City of Jackson v. Belew

• Decision Date: 13 December 1915
• Docket Number: 17228
• Citation: 110 Miss. 243,70 So. 346
• Court: Mississippi Supreme Court
• Parties: CITY OF JACKSON v. BELEW

70 So. 346

110 Miss. 243

CITY OF JACKSON v. BELEW

No. 17228

Supreme Court of Mississippi

December 13, 1915

APPEAL from the circuit court of Hinds county. HON. W. A. HENRY Judge.

Habeas Corpus by John Belew. Relator discharged and the city of Jackson appeals.

This is an appeal by the city of Jackson from a judgment entered by the circuit judge, discharging the appellee from custody on a writ of habeas corpus. Appellee had been convicted in the justice of the peace court for selling intoxicating liquors and a fine of one hundred dollars imposed. It being shown at the trial that he was an habitual violator of the liquor laws, the justice of the peace, acting under section 1561 of the Code of 1906, in addition to the fine imposed required appellee to enter into bond in the sum of one thousand dollars conditioned to keep the peace and be of good behavior and not sell intoxicating liquors for a period of two years. Appellee tendered an appeal bond in the sum of two hundred dollars, which was approved by the justice of the peace thereby perfecting his appeal to the circuit court from the judgment imposing the fine of one hundred dollars, and also tendered another bond for the purpose of appealing from that part of the judgment requiring him to give the peace bond. The justice of the peace refused to approve the last bond for the reason, as set out by him, that "the condition to keep the peace pending appeal is not incorporated in said bond." The jailer having refused to release appellee from custody until he had executed the peace bond, a writ of habeas corpus was sued out before the circuit judge, who entered a judgment discharging the relator, from which the city appeals.

Affirmed.

L. C Hallam, for appellant.

The only point for consideration presented by this appeal is a construction of section 1561, Code of 1906. That section reads as follows: "The same" (Peace Bonds) "Convict of crime less than felony may be made to give peace bonds.--Every court before which any person shall be convicted of an offense less than felony may, in addition to the penalty prescribed by law, require the convict to enter into bond in a reasonable sum, with or without sureties, to keep the peace and to be of good behavior for any time not longer than two years, and may order him to stand committed until such bond be executed; and for any breach thereof it may be proceeded on by scire facias as in other cases."

It will be noted that sections 1548 to 1561, inclusive, relate to peace bonds. Section 1548 is headed "Peace Bonds;" and the heading of each of the following sections down to an including section 1561, is "the same;" that is, each section relates back and refers to the general subject "Peace Bonds."

By section 1548 one may be required to execute a peace bond where the court adjudges that an offense is threatened only, though no offense has actually been committed. The measure is a preventive one, in the nature of a quia timet. From a requirement by a justice of the peace that one give this peace bond an appeal to the circuit court is provided for by section 1551. But, while an appeal is provided for, in order that the purpose for which the law was enacted and the bond required may not be defeated it is too plain for argument that, although an appeal from such requirement may have been prosecuted, yet, pending the appeal, and before the person required to give such peace bond can secure his liberty, the peace bond required must be executed. Com. v. Ward, 4 Mass. 497.

But one bond is required by section 1551, and that is a peace bond, and, in order for such peace bond to operate as an appeal bond also, there must be "the further condition in the bond that the appellant shall pay all cost in case it shall be adjudged against him in the circuit court." I wish to here call the court's attention to the fact that the word "bonds" in the fourth line of section 1551 is a misprint. The word should be in the singular number "bond." This is apparent, not only from the context of the statute when it speaks of "the further condition" in the "bond", but also from an examination of section 1479 of the Code of 1892 (of which this section is a rescript) where the word "bond" is used. Also the singular number "bond" is used in the same connection in section 3129, Code of 1880.

Now it will be seen that section 1561, Code of 1906, provides for no appeal from the requirement to give the peace and good behavior bond, but does provide that the court may order him (the convict) "to stand committed until such bond be executed." Not until the requirement to give the bond be appealed from, but until the bond be, in fact, executed.

The contentions of the appellant are these: First: That all the sections above referred to...