Mcgowan v. State

• Decision Date: 07 February 1938
• Docket Number: 32953
• Citation: 181 Miss. 42,178 So. 594
• Court: Mississippi Supreme Court
• Parties: MCGOWAN v. STATE

178 So. 594

181 Miss. 42

MCGOWAN v. STATE

No. 32953

Supreme Court of Mississippi

February 7, 1938

Division B

1. CRIMINAL LAW.

Where defendant, convicted of selling liquor, appealed from the justice's court, and, having been advised by his attorney that he need not remain continually in the courtroom especially during argument on his demurrer, was absent when the case was called, the circuit court improperly dismissed the appeal with writ of procedendo, and refused to set aside the order when defendant appeared personally later in the day.

2. CRIMINAL LAW.

A misdemeanor case appealed to the circuit court is triable de novo, and defendant has the same right to a trial in his absence, by an appearance and defense through his attorney as he would have in a misdemeanor case originating in the circuit court by indictment.

HON HARVEY MCGEHEE, Judge.

APPEAL from the circuit court of Jefferson Davis county HON. HARVEY McGEHEE, Judge.

Jack McGowan was convicted in a justice's court of the sale of intoxicating liquor, and his appeal having been dismissed by the circuit court, he appeals. Reversed and remanded.

Reversed and remanded.

G. L. Martin, of Prentiss, for appellant.

The court will note that appellant's attorneys, when the case was about to be dismissed, announced ready for trial; that they had a demurrer on which they asked for a hearing and that they were willing to go to trial in the absence of the defendant. The court took the position that it had no authority to hear anything in the case in the absence of the defendant. We think the court was in error.

Morris v. City of Tupelo, 129 Miss. 887, 93 So. 453.

Section 1276, Code of 1930, provides that "in criminal cases the presence of the prisoner may be waived and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto." The defendant was consenting through his attorneys and where the defendant waives a matter, it cannot be said that the court would abuse any power of discretion in acquiescing in the waiver.

Ford v. State, 155 So. 220; Cannon v. Stake, 134 Miss. 805, 100 So. 8.

It is the policy of our court to give a defendant a trial on the merits. We most respectfully submit that the temporary absence of accused in no way delayed the court in the trial of cases. Section 24 of the Constitution seeks to give every man his day in court and we submit that in the trial of cases involving negroes, who know but little of court procedure, some little indulgence should be granted, if needed, and we submit none was needed here, for this negro appeared in plenty time to go right on with his trial and the demurrer and motion to quash could have been heard meanwhile.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

The facts of this case show that when the case was called the defendant was absent, but his attorney was there present insisting on his demurrer to the affidavit and insisting on the trial in the absence of the defendant.

In Morris v. City of Tupelo, 129 Miss. 887, 93 So. 453 this court held the trial court in error for refusing to set aside an order entered under substantially the same circumstances as are present here. So that, if this decision has not been overruled or modified, it appears to the writer that it should govern the disposition of this appeal....