Ex Parte Smith

• Decision Date: 25 November 1901
• Citation: 79 Miss. 373,30 So. 710
• Court: Mississippi Supreme Court
• Parties: EX PARTE BUD SMITH

30 So. 710

79 Miss. 373

EX PARTE BUD SMITH

Supreme Court of Mississippi

November 25, 1901

October 1901

FROM the circuit court of Washington county. HON. FRANK E. LARKIN Judge.

The case was a habeas corpus proceeding instituted by Bud Smith which was tried in the circuit court and the writ there denied. Smith appealed to the supreme court. The opinion fully states the case.

Affirmed.

C. J. Jones, for the appellant.

The appellant makes but one point. He was charged with a misdemeanor, and, under the facts, could have been guilty only as charged. The justice of the peace ought to have tried him upon the charge preferred, and had no power in law to refuse to try him, or to bind him over to the circuit court. Think of the great injustice to appellant that was done. If he had been tried and convicted, he could only have been punished by fine and imprisoment, and, if no appeal were prosecuted, he could have begun the service of his sentence at once. As it is, being unable to give the bond required, appellant is confined in jail from the date of his commitment until the meeting of the circuit court, before trial, and is then, if convicted in that court, subject to as great a sentence as he would have been had he been promptly tried by the justice of the peace. Appellant was entitled to a speedy trial. This was denied. He has been imprisoned before trial, and is liable to suffer two penalties--two terms of imprisonment--for the same offense.

Monroe McClurg, attorney-general, contra.

The action of the magistrate was authorized by law. Code 1892, § 2424. In this case it was wise. Appellant cannot be discharged. Burke's case, 58 Miss. 50; Ex parte Grubbs, ante, 358.

OPINION

TERRAL, J.

Bud Smith, for the commission of an aggravated assault and battery, was, by a justice of the peace of Washington county, bound over to the circuit court in the sum of $ 500, and, failing to give said bond, he was given into the custody of the sheriff of said county. He brings this suit of habeas corpus, and asks that his case be remanded to the justice of the peace for trial, and, if that prayer be not granted, that his bail bond be reduced.

The perfect propriety of the action of the justice of the peace will be best shown by a relation of the facts. Bud Smith was prosecuted before Justice of the Peace Basket upon an affidavit charging that Smith, in said county, on the twenty-first day of September, 1901, "did commit...