Monroe v. State

• Citation: 103 Miss. 759,60 So. 773
• Court: United States State Supreme Court of Mississippi
• Decision Date: 17 February 1913
• Parties: DAVID MONROE v. STATE

60 So. 773

103 Miss. 759

DAVID MONROE v. STATE

Supreme Court of Mississippi

February 17, 1913

October 1912

APPEAL from the circuit court of Marshall county, HON. H. K. MAHON Judge.

David Monroe was convicted of unlawful retailing and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

W. A Belk, for appellant.

In Rodgers v. City of Hattiesburg, 99 Miss. 643, this court has said: "The question of jurisdiction can be raised at any time. It may be raised for the first time in this court. The court, of its own motion, will dismiss an appeal where it has no jurisdiction."

Assignment of error No. 1--"Justice of the peace shall have jurisdiction, concurrent with the circuit court of the county over all crimes occurring in their several districts whereof the punishment prescribed does not extend beyond a fine and imprisonment in the county jail." Mississippi Code 1906 par. 2749.

It will hardly be questioned that upon appeal the circuit court has no greater jurisdiction than the magistrate's court where the case originated by affidavit, and that the jurisdiction, upon the appeal, of the circuit court depends upon the jurisdiction in the magistrate's court. Even in civil cases it has been held that "If the justice's court has no jurisdiction, the circuit court has none." 59 Miss. 15; 79 Miss. 53.

In order, therefore, to acquire jurisdiction, on appeal, it became necessary on the trial in the circuit court to show that Mosby, the justice of the peace, had jurisdiction to try this case. If he had none, then the circuit court had none on appeal. The district attorney, Mr. Knox, fully recognized this fact and made two efforts in vain to make this proof. He even recalled Ford, the sheriff, to make this proof but he only proved the venue of the county and state. This court has also recognized this to be the law. See State v. Martin, 59 So. 7. In that case the state closed without having proven this venue of the justice of the peace and the trial court directed a jury and verdict of not guilty and overruled the motion of the state to reopen the case and prove that the offense had occurred in district No. 3. Upon appeal by the state this honorable court said, "It was manifest error on the part of the court below not to allow the state to reopen the case and prove the venue." See Martin v. State, 59 So. 7.

Nowhere in the case now at bar was the proof made that the alleged offense was committed in district No. 1. The affidavit lays the venue specifically in district No. 1. Wherefore the circuit court was without jurisdiction to try the case.

Frank Johnston, assistant attorney-general, for the state.

Section 4936 of the Code of 1906 governs the case in respect to the requirement that all objections on the subject of venue should be made in the court below. This is a re-enactment of section 4370 of the Code of 1892. And the same statute appears also in section 1433 of the Code of 1880.

This court expressly held in Burnett v. State, 72 Miss. 994, that a failure to prove the venue can be assigned for error on appeal only when made a ground of special objection in the trial court. Precisely the same rule was announced in Lea v. State, 64 Miss. 201 and in Whitten v. State, 61 Miss. 717.

The reasons for this statutory rule are twofold: 1st. The failure to prove the venue is presumably a curable error if the objection is seasonably made in the trial court in the progress of the trial. The objection can be made in several ways. For illustration, it could be made on motion to exclude the evidence for the state, or it could be made in the instructions. If made seasonably the objection could be obviated by the state's attorney. 2d. Point not made and questions not presented in the trial court ought not to be permitted to be raised for the first time on appeal. No point which could be, cured in the trial court, if a seasonable objection were interposed, should be considered on an appeal for the first time in this court; for this court is a court of review, and not a court of original jurisdiction. The function of an appeal to this court is to review the action of the trial court and upon questions presented to and decided by the lower court.

I do not suggest that such a rule of appellate procedure and practice could extend to and be applied to a case coming to this court on appeal where the trial court had no jurisdiction. But it does apply to a case on a question of venue, as has been settled and adjudged by this honorable court in the cases cited on this brief.

It would be a bad course of procedure, and often a cause of a failure of justice to permit a defendant to withhold an objection of a technical character on a point which could be readily remedied and cured if made in proper time on the trial, and then...