Holifield v. City of Laurel

• Decision Date: 02 November 1909
• Citation: 96 Miss. 59,50 So. 488
• Court: Mississippi Supreme Court
• Parties: JESSE HOLIFIELD v. CITY OF LAUREL

50 So. 488

96 Miss. 59

JESSE HOLIFIELD v. CITY OF LAUREL

Supreme Court of Mississippi

November 2, 1909

October 1909

FROM the circuit court of, second district, Jones county, HON ROBERT L. BULLARD, Judge.

Holifield appellant, was tried and convicted in the municipal court of Laurel for the violation of an ordinance of the city forbidding the unlawful sale of intoxicating liquors. On the trial in the city court one Posey was a material witness for the prosecution. Defendant, Holifield, appealed from the conviction to the circuit court of the county and was there tried de novo. When the case came on for trial in the circuit court Posey was not present, but upon it being made known to the court that he had removed to the state of Alabama, the court, over defendant's objection, permitted the prosecution to prove by the police justice, who presided in the municipal court, what the absent witness had testified in the trial before him. Defendant was convicted in the circuit court and appealed to the supreme court.

Reversed and remanded.

R. E. Halsell, for appellant.

George Butler, assistant attorney-general, and W. S. Welch, for appellee.

[The briefs of counsel were withdrawn or lost from the record when it reached the reporter; hence no synopses of them is given in this report. ]

WHITFIELD, C. J. MAYES, J., concurring.

OPINION

WHITFIELD, C. J.

The testimony of the police justice of the city of Laurel, Mr Gavin, is manifestly incompetent, under the decisions of Owens v. State, 63 Miss. 450, and Dukes v. State, 80 Miss. 353, 31 So. 744. The whole subject was exhaustively considered in the case of Dukes v. State, supra, and we feel ourselves bound, by the former decisions of this court, to hold as we have announced therein. We said, in the Dukes case, at page 362 of 80 Miss., and page 745 of 31 South.: "It doubtless would be well for our legislature to enact that such testimony should be received in all the categories mentioned in section 1195 of Dr. Bishop's New Criminal Procedure. Volume 1, § 1195." In that section Mr. Bishop said: "Of necessity, if a witness has died, or has become insane, though but temporarily, or by the opposite party is kept out of the way, or is too ill or infirm to come to the court (for it cannot adjourn to his house), or if from any cause for which the party is not responsible, such as residence beyond the process of the court, or the like, the witness' personal presence cannot be had (a rule as to which the...