Jones v. State

• Decision Date: 19 January 1914
• Citation: 163 S.W. 177
• Parties: JONES v. STATE.
• Court: Arkansas Supreme Court

Page 177

163 S.W. 177

JONES v. STATE.

Supreme Court of Arkansas.

January 19, 1914.

Appeal from Circuit Court, Conway County; Hugh Basham, Judge.

Ed Jones was convicted of petit larceny in the justice court, and from a judgment of conviction in the circuit court, he again appeals. Affirmed.

Appellant was convicted before a justice of the peace of petit larceny. He appealed to the circuit court, where he filed a motion to require the prosecutor to make bond for costs, under section 2476 of Kirby's Digest, which provides that: "In all prosecutions in cases less than felony, in courts of justices of the peace and in other inferior courts, the prosecutor, or some person for him, shall enter into bond," etc. Appellant did not move to require the bond in the justice court where the charge against him originated. The record recites that: "Upon a hearing of said motion [to require bond] the court doth overrule and refuse said motion, to which ruling the defendant at the time excepted, and, desiring to stand on his said motion, did not plead further herein. Wherefore it is ordered and adjudged that the judgment of conviction of the justice court and the imposition of a fine of $10, together with costs of this suit, be and the same is hereby affirmed." The appellant duly prosecutes this appeal.

W. P. Strait, of Morrilton, for appellant. Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

WOOD, J. (after stating the facts as above).

I. Under our statute and the decisions of this court, upon appeal from a justice court to the circuit court, the trial in the circuit court is de novo. Kirby's Dig. § 2580; Touhy v. Rector, 26 Ark. 315; Hall v. Doyle, 35 Ark. 445; Thomas v. State, 41 Ark. 408; Laur v. State, 94 Ark. 178, 126 S. W. 840; Batesville v. Ball, 100 Ark. 499, 140 S. W. 712, Ann. Cas. 1913C, 1317. But the law does not require the prosecutor to enter into bond in the circuit court, and the issue cannot be raised in the circuit court for the first time. The law only requires the bond to be made "in courts of justices of the peace and in other inferior courts." If the defendant fails to move for this bond in the inferior court, where the charge originated, he waives his right to require it.

A failure to give bond under the statute is a matter to be pleaded in abatement or in bar of the right to prosecute, and it should be made in limine in the court where the prosecution is initiated; and, under the statute, where the defendant fails to make a motion in the inferior court, he cannot insist upon it elsewhere. See Mann v. State, 37 Ark. 407; Laur v. State, supra.

II. Section 2580 of Kirby's Digest provides that upon appeal the case shall be tried anew as if no judgment had been rendered. The record in the case...