Drummond v. State

Decision Date12 December 1938
Docket Number33366
Citation184 Miss. 738,185 So. 207
CourtMississippi Supreme Court
PartiesDRUMMOND v. STATE

APPEAL from the county court of Newton county HON, G. H. BANKS Judge.

D. C (Doc) Drummond was convicted of forgery, and he appeals to the Supreme Court. On appellant's motion to transfer the case to the circuit court as a court of appeals. Motion overruled.

Motion to transfer cause sustained.

W. I Munn, of Newton, R. H. Day, of Decatur, and Brewer & Hewitt of Jackson, for appellant.

Appellant was indicted for forgery in the Circuit Court of Newton County, and said indictment was transferred to the County Court of Newton County, where trial resulted in a verdict of guilty, and a sentence of five years in the State Penitentiary was imposed by the County Judge. From said judgment of the County Court, appellant prosecuted an appeal which the Circuit Clerk, pursuant to Chapter 256 of the Laws of 1932, forwarded to this court.

Section 704 of the Code of 1930 reads in part as follows: ". . . Appeals from the county court shall be made to the circuit court on application made therefor and bond given according to law."

By virtue of Chapter 256 of the Laws of 1932 the Legislature sought to amend the above quoted provision in so far as it applies to felony cases which have been transferred from the Circuit Court to the County Court for trial. The pertinent part of this chapter reads as follows: " . . . Provided, however, that when appeals are taken in felony cases which have been transferred from circuit court to the county court for trial, and have been there tried, such appeals from the judgment of the county court shall be taken direct to the Supreme Court of the State of Mississippi.

"Sec. 2. That this act take effect and be in force from and after its passage. Approved February 5, 1932."

The constitutionality of what is known as the County Court Act (Chapter 131, Laws of 1926) was discussed at length in the case of State v. Speakes, 144 Miss. 125, 109 So. 129. In this case, this court held the County Court Act constitutional.

In 1930 the Legislature amended the County Court Act by conferring on the county court's jurisdiction to circuit courts. This provision was challenged in the case of Ex Parte Tucker, 164 Miss. 20, 143 So. 700. This section, which is 694 of the Code of 1930, was held constitutional.

In Ex Parte Tucker, supra, this court held Section 694 of the Code of 1930 to be constitutional for the reason that by virtue of Section 172 of the Constitution, the Legislature is given the power to establish "such other inferior courts as may be necessary." However, as this court pointed out in that decision: inferior courts established by the Legislature must be in truth and in fact inferior courts.

By virtue of section 694, Code of 1930, wherein the statute provided: " . . . in felony cases not capital, wherein indictments have been returned by the grand jury the circuit court may transfer with full jurisdiction all or any of the same, in its discretion, to the county court for trial;" the Legislature gave to the County Court jurisdiction vested in the circuit court, and then when the Legislature went further and provided by Chapter 256 of the Laws of 1932 that: ". . . provided, however, that when appeals are taken in felony cases which have been transferred from circuit court to the county court for trial, and have been there tried, such appeals from the judgment of the county court shall be taken direct to the Supreme Court of the State of Mississippi, " the Legislature, in effect, took from the circuit court the supervisory power over the county court, and by so doing, in this regard, brought the county court up to the level of the circuit court, and thus destroyed the superiority of the constitutional court.

Unquestionably, Chapter 256 of the Laws of 1932, insofar as it seeks to amend section 704 of the Code of 1939, is unconstitutional, and therefore this appeal should be tried in the Circuit Court of Newton County, rather than in this court.

W. W. Pierce, Assistant Attorney-General, for the State.

In presenting the question of whether or not that part of Chapter 256 of the Laws of 1932, providing that appeals in felony cases which have been transferred from the Circuit Court to the County Court and there tried, shall be taken direct from the County Court to the Supreme Court, is constitutional, it is necessary to review the pertinent parts of the Constitution of Mississippi of 1890, setting up the state's judicial department. Section 144 of the Constitution of 1890 provides: "The judicial power of the state shall be vested in a Supreme Court and such other courts as are provided for in this Constitution."

A fair interpretation of this section of the Constitution would be that the judicial power of the state is vested in the Supreme Court and such other courts as are created by the Constitution and, in addition thereto, such courts as the Constitution provides may be established by the Legislature.

Section 156 of the Constitution of 1890 provides: "The circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court, and such appellate jurisdiction as shall be prescribed by law."

From this it is clear that the Circuit Court has original jurisdiction in all matters civil and criminal in this state not vested by the Constitution in some other court. It is also clear that the Circuit Court has such appellate jurisdiction as may be prescribed by law. In other words, the power of the Circuit Court to exercise its appellate jurisdiction depends entirely upon the provisions made therefor by the Legislature.

Section 172 of the Constitution of 1890 provides: "The Legislature shall, from time to time, establish such other inferior courts as may be necessary, and abolish the same whenever deemed expedient."

It was under authority of this last quoted constitutional provision that the Legislature established the County Court. The County Court being established under authority of this provision is a constitutional court in that it is created by the Legislature under authority delegated by the Constitution.

