Opinion
No. 32745.
May 10, 1937.
CRIMINAL LAW.
Circuit court's judgment of dismissal of appeal from justice court's judgment finding defendant guilty of misdemeanor, merely reciting that appeal was dismissed with writ of procedendo to court below to enforce its judgment, held not authorized in absence of showing that defendant was called and thereby given opportunity to prosecute appeal, or other showing of affirmative default by defendant.
APPEAL from circuit court of Jefferson Davis county. HON. HARVEY McGEHEE, Judge.
Luper Martin, of Prentiss, for appellant.
It will at once be noted that this judgment of the court does not affirmatively show that appellant was called in the circuit court and given opportunity there to prosecute her appeal and present her defense before the appeal was dismissed.
Under the decisions of this court, we submit that there should have been in the judgment an affirmative showing that appellant was called in the circuit court and given an opportunity to defend. We do not think any further argument is necessary and cite:
Pool v. State, 169 So. 886; Wilson v. Town of Handsboro, 96 Miss. 376, 50 So. 982; Peacock v. State, 95 So. 647; Ingram v. State, 136 Miss. 291, 101 So. 380.
We respectfully submit that the judgment should be reversed, the case remanded and appellant be given opportunity to defend.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
Under the decision of this court in Ingram v. State, 136 Miss. 291, 101 So. 380, and the authorities there noted, the State submits that the appellant is entitled to a reversal here.
The appellant, Seamae Turner, was convicted in a justice of the peace court of Jefferson Davis county for a misdemeanor and appealed to the circuit court, a transcript being sent up to that court. During the term of the circuit court the following order was entered:
"It is ordered by this court that this case be dismissed with a writ of procedendo to the justice of the peace court to enforce its judgment."
The judgment did not recite that the defendant was called and made default in appearing, and under former decisions of this court it is error to enter such a judgment without reciting therein that the defendant was called, and thereby given a chance to prosecute an appeal, or some showing of an affirmative default on the part of the defendant appealing.
For this error, we must reverse and remand this case under the authority of Ingram v. State, 136 Miss. 291, 101 So. 380; Peacock v. State (Miss.), 95 So. 647; Wilson v. Handsboro, 96 Miss. 376, 50 So. 982; and Pool v. State, 176 Miss. 514, 169 So. 886.
Reversed and remanded.