Hall v. State

• Decision Date: 18 November 1907
• Docket Number: 12754
• Court: Mississippi Supreme Court
• Parties: RAIFORD HALL v. STATE OF MISSISSIPPI

44 So. 826

91 Miss. 216

RAIFORD HALL v. STATE OF MISSISSIPPI

No. 12754

Supreme Court of Mississippi

November 18, 1907

FROM the circuit court of Union county, HON. JAMES B. BOOTHE Judge.

Hall appellant, was tried and convicted before a justice of the peace for the unlawful sale of intoxicants. He appealed to the circuit court, and from a conviction and sentence there to the supreme court.

The transcript of proceedings in the justice's court showed no affidavit nor other charge against appellant.

Appellant in the supreme court, assigned for error the refusal of the circuit court to set aside the verdict because no crime was charged against him either by affidavit or indictment.

Judgment reversed and cause dismissed.

Mr. C. Lee Crum, for appellant.

The judgment of the lower court should be reversed, and the cause dismissed, because, so far as the record here discloses, neither the justice of the peace, before whom the case began, nor the circuit court on appeal, had any jurisdiction to try appellant. No affidavit is shown in the record on which a prosecution can be based. Certainly, the crime was not committed in the presence of the court that tried. It must be held that the entire prosecution was begun, and rested alone, on the deposition of a witness of the state, taken ex parte before the justice of the peace. It is true, that the justice of the peace, in his testimony in this case before the circuit court, said that the deposition of this witness for the state, "was the first we could get in court, and as soon as he testified and retired, the deputy sheriff left with the affidavit; I wrote the affidavit." Such testimony was, however, promptly objected to as parol testimony, attempting to show what the record on appeal alone should show. The justice of the peace evidently referred in his testimony to the writ or warrant for the arrest of appellant, when he used the word, "affidavit"; for he would naturally have placed the warrant for arrest, but not the affidavit, in the hands of the deputy sheriff. Moreover, the justice of the peace testified that he issued further writs for the arrest of appellant.

The copy of the record of proceedings before the justice of the peace, filed on appeal in the circuit court, is as follows:

"Copy of Record of the Proceedings before me, W. J. ROBBINS, a Justice of the Peace of Union County, in the case therein set forth: Union County v. Rafe Hall. Retailing. Warrant issued 14th day of July, 1906. Another one issued Oct. 15, 1906, to Chickasaw County, returnable Nov. 10, 1906. This day this cause came on to be heard, and after hearing the testimony, it is the judgment of the court that the defendant, Rafe Hall, is guilty as charged, that he be fined fifteen dollars and all costs, and thirty days in jail, and stand committed to jail until final costs are paid." This record is properly certified to by the justice of the peace.

There is not one word in the above transcript showing the existence of any evidence charging the offense of retailing. The absence of an affidavit charging the offense in this case, was not discovered by the attorney for the defendant until after verdict; and was promptly alleged as a reason for new trial, but the court overruled the appellant's motion to such effect. There can certainly be no doubt that the failure to begin this prosecution upon an affidavit of information is fatal error, which cannot be cured at any stage of the proceedings on appeal.

It is true, that § 27 of the state constitution, provides that the Legislature may, in cases of misdemeanor, dispense with inquest by the grand jury, and allow matters to be regulated by proper proceedings before the justices of the peace; and Code 1906, § 2749, gives justices of the peace jurisdiction of misdemeanors. But the jurisdiction of justices of the peace of a misdemeanor is only acquired by filing an affidavit of the commission of the crime. Code 1906, § 2750.

In the case of Bigham v. State, 59 Miss. 529, this court held, in a case analogous to this, that an...