Milling v. State
| Decision Date | 04 March 1940 |
| Docket Number | 33992 |
| Citation | 188 Miss. 592,194 So. 291 |
| Court | Mississippi Supreme Court |
| Parties | MILLING v. STATE |
Suggestion Of Error Overruled April 29, 1940.
APPEAL from the circuit court of Simpson county HON. EDGAR M. LANE Judge.
Fred Earl Milling was convicted of unlawfully possessing intoxicating liquors, and he appeals. Affirmed.
Affirmed.
D. A McLeod, of Mount Olive, and R. L. Calhoun, of Collins, for appellant.
The court below erred in refusing to grant appellant a new trial on the ground that the verdict of the jury was against the overwhelming weight of the testimony.
Appellant contends that the court below erred in taking jurisdiction to try this cause while the same cause was pending in the Justice of the Peace Court of District No. 2 of Simpson County, Mississippi, a court of concurrent jurisdiction with the circuit court of said county, to try said cause; said cause being pending in said justice court at the time the indictment was returned against the defendant below and at the time of his trial; and the court below had no jurisdiction to try same at that time.
Appellant contends that the justice of the peace court, after it had once taken jurisdiction of this cause, which was a misdemeanor, had the exclusive jurisdiction to dispose of same, and that said cause could not be dismissed by said justice of the peace court without knowledge or consent of appellant.
Coleman v. State (Miss.), 35 So. 937; State v. Hughes (Miss.), 51 So. 464; State v. Milano (La.), 71 So. 131; Atkinson et al. v. State (Miss.), 96 So. 310.
W. D. Conn, Jr., Assistant Attorney General, for the state.
The trial judge heard evidence on the motion to quash and adjudged that at the time the grand jury returned the indictment there was no prosecution pending against appellant on this charge in the justice court and that, therefore, the circuit court had jurisdiction to try appellant for this offense.
Rodgers v. State, 101 Miss. 847, 58 So. 536; Haney v. State, 146 Miss. 808, 112 So. 19.
This case presents, as we think, and out and out conflict as between the witnesses for the state and the defendant.
Appellant testified that he let a Frenchman, Hodie, have his car on the night in question, but it clearly appears that such person, Hodie, was very much smaller than appellant and had a very dark complexion, whereas appellant was possessed of a light complexion. The contrast was such as to show that the officers, who had known appellant for years, could not have been mistaken in their identification of appellant.
The positive and unequivocal testimony of these state witnesses in identifying appellant was sufficient, as we think, to sustain his conviction, and the court, therefore, overruled this motion for a new trial.
Coleman v. State, 155 Miss. 482, 124 So. 652; Bryant v. State (Miss.), 157 So. 346; Roberds v. State (Miss.), 187 So. 755.
It might be further added that since this was a straight out case of a jury's verdict being returned on conflicting evidence, the court would not be authorized to set aside the verdict returned in this case.
It appears that an affidavit was made on the 24th day of October, 1938, before A. A. Runnels, a justice of the peace in Simpson County, charging the appellant with the unlawful possession of intoxicating liquors. Thereupon a warrant for his arrest was issued and served, and the appellant was placed under bond for his appearance to answer the charge made against him in the said affidavit. The case was continued for one reason or another at two or three terms of the justice of the peace court, and while the same was still pending there was a special term of the circuit court convened and held beginning on the first Monday of December 1938, when an indictment as returned charging the appellant with the same offense with which he was charged in the affidavit. The justice of the peace, on a day other than a regular term of his court, undertook to dismiss the charge pending therein. Thereafter upon motion of the appellant, the circuit court quashed the indictment on the ground that the case had not been legally dismissed in the justice of the peace court, and that the jurisdiction acquired first of the case still prevailed. At...
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