Bang v. State
| Decision Date | 23 March 1914 |
| Docket Number | 17259 |
| Citation | 106 Miss. 824,64 So. 734 |
| Court | Mississippi Supreme Court |
| Parties | PIER BANG v. STATE |
APPEAL from the circuit court of Harrison county, HON. T. H BARRETT, Judge.
Pier Bank was convicted of selling intoxicating liquors and appeals.
The facts are fully stated in the opinion of the court.
Affirmed.
Mize & Mize, for appellant.
We think that the appellant has a right to dismiss his appeal any time before a verdict by the jury or before the jury retired.
2 Ency. Pleading and Practice, p. 51, lays down the following rule and we think it decisive of our contention: "It is the general rule that the appellant may have his own appeal dismissed at any time while the cause remains within the jurisdiction of the appellate court."
There is no difference between a civil case and a criminal case in this respect. In civil cases it is not disputed but that the appellant would have the right to dismiss his appeal where there was no counter claim by the appellee.
See, also, the following cases which we think in point: Wartelski v. State, 44 S.W. 510; State v. Read, 105 S.W. 601; Rivera v. State, 105 S.W. 193; Lee v. State. 124 P. 1132.
We think the state had no right to compel appellant to continue with the trial when he moved the court to dismiss his appeal and elected to take the judgment of the lower court. Hence, we submit that the court improperly overruled appellant's motion for a new trial and that this case, for these errors, should be reversed.
Geo. H. Ethridge, assistant attorney-general, for the state.
Counsel for appellant contends in his brief that appellant's motion to dismiss his appeal, after evidence for the state had been heard should have been granted. To support this contention numerous cases are cited. All the witnesses for the state had been introduced and the state had rested its case. To adopt this view of the law would mean that the state, in many cases would be put to a useless expense and waste of time. A person convicted of crime in the justice's court could appeal to the circuit court and if the state made out a good case there, and if all of the state's witnesses were present, he could get his case dismissed and take the lighter sentence imposed by the justices' court. If, however, the state's witnesses happened to be absent or if the state did not make out as strong a case against the defendant as it did in the lower court he would then proceed with the trial. We respectfully submit that this imposes an unjust burden on the state.
Counsel for appellant cites numerous cases from other states, which I will briefly allude to. In the case of State v. Read, 105 S.W. 601, an appeal was carried to the supreme court of Missouri. After case was briefed appellant filed a formal dismissal of his case. In the case of Rivera v. State, 105 S.W. 193, an ex parte affidavit was filed asking the court to dismiss the appeal. This appeal was dismissed by the supreme court of Texas. In the case of Lee v. State, 124 P. 1132, the motion to dismiss was filed in the supreme court.
In the present case a simple motion was made to dismiss after all of the state evidence had been produced. We submit that it was not the intention of section 87 of the Code of 1906, for appellant to dismiss his appeal at will. In reference to an appeal to the circuit court this section reads as follows: "On his appearance in the circuit court the case shall be tried anew and disposed of as other cases pending therein." 2 Enc. of Pl. & Pr., p. 51, is as follows: "An intermediate appellate court cannot dismiss an appeal arbitrarily and without cause."
We submit that the cause for a dismissal should be shown by appellant and the trial court was not authorized in dismissing the case arbitrarily and unless cause for so doing was shown by appellant.
It is manifest from the record that appellant is guilty of the crime charged against him, and he cannot complain that the sentence is excessive.
We respectfully submit that the case should be affirmed.
Appellant was convicted in a justice of the peace court for the offense of unlawfully selling intoxicating liquors, and fined one hundred and fifty dollars. He appealed to the circuit court, and was there convicted and sentenced to pay a fine of five hundred dollars and to be imprisoned for a term of three months in the county jail.
On the trial in the circuit court, when the state had introduced all of its testimony and rested, appellant moved the court for permission to dismiss his appeal. The motion was overruled. This action of the court is assigned as error. By statute (section 87 of Code of 1906) a person convicted of a criminal charge in the justice of the peace court can appeal his case to the circuit court. It is provided in the statute that "on his appearance in the circuit court the case shall be tried anew and disposed of as other cases pending therein." It...
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Nelson v. State
...The county court found that, under the Uniform Rules of Circuit and County Court Practice, and the prerules cases of Bang v. State, 106 Miss. 824, 64 So. 734 (Miss.1914), and Thigpen v. State, 206 Miss. 87, 39 So.2d 768 (Miss.1949), the county court may dismiss an appeal from municipal cour......
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Thompson v. City of Birmingham
...the theory of a discretionary power that expressly runs through all cases, and is particularly made manifest by the case of Bang v. State, 106 Miss. 824, 64 So. 734, which it was held that the appellant could not, as a matter of right, after arriving in the circuit court, dismiss his appeal......
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Nelson v. State
...The county court found that, under the Uniform Rules of Circuit andCounty Court Practice, and the prerules cases of Bang v. State, 106 Miss. 824, 64 So. 734 (Miss. 1914), and Thigpen v. State, 206 Miss. 87, 39 So. 2d 768 (Miss. 1949), the county court may dismiss an appeal from municipal co......
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Peeples v. State, 38660
... ... [216 Miss. 801] Appellant also contends that his motion made at the beginning of the trial in the circuit court for his appeal from the justice of the peace court to be dismissed should have been sustained. There is no merit in this contention. Bang v. State, ... 106 Miss. 824, 64 So. 734; Thigpen v. State, 206 Miss ... ...