Newton v. State, 37991

• Decision Date: 14 May 1951
• Docket Number: No. 37991,37991
• Citation: 52 So.2d 488,211 Miss. 644
• Parties: NEWTON v. STATE.
• Court: Mississippi Supreme Court

Page 488

52 So.2d 488

211 Miss. 644

NEWTON v. STATE.

No. 37991.

Supreme Court of Mississippi, Division B.

May 14, 1951.

T. J. Wills, Hattiesburg, J. Ed. Franklin, Jackson, for appellant.

J. P. Coleman, Atty. Gen., by Geo. H. Ethridge, Asst. Atty. Gen., for appellee.

ARRINGTON, Commissioner.

The appellant was tried and convicted in the County Court of Forrest County, Mississippi, on an affidavit charging him with the unlawful sale of intoxicating liquor, to-wit: whiskey, and was sentenced by the court to pay a fine of $500 and serve ninety days in jail, from which judgment he appealed to the Circuit Court of Forrest County, where the judgment was affirmed.

The appellant argues three assignments of error, one of these being that the court erred in denying him a trial by jury. The affidavit in this case was filed in the County Court of Forrest County on October 19, 1948. The appellant was arrested, according to the warrant, on October 20, 1948, and placed in jail. The record shows that the appellant was tried by the court without a jury on May 7, 1949. The record is silent as to the arraignment of the appellant and when the right to trial by jury was waived, if demand was made for jury trial at time of arraignment.

As to what transpired at the May term of the county court when the appellant was tried, the record shows: 'Motion by T. J. Wills: In the case of the State versus F. T. Newton, comes F. T. Newton and requests a jury trial. Mr. Finch: Of course, if the Court please, I would like to make this observation that at the time this case was ready to try in this court--that the Defendant, F. T. Newton waived a jury--the Court is familiar with that. Defendant waived a trial by jury and agreed to try it before this Court in the absence of a jury. Mr. Wills: But let the record show that that was in 1948--this is May 6, 1949--much water has gone over the dams since that time, and the Defendant now exercises his constitutional right to demand that he be tried before a jury. By the Court: Motion is overruled. Months ago this case came up for trial and we were all ready to try it and the witnesses were in and the Defendant then and there expressly waived a jury, so that he would not be faced with a jury trial at that time for reasons best known to himself and his attorney. This case has come up a number of times--all witnesses here--some of them have come from great distances and it would be expensive to the State to further delay this case--it has already been delayed many months--for that reason the motion is overruled.'

Section 1615, Code of Mississippi 1942, County Courts, provides in part as follows: '* * * Either party to a suit or proceeding in the county court may demand a jury but in civil cases the demand shall be made by the plaintiff, if made by him, with the filing of the declaration, and if made by the defendant, on the filing of his plea; in criminal cases if a jury is desired by either party the demand shall be made at the time the defendant is arraigned. But the court may in its discretion allow a jury trial for any cause arising after either of such events. * * *'

In the case of City of Jackson v. Clark, 152 Miss. 731, 118 So. 350, 351, the Court held that the failure of the City of Jackson, defendant to request a jury trial upon filing its plea to the declaration waived its right to trial by jury after amendment was made to the declaration. It will be observed that this case was tried and disposed of at the same term of the county court. The court in this case, with...