Brasham v. State

• Decision Date: 14 December 1925
• Docket Number: 24364
• Court: Mississippi Supreme Court
• Parties: BRASHAM et al. v. STATE. [*]

106 So. 280

140 Miss. 712

BRASHAM et al. v. STATE. ^[*]

No. 24364

Supreme Court of Mississippi

December 14, 1925

Division B

1. CRIMINAL LAW. In state of record, presumed certification of record was not established in circuit court on appeal from justice.

On appeal from circuit court in case originating in justice court, it must be assumed that certification of the record of the justice claimed to have been made but lost was not established, and that therefore the circuit court did not have jurisdiction; there being no judgment of the circuit court showing such establishment, though evidence was introduced for such purpose.

2. CRIMINAL LAW. Jurisdiction may be questioned on appeal for first time.

Jurisdiction of trial court may be questioned for first time on appeal.

HON. C P. LONG, Judge.

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

Hardy Brasham and another were convicted, on appeal from justice court, of possession of liquor, and appeal. Reversed and remanded.

Judgment reversed and cause remanded.

Geo T. and Chas. S. Mitchell, for appellants.

The justice of the peace from whose judgment the appeal to the circuit court was taken, failed to certify his record to the circuit court. Therefore, the circuit court was without jurisdiction to try the case, and, it necessarily follows that this court is without jurisdiction. Rodgers v. City of Hattiesburg, 55 So. 481; Ruff v. Ontgomery, 36 So. 465, 83 Miss. 184; Ball v. Sledge, 35 So 214, 82 Miss. 747; Gardner v. R. R. Co., 29 So. 469, 78 Miss. 640; McPhail v. Blann, 47 So. 666, 95 Miss. 53; City of Greenwood v. Weaver, 50 So. 981, 96 Miss. 604; Allen v. State, 53 So. 498, 98 Miss. 192; Xydias v. Pellman, 83 So. 620, 121 Miss. 400. See especially-Cawthon v. State, 57 So. 224, 100 Miss. 834.

After counsel for appellants raised the above point relative to the failure of the justice of the peace to send up a certificate of the record of the case in his court, counsel for the state then alleged that a certificate of the record was sent up but had either been lost or destroyed.

The district-attorney filed a petition in the circuit court asking that the certificate of record be re-established and setting up as a reason therefor that same was sent up by the justice of the peace, and had either been lost or destroyed; and, further alleging that same was among the papers when the case was tried in the circuit court.

As far as the record is concerned, and, as a matter of fact, no order was ever made on this petition and none appears on the minutes or any record of the circuit court. We would especially call the court's attention to the failure of the state on this petition to sustain the allegations set forth in the petition. In fact, the proof falls far short in sustaining the allegation that the certificate was among the papers when the case proceeded to trial in the circuit court.

The district-attorney at no place in his testimony states that he ever saw the certificate of record in this case. In fact, he does not even state that he saw the papers in this particular case before it came on for trial in the circuit court. So, the weight of his testimony as constituting proof of any fact amounts to nothing.

The burden of proof in this matter was upon the state. The state set up facts and asked for affirmative relief. The answer of defendant denied the facts. Therefore, the burden was upon the state to prove three things; first, that there was a former certificate of record; second, that this certificate of record was sent up to the circuit court and there filed; and lastly, that the matters and things set forth in the substituted certificate are a true copy of those contained in the alleged lost or destroyed certificate.

We feel confident in stating that the evidence adduced upon the hearing of this cause wholly fails to even tend to establish the existence of a correct certificate of record at any time, and wholly fails to establish that it was ever filed with the circuit clerk, or was ever before the circuit clerk.

The fact that no order was made on this petition is glaring and apparent. The record is as "silent as the tomb" as to any order ever being made, relative to the re-establishment of this alleged lost record.

Sometime after the adjournment of the November Term, 1924, counsel for the state detected this fact, and, at the March Term, 1925, filed their motion requesting the court to enter an order "nunc pro tunc," ordering this certificate of record to be re-established and engrossed upon the minutes and sent to the supreme court.

Counsel for the state proceeded upon the idea that an order was made at the November Term, 1924, to this effect and that the clerk omitted to enter same upon his minutes. It is true that the minutes show no order was ever made, and, it may have been possible, if this was all, that the clerk did omit to enter an order made in the matter by the court. But, what does the record show? What does the transcript, supposed to contain all the proceedings in a case, show? Both the record and the transcript are absolutely barren of any order whatever being made on this proceeding. The transcript contains everything else that we usually find in one, but as to any order ever being made on the petition filed by the district attorney at the November Term, 1924, it is absolutely silent.

Now we recognize the fact that where an order was made at a previous term of court, and the clerk omitted to enter same upon the minutes, that the court has the power to enter an order "nunc pro tunc" in order to show what proceedings were really had. But, on the other hand, when it is inescapable, as in this case, that no previous order was ever made, the court cannot, and has no power to enter an order "nunc pro tunc" and attempt through such an order to show what ought to have been done, or what should have been done, but which, as a matter of fact, was not done. A "nunc pro tunc" order is only available to establish what was done at a former term, not what should have been done, or ought to have been done. See 29 Cyc.--Orders--1516B; 20 R. C. L.--Orders of Court, 513, section 2; Gray v. Thomas, 12 S. & M. 111; McRaney v. Coulter, 39 Miss. 390; Nichols v. Walton, 90 So. 157.

We respectfully submit that the case is in the same attitude as it was when it was first appealed. Therefore, since there was not and is not, as far as this record is concerned, a certificate of record of the proceedings had in the court of the justice of the peace, the circuit court below was without jurisdiction and, therefore, the supreme court is without jurisdiction, and this case should be reversed and remanded.

E. C. Sharp and J. L. Byrd, assistant attorneys-general, for the state.

When this case first reached this court it was discovered that there was no certificate of the justice of the peace as to the appeal in the cause, but on motion made for that purpose time was given within which to perfect the record, and accordingly, on the 26th day of March, 1925, an order was entered in the circuit court of Lee county establishing the certificate of record of the justice of the peace, and the same has been certified to this court. In addition to that is found: (1)...