McCluney v. State
| Decision Date | 14 December 1931 |
| Docket Number | 29074 |
| Court | Mississippi Supreme Court |
| Parties | MCCLUNEY v. STATE |
1. CRIMINAL LAW.
Where record did not contain judgment of justice court, appeal bond, or transcript of proceedings in justice court, but such transcript was unnecessary for understanding of proceedings in circuit court, statute prevents reversal (Code 1930 section 3403).
2. CRIMINAL LAW.
Statute required presumption that proper appeal bond was executed by one appealing from justice court requiring his attendance at court until appeal was disposed of (Code 1930, section 3403).
3. INTOXICATING LIQUORS.
Peace bond of two thousand five hundred dollars required of one convicted of possessing liquor held excessive (Code 1930 sections 44, 1349).
4. INTOXICATING LIQUORS.
Peace bond, without limitation of time, required of one convicted possessing liquor, held erroneous (Code 1930, section 1349).
APPEAL from circuit court of Chickasaw county HON. T. E. PEGRAM, Judge.
C. S. McCluney was convicted of possessing intoxicating liquor, and he appeals. Reversed in part, and affirmed in part.
Reversed in part and affirmed in part.
Rush H. Knox, of Jackson, for appellant.
There is no judgment in this record of the justice of the peace. There is no appeal bond of the appellant from the justice court to the circuit court; neither is there a certificate of the justice of the peace, or a copy of the transcript as required by sections 64 and 71, Hemingway's Code (secs. 84-89, Code 1906).
Where the court below had no transcript of the record of the justice of the peace, no appeal bond from the justice court to circuit court, and no certificates of the justice of the peace, and the defendant being tried in his absence the court had no jurisdiction of the person. Certainly, this judgment was a nullity.
Cawthorn v. State, 100 Miss. 834, 57 So. 224; Ivy v. State, 141 Miss. 877, 106 So. 111; Clark v. State, 116 So. 878; Salers v. State, 142 Miss. 88, 107 So. 375; Dorsey v. State, 141 Miss. 600, 106 So. 827; Cook v. State, 144 Miss. 519, 110 So. 443; Galloway v. State, 144 Miss. 696, 110 So. 665; McLain v. State, 145 Miss. 210, 110 So. 441; Jeffries v. State, 146 Miss. 467, 111 So. 576.
There is no proof in the record as to the ability of the appellant to give the bond, but under the provisions of this judgment this could amount to life imprisonment in the county jail, inasmuch as the court provides "the said sheriff shall keep him in jail until the said bond is executed, even though he may serve out the thirty days and pay the said fine imposed herein."
This court said in the case of Jones v. State, 146 Miss. 819, 112 So. 170, that a bond for two thousand five hundred dollars in a case charging one for possessing whiskey was excessive.
E. R. Holmes, Jr., Assistant Attorney-General, for the State.
The Attorney-General submitted the cause without argument.
In the circuit court of the First district of Chickasaw county, the appellant was tried, in his absence, on an affidavit made before a justice of the peace of the county, charging him with unlawfully having in his possession intoxicating liquor, and was convicted and sentenced to pay a fine of five hundred dollars and to serve a term of thirty days in jail, and was also required by the order to execute a bond in the penal sum of two thousand five hundred dollars, conditioned to keep the peace and obey the laws thereafter, and was committed to jail until such bond was executed and approved by the sheriff; and from this conviction and sentence this appeal was prosecuted.
The judgment from which this appeal was prosecuted recites that the appellant was convicted in the court of J. R. Chenault, a justice of the peace of supervisor's district 1 of the First judicial district of Chickasaw county, and appealed to the circuit court and filed a bond for his appearance therein, but the record before us does not contain any judgment of the justice court, appeal bond, of certified transcript of any proceedings in the justice court.
The appellant contends that, in the absence of a certified transcript of the proceedings in the justice court showing a judgment and appeal bond, the circuit court was without jurisdiction of the cause, and that its judgment was therefore a nullity; and in support of this contention he relies on that long line of cases so holding which were decided before the enactment of section 3403, Code 1930 which amended the statute providing that a judgment in a criminal case shall not be reversed by the Supreme Court for certain specified defects in the transcript of the record, unless the record shows that the errors complained of were made grounds of special exception in the circuit court, by adding thereto the following provision: "And no judgment in any case originating in a justice court, or in a municipal court, and appealed to the circuit court, shall be reversed because it may appear in the Supreme Court transcript that the judgment or record of the said justice or municipal court was...
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Whittington v. State
...or municipal court is necessary to a fair understanding of the proceedings in the circuit court.' On December 14, 1931, McCluney v. State, 162 Miss. 333, 138 So. 356, 357, was decided. In that case, the appellant had been convicted in a justice of the peace court, and on appeal to the circu......
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Stewart v. State
... ... The state submits that ... there is no merit in this contention. This certificate, while ... possibly irregular, is sufficient, in our judgment, in view ... of the decision of this court in the case of Borders v ... State, 138 Miss. 788, 104 So. 145 ... McCluney ... v. State, 162 Miss. 333, 138 So. 356; Section 3403, Code of ... It is ... also said that the circuit court had no jurisdiction because ... there was no valid judgment, that the judgment was void ... because it did not recite the crime of which appellant was ... convicted. By ... ...
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Warner v. State, 39313
...the trial after the announcement by the district attorney, the appellant can not now avail himself of such objection. McCluney v. State, 162 Miss. 333, 138 So. 356; Whittington v. State, Miss., 67 So.2d It is further contended by the appellant that the transcript of proceedings, when finall......