conviction, compelled with the requirement of a bond under Section 1349, and would get the answer quicker and more effectively than suppressing a nuisance in chancery court or any other.
Code of 1930, Sec. 862.
The rule in Mississippi is that in a misdemeanor there are no accomplices, but all who participate in, facilitate, aid and abet the commission of a misdemeanor are indictable as principals.
See Dean v. State, 85 Miss. 40, 37 So. 501; State v. Trewilder, 103 Miss. 859, 60 So. 1015, 1039.
And it has also been held that a master and servant relationship may, in criminal cases, constitute both the master and the servant as "principals."
Grantham v. State, 190 Miss. 887, 2 So.2d 150.
It is, therefore, seen that the charge in the affidavit that the appellant "facilitated, abetted and encouraged" the offense, and that he committed the alleged offense "through himself, his servants and agents" and that he committed same by "affording a place of such assemblage and conducting his business in the manner and method in which it was operated" and "by operating a cafe and tourist court in such a manner," etc., would be sufficient to charge appellee with a criminal offense provided the acts alleged to have been aided, abetted and facilitated by him constituted a crime and were sufficiently charged in the affidavit. For it is certain that if the appellee aided, abetted, facilitated and encouraged, or provided the means of, the commission of a misdemeanor, or operated his business in such a manner, either through himself or his servants, as to constitute a misdemeanor, then appellant is guilty and indictable and triable as a principal.
22 C.J.S., Sec. 83, Sec. 88, subsec. b, pp. 158, 159.
Appellee not represented.
An affidavit was made in the court of a justice of the peace charging or attempting to charge appellee with a misdemeanor, and on a trial the defendant was convicted and he appealed to the county court. In that court a demurrer to the amended affidavit was sustained, and the state appealed to the circuit court. There the action of the county court was affirmed, and the state has attempted to appeal to the Supreme Court.
Putting aside the question whether an appeal may be taken from the county court to the circuit court on an order sustaining a demurrer to an affidavit, we have no option other than to hold that there can be no appeal to the Supreme Court in a case originating in the justice court and thence appealed to the county court and from that court to the circuit court save in a case involving a constitutional question, and there is no such case here. Among the provisions of Section 705, Code 1930, Section 1617, Code 1942, is the following: "And provided further that there shall be no appeal from the circuit court to the Supreme Court of any case civil or criminal which originated in a justice of the peace . . . court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved . . ."
From early days it has been held in this state that the right of appeal does not exist unless expressly given by statute, and is not to be extended to cases not within the statute. For the stronger reason it does not exist when expressly excluded as is done by the quoted provision, applicable by its plain terms to criminal as well as to civil cases, and this without exception.
Appeal dismissed.