Morris v. Tupelo.
| Decision Date | 01 January 1920 |
| Docket Number | 22448,22449,s 22446 |
| Citation | 93 So. 453,129 Miss. 887 |
| Court | Mississippi Supreme Court |
| Parties | Morris v. City Of Tupelo. |
MUNICIPAL CORPORATIONS. Error to dismiss appeal from conviction in city court, triable de novo, where counsel appearing for defendant unavoidably delayed.
Where a person is convicted of a misdemeanor in a police court and appeals to the circuit court, where the law provides for a trial de novo, it is error to dismiss the appeal and order a procedendo and refuse to reinstate on timely motion, where it is shown that the absence was caused by accident, and when the attorney for the defendant entered an appearance and offered to go to trial in the absence of the defendant, where there is nothing to show that the personal appearance of the defendant is necessary for the proper trial of the cause.
Walter Morris was convicted in the city court of Tupelo for the unlawful sale of intoxicating liquors, and appealed to the circuit court, where his appeal was dismissed. From an order overruling his motion to set aside the dismissal, defendant appeals. Reversed and remanded.
George T. Mitchell, for appellant.
I ask in all fairness what harm could have come to the city of Tupelo by granting this defendant a trial upon the merits at just as early a time as the case would have been tried on its merits had defendant been present in the courtroom when his case was first called? It is common knowledge that the court concludes the sounding of the docket before taking up the trial of any case, and as the sounding of the docket had not been concluded when defendant appeared in the courtroom, it cannot be successfully contended that his absence delayed the court in the least.
In the case of Durden v. State, 59 So 844, relied upon by counsel for the city in the court below and which I suppose will be relied upon here, when the defendant in that case was called in the circuit court, he made no answer either in person or by attorney. In the instant case, appellant appeared by attorney and announced ready for trial. In the Durden case, defendant simply filed an affidavit stating that he was ignorant of the law relative to his attendance upon court. In the instant case, we show conclusively every effort upon the part of appellant to be present when his case was called. In the Durden case this court says:
In the case of Walters v. State, 90 So. 76, advance sheets of January 14, 1922, Walters did not appear in court when his case was called, but he was represented by counsel who filed an application for a continuance or a postponement of the case until a later day. The court below overruled the application for a postponement and tried the defendant in his absence. He was convicted and thereupon Walters filed a motion for a new trial on the ground that it was impossible for him to appear in court the day his case was tried. Testimony was taken on the hearing of this motion, but the proper notice was not given to the stenographer to transcribe and file his notes and therefore the stenographer's notes were not contained in the record. This court in passing upon the proposition simply said that in the absence of the stenographer's notes, that is, in the absence of any testimony in the record tending to substantiate the motion, it must be presumed that the facts justified the lower court in its action. In the instant case, we have a full and complete copy of all the evidence taken on the hearing of the motion to reinstate and there can be no question but that the facts contended for by appellant are absolutely true. It will also be noticed that in the Walters case, where he was represented by counsel, the appeal in that case was not arbitrarily dismissed, but the court tried him in his absence, which it had a perfect right to do so far as the record in that case is concerned.
When we stop and realize that it should be and is the purpose of the law to grant to every man charged with crime a fair and impartial hearing upon the merits of his case, and that it is the duty of the court to exercise his discretion in a manner that is calculated to protect the rights of both the state and the defendant, I feel sure that this court, after a careful perusal of the record in this case, will necessarily be driven to the conclusion that the court below unwittingly acted arbitrarily in the matter and that he abused his discretion in denying the motion to reinstate this case. If this defendant is guilty, there will be no trouble in securing his conviction before a jury and, under the facts of this record, he is certainly entitled to have his fate decided by a jury.
I therefore respectfully submit that the case should be reversed and the lower court ordered to reinstate these cases on the docket. Mitchell & Clayton, for appellee.
As we understand the law, appellant was required to stay in the courtroom until his case was called. This is true whether the case is called on the first day of court or any other day of the term. This is true although he might be inconvenienced by having to remain in the place where court is held from day to day, and not be allowed to go to his home at night. The court is not concerned with this.
In this case appellant attended court on Monday the first day of court and under the law he was required to be present in court each day. He left for home at his own risk. This has been the rule announced by our court for so long a time that it seems unnecessary to cite authorities. As far back as 6 Southern Reports in the case of Bush v. State, 6 So. 647, this court held that it was not error to dismiss appeal on failure of the defendant to appear when called. It was held in that case that proper procedure was to dismiss the case with procedendo to the lower court.
In the case of Henderson v. State, 8 So. 649, the court followed its former holding and affirmed the judgment of the circuit court in dismissing an appeal from justice court, on failure of the defendant to answer when his case was called. The same rule is laid down in the cases of Thomas v. State, 68 Miss. 91, and Henning v. Greenville, 69 Miss. 214, and Durden v. State, 59 So. 844.
In the light of these authorities it seems useless to argue the facts in this case, but it is well for the court to understand that according to the appellant's own testimony his delay was not sufficient to excuse his failure to appear at court. We submit that appellant cannot complain at the action of the court in dismissing his appeal. Of course, he cannot appeal to this court from the action of the trial court in taking forfeiture on the bond until that matter is made final. The judgment in that respect is not final. This court can only review the action of the trial court in dismissing appeal with procedendo.
We fail to see how counsel for appellant can get any consolation out of the case of Watts v. State, 90 So. 76, recently decided by this court. In that case the lower court simply exercised the discretion vested in it and permitted a trial in the absence of accused. That was purely discretionary and the court could have dismissed the appeal with just as much safety. The whole matter is left to the sound discretion of the trial court. In the Walters case the defendant...
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