Jones v. State

• Decision Date: 11 April 1927
• Docket Number: 26422
• Citation: 146 Miss. 819,112 So. 170
• Court: Mississippi Supreme Court
• Parties: JONES v. STATE. [*]

112 So. 170

146 Miss. 819

JONES v. STATE. ^[*]

No. 26422

Supreme Court of Mississippi

April 11, 1927

(In Banc.)

1. BREACH OF THE PEACE. Habeas corpus. Court may require one convicted of offense less than felony to give only reasonable peace bond; if court requires excessive bail to keep peace one convicted of offense less than felony may by habeas corpus have bail reduced; bond of two thousand five hundred dollars to keep peace, required of one sentenced to six months' imprisonment for possession, of intoxicating liquor, held excessive (Hemingway's Code, sections 38, 41, 1323; Constitution 1890, section 29).

Under section 1323, Hemingway's Cods (section 1561, Code of 1906), providing that "every court before which any person shall be convicted of an offense less than a 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 peace and to be of good behavior," etc., the court may require only a reasonable bond having relation to the character of the offense, the amount of punishment prescribed by law, and the ability of the convict to give bail; and, if excessive bail be required the convict may, by habeas corpus, have the amount of bail reduced to a reasonable sum.

2. BREACH OF THE PEACE. Habeas corpus. Bond to keep peace, required of one convicted of offense less than felony, relates only to future good conduct; fine and imprisonment for misdemeanor are separable from requirement to give peace bond, as regards right to habeas corpus to reduce excessive bond (Hemingway's Code, section 1323).

Under said section, while the bond may be required in the same proceeding and embraced in the same judgment against the convicted person, it has relation to future conduct and good behavior, and not to punishment for the past misdemeanor. The fine and imprisonment, part of the judgment, are separable from the requirement to give bond for future behavior.

HOLDEN and MCGOWEN, JJ., dissenting.

APPEAL from circuit court of Marion county HON. J. Q. LANGSTON, Judge.

Petition by Sidney Jones against the state for habeas corpus. From a judgment of dismissal, petitioner appeals. Reversed and judgment rendered.

Judgment reversed.

B. J. Goss, for appellant.

Section 2011, Hemingway's Code, states, "The writ habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty." This appellant being unable to execute the unreasonable bond fixed by the circuit judge, under section 1561, Hemingway's Code, he was then illegally and unlawfully confined; and if this be true, the chancellor certainly had the right to hear the case on habeas corpus as to a reduction of the bond, as is provided by section 2014, Hemingway's Code.

Our contention is that appellant could not appeal from the judgment of the circuit court in this case for the reason that section 13, Hemingway's Code, provides, "An appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant entered a plea of guilty." The appellant herein entered a plea of guilty on arraignment in the circuit court.

Again, appellant was sentenced to serve six months in jail, which he did, and during the time of his incarceration it was useless for him to attempt to execute the said peace bond required by the circuit judge. After the said incarceration of six months, he could not appeal for the reason that section 582, Hemingway's Code, Supplement of 1921, provides that notice of an appeal shall be given within ten days after the adjournment of the court; therefore, in either case, he was barred from an appeal to the supreme court.

The only remedy is by habeas corpus to have the peace bond reduced.

J. A. Lauderdale, Assistant Attorney-General, for the state.

See section 1323, Hemingway's Code. Jackson v. Belew, 110 Miss. 243, 70 So. 346, is controlling. The allegations in the petition for a writ of habeas corpus show conclusively that the defendant was "suffering imprisonment" under a lawful judgment--see section 2012, Hemingway's Code--and that for this reason the demurrer to the petition was properly sustained by the circuit judge.

It appears from his argument that appellant was cut off from an appeal, but he can do indirectly what the law prohibits him from doing directly. Section 2011, Hemingway's Code, which provides "that the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty," does not apply to the facts in this case because the allegations in the petition show that he was legally confined. Section 156, Constitution of Mississippi, and also section 159.