The power granted by the Constitution to the Legislature to establish "such other inferior courts" necessarily implies the power to clothe such courts, when created, with part of the jurisdiction which had been vested in the courts established by the Constitution. Otherwise, they could have no jurisdiction whatever for the Constitution had disposed of all criminal jurisdiction.

Houston v. Royston, 7 How. 543.

As we interpret the above constitutional provisions, the right to have the determination of an inferior court reviewed by a higher or superior court does not necessarily mean that said determinations must be reviewed by the Circuit Court, because, under section 156 of the Constitution, the Circuit Court can have no appellate jurisdiction except that prescribed by the Legislature.

The County Court Act, Chapter 131, Laws of 1926, as originally enacted, was held constitutional, except that part which provided for the trial of appeals by the circuit judges, in vacation, without notice.

State ex rel. Knox v. Speakes, 144 Miss. 125.

It has also been settled by this court that the Legislature has constitutional authority to confer on the County Court jurisdiction to try felony cases, not capital, transferred from the Circuit Court when the statute leaves to the discretion of the Circuit Court the determination of whether any or how many indictments, charging such felonies, shall be transferred.

Ex Parte Tucker, 164 Miss. 20.

It is not essential, in order to sustain the authority of the Legislature to establish the County Court and provide for a direct appeal from the County Court to the Supreme Court, to consider the County Court either inferior, equal or superior to the Circuit Court, or to any other court save that of the Supreme Court which is specifically mentioned in section 144 of the Constitution.

The County Court Act, when first passed by the Legislature, was inferior to the Circuit Court. The Circuit Court, by virtue of the statute itself, possessed the power to supervise, revise, affirm or reverse its judgments and decrees. It was also inferior to the Supreme Court. But when the Legislature gave to the County Court jurisdiction to try felony cases, less than capital, transferred to it from the Circuit Court, and provided for a direct appeal in such cases to the Supreme Court, it became in that respect, of the same degree as that of the Circuit Court, yet inferior to the Supreme Court, because the Supreme Court possessed the power to review its judgments with full supervisory and controlling authority as if such cases had been tried in the Circuit Court. That meets with every constitutional requirement.

Thomas v. State, 5 How. 20.

If all courts established by authority of section 172 of the Constitution must be inferior to the Circuit Court in the sense that the Circuit Court must review and supervise their judgments and decrees, then the framers of the Constitution, in practical effect, failed to provide for the future growth in volumes of court trials, and, thereby, set up the judicial machinery in such a way, that no matter what the needs may be, such needs are limited by the ability of the Circuit Court to dispatch the business which it alone can transact and also that of the courts inferior to the Supreme Court.

The framers of the Constitution intended that the Legislature consult the necessities of the people and the expediency therefor, so as not to involve the judicial system in confusion and mar its efficiency to serve the people.

Bell v. West Point, 51 Miss. 262.

We may not...

To continue reading

Request your trial
26 cases
  • Winder v. State
    • United States
    • Mississippi Supreme Court
    • June 30, 1994
    ...see In re Estate of Kelly, 193 So.2d 575, 578 (Miss.1967); Kittrell v. O'Flynn, 203 Miss. 164, 33 So.2d 628 (1948); Drummond v. State, 184 Miss. 738, 185 So. 207 (1938); Russell v. Federal Land Bank, 180 Miss. 55, 176 So. 737 (1937); Hughes v. Gully, 170 Miss. 425, 153 So. 528 (1934); White......
  • Faulkner v. Middleton
    • United States
    • Mississippi Supreme Court
    • September 11, 1939
    ... ... admitted that the wedge involved in this case is "a ... simple tool." The said wedge being a "simple tool, ... " the law in this state relative thereto is as stated in ... Wausau Southern Lbr. Co. v. Cooley, 130 Miss. 333, ... 94 So. 228, where it was held that the rule that a ... it carried with it the stated power and duty as a part of ... that section as fully as if therein written in so many words ... Drummond v. State, Miss., 184 Miss. 738, 185 So ... 207, 210 ... The ... Court has never attempted to prescribe any elaborate formula, ... ...
  • Kennington-Saenger Theatres v. State ex rel. Dist. Atty.
    • United States
    • Mississippi Supreme Court
    • June 12, 1944
    ... ... bound by an appearance in court on its behalf by an ... unauthorized official to any greater extent than an ... individual could be bound by the act of a person assuming to ... sue on his behalf without authority." And, in the case ... of Drummond v. State, 184 Miss. 738, 185 So. 207, ... 209, the Court announced the rule to be that: "The ... Supreme Court in all ... [18 So.2d 486] ... cases is bound to inquire into its own jurisdiction, and ... decline to exercise a power not conferred upon it by law ... And, if the question of ... ...
  • McDaniel v. Cochran
    • United States
    • Mississippi Supreme Court
    • October 24, 2014
    ...his petition timely and, by exercising jurisdiction, the Court determined that the petition was timely. McDaniel cites Drummond v. State, 184 Miss. 738, 185 So. 207 (1938), in support:It has been argued that inasmuch as the high court did not mention the subject of its jurisdiction, or the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT