City of Greeenwood v. Weaver

• Decision Date: 17 January 1910
• Citation: 96 Miss. 604,50 So. 981
• Court: Mississippi Supreme Court
• Parties: CITY OF GREEENWOOD v. JESSE WEAVER

50 So. 981

96 Miss. 604

CITY OF GREEENWOOD v. JESSE WEAVER

Supreme Court of Mississippi

January 17, 1910

March 1910

FROM the circuit court of Leflore county, HON. JAMES M. CASHIN Judge.

Weaver appellee, having been convicted before the municipal court of Greenwood for the violation of an ordinance of the city prohibiting the carrying of deadly weapons concealed appealed to the circuit court, where he was again tried and acquitted, a peremptory instruction having been given in his favor, and the city of Greenwood appealed to the supreme court.

The record of appeal from the municipal court to the circuit court was certified not by the mayor and ex-officio police justice of the city, but by the city clerk and ex-officio clerk of the police court.

The circuit court, because of this fact, sustained appellee's motion to exclude the evidence and granted the peremptory instruction.

[It will be noted that the supreme court in no way passed upon the effect of the acquittal, obtained as above stated.]

Affirmed.

E. V. Hughston, for appellant.

Appellee was tried in the circuit court of Leflore county on appeal from the police court of the city of Greenwood, on the charge of carrying a concealed weapon.

The evidence showed that he was found with a pistol concealed; and the city then introduced a certified copy of an ordinance of said city declaring all violations of the penal laws of the state amounting to misdemeanors to be in violation of the city ordinances. Objections were made to the introduction of this ordinance on several grounds. These objections being overruled, the city rested, and appellee made a motion to exclude the evidence, and for a peremptory instruction, assigning the following grounds: (1) Because the affidavit charges no offense; (2) Because the affidavit is void, having been made before the clerk of the city of Greenwood; (3) Because the record of the proceedings in the mayor's court is certified to by the clerk of the city, and the record of proceedings shows that the city of Greenwood has no regularly elected police justice, the mayor being ex-officio police justice.

The court below sustained this motion, granted appellee a peremptory instruction, and discharged him.

The first error assigned is the action of the court in sustaining the motion of appellee to exclude the evidence of the city and the whole motion is based upon a misconception of the scheme of the code chapter on municipalities with reference to municipal courts. The court established for hearing and determining all violations of municipal ordinances is, by said chapter, a police court and not a mayor's court, this police court being presided over by a police justice. Code 1906, § 3398. The record was transmitted to the circuit court on appeal as provided by Code 1906, § 89, which provides that "the justice of the peace, or mayor, or police court * * * shall at once transmit * * * a certified copy of his record of the case, etc." Note that in such code section "the police court" is used instead of mayor's court or police justice's court as in Code 1906, § 85, which provides for appeal in civil cases. So in appeal from police courts the certified record shall be transmitted by the court and not by the police justice or mayor, and the clerk, being the clerical officer of this court and the custodian of the records, is the...