The chancery court has no jurisdiction to try the habeas corpus. The judgment of the circuit court is correct and should be by this court affirmed.

ETHRIDGE, J. HOLDEN, J., MCGOWEN, J., dissenting.

OPINION

ETHRIDGE, J.

The appellant, Sidney Jones, filed a petition for habeas corpus before the circuit judge of the district in which Marion county is situated, alleging that he was a resident citizen of Marion county, Miss., and that he was indicted by the grand jury of Marion county, in June, 1926, on a charge of unlawfully possessing intoxicating liquor, and, being arraigned upon said charge, entered a plea of guilty, and was by the court sentenced to pay a fine of five hundred dollars and to serve six months in the county jail, and in addition to said fine and imprisonment was required by the court to enter into a good and sufficient bond with sureties in the sum of two thousand five hundred dollars for his future good behavior for a period of two years from date of sentence, a copy of which judgment was made an exhibit to the petition.

It was further alleged, that in November, 1926, the petitioner filed a petition for a writ of habeas corpus before the chancellor of said county, which petition came on for hearing before the chancellor on the 27th day of November, 1926, in which petition it was alleged that the petitioner was unable to execute a bond in the sum of two thousand five hundred dollars, that he was a poor boy, with an aged father and mother dependent upon him, that his associates and the people with whom he had been thrown were unable to assist him in executing said bond, and, as his father and mother owned no property with which they could assist him in making said bond, that petitioner was without means and could not make a bond for said sum, which amount is prohibitory and excessive, and that the petitioner was held a prisoner without authority of law and in conflict with the Constitution and the laws of the state of Mississippi, whereupon the chancellor in said hearing reduced the said bond from two thousand five hundred dollars to the sum of five hundred dollars, a copy of the chancellor's decree being made an exhibit to the petition in the present case.

It is further shown in the petition that the bond allowed by the chancellor was made, and the sheriff approved the sureties thereon and discharged the petitioner, but subsequently rearrested him and recommitted him to prison in default of the bond of two thousand five hundred dollars; the petitioner having paid the fine and served out the sentence imposed by the circuit court. The petitioner further alleged that the bond allowed by the chancellor and approved by the sheriff was sufficient, and that therefore the sheriff had no legal authority to hold him in prison or to require him to give other bond than that fixed by the chancellor, and prayed for an order discharging him from custody.

The judgment of conviction, made an exhibit to the petition, recited:

"Comes the district attorney, who prosecutes the plea of the state, comes also the defendant, Sidney Jones, in his own proper person, he being arraigned on a bill of indictment, charging him with having intoxicating liquors in his possession, and he being required to plead thereto, pleads guilty; whereupon the defendant, Sidney Jones, is placed at the bar to have and receive the sentence of the court, and, having nothing to say in bar of the sentence of the court, it is now the judgment of the court, and is so ordered, that the said defendant, Sidney Jones, be and he is hereby fined in the sum of two hundred dollars and all costs, and is to serve a term of six months in the county jail. It is further ordered by the court that the said Sidney Jones, when he shall have served the said six months in prison, shall give bond payable to the state of Mississippi in the sum of two thousand five hundred dollars, with good security; the condition of said bond is such, that, if the said Sidney Jones does not violate any of the laws of the state of Mississippi, within a period of two years, then this bond is void, otherwise to remain in full force and effect. It is further ordered by the court that the said defendant, Sidney Jones, remain in jail until said bond of two thousand five hundred dollars be executed."

The judgment of the chancellor on the habeas corpus trial recited:

"This cause coming on to be heard in vacation upon petition, writ of habeas corpus, and oral testimony, praying that petitioner be released from the custody of W. W. Branton sheriff of Marion county, Miss., under an order of the circuit court requiring that the petitioner herein make and execute a bond in the sum of two thousand five hundred dollars for the good behavior and strict conformity of the laws of the state of Mississippi, for a period of two years from the day of June, 1926, asking that said bond be reduced to a sum within the bounds of which the petitioner may give and execute, and after the court having heard and considered the same is of the opinion...