Calhoun v. State
| Decision Date | 19 June 1905 |
| Citation | 38 So. 660,86 Miss. 553 |
| Court | Mississippi Supreme Court |
| Parties | DRUSILLA CALHOUN v. STATE OF MISSISSIPPI |
FROM the circuit court of, first district, Hinds county, HON DAVID M. MILLER, Judge.
Mrs Calhoun, the appellant, was tried and convicted of a misdemeanor, unlawfully selling intoxicants, before a justice of the peace. She appealed to the circuit court, and was there tried de novo and again convicted; and she appealed to the supreme court. The facts upon which the legal questions involved depend are stated in the opinion of the court.
Affirmed.
Harris Powell & Harris, for appellant.
The circuit court cannot, on appeal, try a party except on the affidavit made in the court below, and the only identification of such affidavit is the certificate of the lower court as provided by Code 1892, §§ 83, 84. Such certificate is absolutely necessary. See Pettus & Stevens v. Patterson, 47 Miss. 228 .
We contend that the question of jurisdiction can be raised at any time, because without a certified transcript of the proceedings before the lower court the circuit court has jurisdiction of neither the person nor the crime charged. See Green v. Creighton, 10 Smed. & M., 159; Lester v. Harris, 41 Wis. 668; Yalobusha County v. Carbry, 3 Smed. & M., 529; Buckingham v. Bailey, 4 Smed. & M., 538, 549, 559.
William Williams, attorney-general, for appellee.
The justice of the peace substantially complied with Code 1892, § 84. The justice of the peace should have certified to the record transmitted to the circuit court, but appellant was the party to perfect his appeal. If the appeal had been dismissed in the circuit court, the judgment of the lower court certainly would have stood. Appeal cases from the justice's to the circuit court are tried de novo, and appellant in this case complied with the law relative to appeals by executing an appeal bond, and went to trial upon the record as it appeared in the circuit court. Having thus obtained an opportunity to have been acquitted upon the record, he cannot now be heard to complain. It was his duty to see that the appeal, in all respects, was before the circuit court. The presumption is that the state waived its right to have a certified copy of the record of the justice of the peace, or else, in all probability, a motion would have been made to dismiss the appeal because the record was not in strict compliance with the statute. The record shows that the affidavit, appeal bond, and transcript of the record were before the court.
The contention of counsel is not supported by Pettus v. Patterson, 47 Miss. 228.
On October 27, 1904, an affidavit was made before T. M. Lemly, a justice of the peace of the fifth district of the county of Hinds, charging Drusilla Calhoun with having willfully and unlawfully sold intoxicating liquors on October 22, 1904. Defendant was arrested, tried, convicted and fined $ 250 and costs. She filed her appeal bond, which was approved October 28, 1904. This record recites that "on March 6, 1905," the first day of the next circuit court of said county, "the following papers on appeal from the justice's court of T. M. Lemly, justice of the peace, were filed in the circuit clerk's office of said circuit court--to wit, first, the affidavit" (which is fully set out); and, secondly, under the head of "Transcript of Record," appears this: Then follows a copy of the judgment of conviction, dated October 28, 1904, signed by T. M. Lemly, justice of the peace, and the appeal bond to the circuit court, which is also fully set forth, with the indorsement of approval of same by said...
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Brasham v. State
... ... certificate was filed. Our answer to that is first, that ... since the point has been raised, the certificate has been ... substituted or re-established by order of the circuit court ... of Lee county and the same appears in the record at this ... time; second, under the authority of Calhoun v ... State, 86 Miss. 553, 38 So. 660, the appellant cannot ... now raise that point ... In the ... instant case we have defendant with the full knowledge of the ... defect in the appeal which was his appeal, sitting silently ... by and saying nothing about it, but preferring to ... ...
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Gilmer v. State
...sections 69 and 71, Hemingway's Code 1927. See Hughston v. Cornish, 59 Miss. 372; Ball v. Sledge, 82 Miss. 747, 35 So. 214; Calhoun v. State, 86 Miss. 553, 38 So. 660. Want a judgment sentencing appellant for the crime in this case was pointed out in the court below. Reversed and remanded. ...
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Travillion v. State, 37117
...in the lower court can be raised for the first time here. Rodgers v. City of Hattiesburg, supra. 1 The State cites Calhoun v. State, 86 Miss. 553, 38 So. 660, holding that under the same state of facts presented by this record, the defendant could not, for the first time, avail in this Cour......