Bynum v. State, 39447

• Decision Date: 10 January 1955
• Docket Number: No. 39447,39447
• Citation: 76 So.2d 821,222 Miss. 632
• Parties: B. G. BYNUM v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 821

76 So.2d 821

222 Miss. 632

B. G. BYNUM v. STATE of Mississippi.

No. 39447.

Supreme Court of Mississippi.

Jan. 10, 1955.

T. M. Bishop, Magee, for appellant.

J. P. Coleman, Atty. Gen., by Wm. E. Cresswell, Asst. Atty. Gen., for appellee.

HOLMES, Justice.

The appellant was charged by affidavit in the Justice of the Peace Court of District 1 of Smith County with the unlawful sale of intoxicating liquor. It was charged that the offense was committed in District 3 of said county and the State's proof so showed. Appellant was convicted and sentenced to pay a fine of $500 and to serve 60 days in jail. On appeal to the circuit court, he was tried de novo and again convicted, and sentenced to pay a fine of $500 and to serve 90 days in jail. From this latter conviction, he prosecutes this appeal.

There is no contention that the evidence was insufficient to warrant the jury in finding the appellant guilty of the offense charged. It is urged, however, by the appellant that the judgment of conviction should be reversed, first, because the justice of the peace of District 1 of Smith County was without jurisdiction to try the accused, and, second, because the circuit court erred in denying the appellant's application for a continuance, and, third, because the judgment of the court below is erroneous in that it is a judgment of conviction and sentence for the unlawful possession of intoxicating liquor, whereas the appellant was tried on a charge of the unlawful sale of intoxicating liquor.

The appellant's contention that the justice of the peace of district 1 of Smith County was without jurisdiction is based upon Section 1831 of the Mississippi Code of 1942, which provides as follows:

'Justices of the peace shall have jurisdiction concurrent with the circuit court of the county over all crimes concurring in their several districts whereof the punishment prescribed does not extend beyond a fine and imprisonment in the county jail; but if there be not a justice of the peace in the district in which any crime is committed qualified to try the accused, any justice of the peace of the county shall have jurisdiction thereof.'

The affidavit charging the appellant with the unlawful sale of intoxicating liquor was filed in the justice of the peace court of district 1 of said county on December 21, 1953. On the same date, a warrant was issued for the arrest of the accused, and he was arrested and placed in jail, and later on the same day, released on the execution by him of a bond requiring him to appear before the court on January 4, 1954. The trial of the case at the instance of the accused was continued from time to time until March 1, 1954, when he was tried by the justice of the peace of district 1 of said county, and convicted and sentenced to pay a fine of $500 and to serve 60 days in jail.

It is undisputed that on the date of the filing of the aforesaid affidavit and the arrest of the accused, there was no justice of the peace in district 3 of said county qualified to try the accused, the justice of the peace of said district of having theretofore resigned on December 7, 1953, and his resignation having been accepted on that date and a successor appointed. The successor qualified by filing his bond and oath of office on January 18, 1954. Thus it appears undisputed in the record that at the time the affidavit was filed with the justice of the peace of district 1 on December 21, 1953, there was not a qualified justice of the peace in district 3 to try the accused for the offense charged, but that on the date of the trial, to wit: March 1, 1954, there was a duly qualified justice of the peace in district 3 of said county. The appellant concedes that there was not a justice of the peace in district 3 qualified to try the accused at the time the affidavit was filed in the justice of the peace court of district 1, but he contends that because there was a justice of the peace in district 3 qualified to try the accused on March 1, 1954, the justice of the peace of district 1 was without jurisdiction. We are unable to agree with this contention. On the filing of the affidavit in the justice of the peace court in district 1, and upon the issuance of the warrant and the arrest of the accused, and his release on bond, the justice of the peace of district 1 acquired jurisdiction of both the person and subject matter of the cause. The jurisdiction having been lawfully acquired, it was not defeated by a subsequent qualification of a justice of the peace in district 3. In 21 C.J.S., Courts, Sec. 93, page 143, the rule is stated as follows:

'As a general rule, jurisdiction once acquired is not defeated by subsequent events, even though they are of such a character as would have prevented jurisdiction from attaching in the first instance.'

This rule was approved and adopted by this Court in the case of Barnes v. Rogers, 206 Miss. 887, 41 So.2d 58. We are accordingly of the opinion that the justice of the peace of district 1 was duly vested with jurisdiction to try the accused, and that being so vested, the circuit court on appeal was likewise vested with jurisdiction.

It is also contended by the appellant that the trial court erred in overruling his application for a continuance. The application was based upon the ground that his counsel had insufficient time following his employment to prepare the case for trial, and also upon the ground of the absence of three witnesses, namely: James Edward Bowen, Howard Bynum, and Earl Sims. It appears that on the first day of the term of the court the appellant appeared through counsel and requested that his case be specially set for the following Thursday, which request the court granted, and set the case accordingly. On said Thursday, the appellant appeared through a different counsel, who stated that he had just been employed and had not had sufficient time in which to prepare the case for trial. No explanation was made as to the non-appearance of counsel who appeared for the appellant on the first day of the term. Notwithstanding this situation, the court passed the case to the next day, Friday. We have repeatedly held that the granting or denying of an application for a continuance is of matter addressed to the sound discretion of the trial court and that the exercise of such discretion will not be disturbed unless there has been a manifest abuse of discretion. We find no such abuse in the instant case.

As to the witnesses, because of whose absence the continuance was sought, it appears that the witness Earl Sims appeared at the trial and testified in the appellant's behalf. If was shown that the witness Howard Bynum was a brother of the appellant and lived in Jackson, Mississippi, and there was no showing that his presence could not have been procured by the exercise of reasonable diligence. It was shown that the witness Bowen was in military service and beyond the jurisdiction of the court, and there was no showing that his presence could likely be procured at a subsequent term of the court. Furthermore, insofar as concerns the absent witness Howard Bynum and the witness James Edward Bowen, the application for continuance failed to set forth the substance of their testimony and, therefore, failed to conform to the requirements of Section 1520 of the Mississippi Code of 1942, and the action of the court in denying the continuance because of the absence of these witnesses was wholly warranted. We, therefore, find no error in the action of the trial court in overruling the appellant's application for a continuance.

The appellant further contends that the judgment of the court below should be reversed because it is a judgment...