Niblett v. State
| Decision Date | 26 April 1897 |
| Citation | 21 So. 799,75 Miss. 105 |
| Court | Mississippi Supreme Court |
| Parties | F. F. NIBLETT v. STATE OF MISSISSIPPI |
March 1897
FROM the circuit court of Tunica county HON. F. A. MONTGOMERY Judge.
The opinion states the case.
The judgment of the court below is reversed, and the cause reinstated on the docket for trial de novo.
F. A Montgomery, Jr., for appellant.
Section 86, code 1892, provides that anyone convicted may appeal from the judgment of a justice of the peace, and that the case shall, in the circuit court, be tried de novo. It also directs that "the case shall be tried anew and disposed of as other cases pending in said court" [the circuit court]. The case is therefore tried as if there had never been a previous trial, the statute making no distinction between one convicted on a plea of not guilty and one convicted on a plea of guilty. That his plea of guilty was in the nature of a confession does not affect the question, for he should at least be allowed to explain the confession.
Wiley N. Nash, attorney-general, for the state.
The judgment by the justice of the peace was by consent, and an appeal does not lie from a consent judgment. Willington v. Stratton, 11 Mass. 395; Inhabitants of Alfred v Inhabitants of Saco, 7 Ib., 380; Carroll v. Richardson, 9 Ib., 327.
This case commenced in the court of a justice of the peace, where appellant was sentenced to thirty days' imprisonment, and to pay ten dollars fine, for carrying a weapon concealed, from which judgment he appealed. In the circuit court, the counsel for the state moved to dismiss the appeal and for a writ of procedendo to the justice's court, because the record disclosed the fact that the defendant had pleaded guilty to the charge in the justice's court. The motion was sustained, and a writ of procedendo ordered, and defendant appealed here. The circuit court recites in its judgment that the action of the court was based on the recital, in the record of the justice's court, that defendant had pleaded guilty there.
This court has held, in James v. Woods , 65 Miss. 528, 5 So. 106, that a defendant may appeal to the circuit court from a consent judgment in a civil case announcing that § 2309, code of 1880, did not apply to a justice's court. Section 32, code of 1892, is like § 2309, code of 1880, and does not apply to a justice's court. Only consent judgments and decrees of the circuit and chancery...
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