Allen v. State

• Decision Date: 21 November 1910
• Citation: 53 So. 498,98 Miss. 192
• Court: Mississippi Supreme Court
• Parties: LULA ALLEN v. STATE

53 So. 498

98 Miss. 192

LULA ALLEN v. STATE

Supreme Court of Mississippi

November 21, 1910

October 1910

APPEAL from the circuit court of Hinds county, HON.W. A. HENRY Judge.

Lula Allen was convicted in the circuit court on an appeal from a conviction in the police justice court of the city of Jackson for a violation of a city ordinance and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Louis C. Hallam, for appellant.

This case should be reversed because the transcript of the record (from the city police court) is certified to by A. P. Lusk clerk, by T. J. Wharton, deputy clerk, and not by the police justice as required by law, and because the evidence fails to make out a case against the defendant. We have already referred to the failure of the city to make out a case. As to the failure of the police justice to certify to the record from his court, it is only necessary to quote the language of this court, as follows:

"Section 85, Code of 1906, provides that: 'The Justice of the peace, mayor or police justice of any city, town or village from whose decision an appeal shall be taken shall at once transmit to the clerk of that (the circuit) court a certified copy of the proceedings, etc. This section clearly contemplates that the record shall be certified to by the justice of the peace, mayor, or police justice; and, this being the requirement of the statute, the certification by any other person does not answer the requirement of the statute. The appeal was not certified to as required by law and we think the action of the court in dismissing the appeal proper, and the action of the court below in so holding is approved."

City of Greenwood v. Weaver, 50 So. 981.

For the reasons stated, it is submitted that the court below erred in overruling appellant's motion for a new trial, and that the judgment should be reversed and the appellant discharged.

Carl Fox, assistant attorney-general, for appellee.

Counsel for appellant, after the city had rested its case, moved to exclude the evidence, and asked for a peremptory instruction for the defendant on the ground that, among other things, transcript of the record of the trial, of the proceedings in the police court was certified by the deputy clerk, the certificate being signed A. P. Lusk, clerk, by T. J. Wharton, deputy clerk; and that under section 85, as construed in the City of Greenwood v. Weaver, 50 So. 981, the transcript should have been certified by the police justice.

If the court follows that case, then this defendant must go free, because it is exactly in point. I respectfully submit that that case is not the law. Section 1413 of the Code of 1906 is in part as follows:

"A person shall not be acquitted or discharged in a criminal case, before a verdict, for any irregularity or informality in the pleadings or proceedings."

Section 1968 of the Code of 1906 is as follows:

"All public officers in this state having the charge or custody of any public books, records, papers, or writings, are authorized to certify copies of the same, which copies shall be received in evidence in all of the cases where the original or sworn copy would be in evidence."

I do not see any reason why this section should not apply in the present case. Certainly, its language is broad enough to cover.

I respectfully submit that section 85 of the Code of 1906 does not contemplate, as was said in Greenwood v. Weaver, supra "that the record shall be certified to by the justice of the peace, mayor, or police justice." Its language is that "the justice of the peace, mayor, or police justice . . . shall at once transmit to the clerk of that court a certified copy of the record of the proceedings." All that he is required to do by the statute is to "transmit a certified copy." In other words, since it is a record of...