Perry v. State

• Decision Date: 03 June 1929
• Docket Number: 27971
• Citation: 122 So. 744,154 Miss. 459
• Court: Mississippi Supreme Court
• Parties: PERRY v. STATE

122 So. 744

154 Miss. 459

PERRY v. STATE

No. 27971

Supreme Court of Mississippi

June 3, 1929

(Division B.)

1 COURTS. Extended term of court is not special term, but becomes simply part of regular term (Hemingway's Code 1927, section 466).

Under Hemingway's Code 1927, section 466 (Laws 1926, chapter 140), an extended term of court is not a special term, but it becomes simply a part of regular term fixed by law.

2. COURTS. Where circuit judge is unable to attend term of court on opening day or subsequent day, he may have order entered on minutes recessing court to future day during term (Hemingway's Code 1927, sections 744-746).

Under Hemingway's Code 1927, sections 744-746 (Code 1906 sections 988-990), if circuit judge is unable to attend a term of court either on its opening day or on any subsequent day during term fixed by law, he may have an order entered on minutes recessing court to some future day.

3 COURTS. Judge, during progress of business of court, may enter order on minutes recessing court to future day during term (Hemingway's Code 1927, sections 744-746).

Under Hemingway's Code 1927, sections 744-746 (Code 1906 sections 988-990), circuit judge, during progress of business of court, may, if public interest so requires, enter an order on minutes recessing court to some future day during regular term.

4. COURTS. If, during regular term, judge finds business of court requires it, he may extend term for definite period (Hemingway's Code 1927, section 744).

Under Hemingway's Code 1927, section 744 (Code 1906, section 988), if, during regular term, circuit judge finds that business of court requires it, he may, by an order entered on minutes, extend regular term for definite period in order to dispose of business of court.

5. COURTS. To justify extension of term of court beyond time fixed,

court must be then in session (Hemingway's Code 1927, section 744).

Under Hemingway's Code 1927, section 744 (Code 1906, section 988), in order to justify extension of term of court beyond time fixed by law, court must be then in session.

6. COURTS. Where circuit judge ordered recesses during regular term, followed by order, while court was in session, extendingterm for week, defendant's conviction during such week was legal (Hemingway's Code 1927, sections 744-746). Under Hemingway's Code 1927, sections 744-746 (Code 1906, sections 988-990), where circuit judge ordered recesses of court during regular term, followed by an order of court while in session, transacting business of court, extending term for week succeeding regular term on account of necessity of business of court, trial and conviction of defendant for possessing still during week of extended term was legal.

Division B

APPEAL from circuit court of Wayne County.

HON. J. D. FATHEREE, Judge.

Charles Perry was convicted of possessing a still for the manufacture of intoxicating liquor, and he appeals. Affirmed.

Affirmed.

W. M. Hutto, of Waynesboro, for appellant.

The term of court in which the appellant was tried and convicted was an illegal term of court. The term of court as held was not duly and legally constituted for the reason that the circuit judge had no right under the law to adjourn an adjourned term.

Sec. 466, Hemingway's 1927 Code; Williams v. Simon, 99 So. 433.

Rufus Creekmore, Assistant Attorney-General for the state.

The action of the court in taking the recess was legal.

Sec. 746 of Hemingway's Code of 1927; Palmer v. State, 73 Miss. 780, 20 So. 156; Section 745 of Hemingway's Code of 1927.

The action of the court in continuing the term of court for one week longer was in strict conformity with statute, Section 744 of Hemingway's Code of 1927.

Beard v. McLain, 136 Miss. 316, 78 So. 184; First National Bank v. Bloch, 82 Miss. 197, 33 So. 849; Steverson v. McLeod, 120 Miss. 65, 81 So. 888.

OPINION

ANDERSON, J.

Appellant was indicted and convicted in the circuit court of Wayne county of the crime of unlawfully possessing a still for the manufacture of intoxicating liquor, and sentenced to imprisonment in the state penitentiary for a term of two and one-half years. From that judgment appellant prosecutes this appeal.

Appellant contends that the term of court at which he was convicted was a term unauthorized by law, and for that reason his indictment, conviction, and sentence were void. To sustain that position appellant relies on the following facts. Appellant was tried and convicted on the 29th day of January, 1929. The terms of circuit court to be held in Wayne county are provided for by chapter 140, of the Laws of 1926 (section 466, Hemingway's Code of 1927). The statute provides for two terms of circuit court in that county, of eighteen days each, one beginning on the first Monday of January, and the other on the first Monday of July. The first Monday of January, 1929, was the seventh day of the month. On that day the judge of the circuit court for the district in which Wayne county is situated appeared at the courthouse of the county, and opened the court for the term, according to law. There was prevailing in the county at the time an epidemic of influenza, and for that reason the judge deemed it inimical to the public health to hold the circuit court during that week. He thereupon had an order spread on the minutes of the court reciting those facts, and adjourning the court until Monday the 14th day of January, the second Monday of the term fixed by law. The order directed the sheriff of the county to make the order known to the jurors, litigants, their attorneys, and witnesses. Accordingly, on the 14th of January, the court was regularly opened; all officers being present except the circuit judge. The influenza epidemic in the county had not abated. The sheriff had in his hands a written order from the circuit judge, directing that the court be opened and adjourned until Monday, January 21st, the third Monday of the regular term fixed by law, and that the sheriff make announcement thereof to all interested persons. That order was entered by the clerk upon the minutes of the court of that day. On January 21st, the third Monday of the regular term fixed by law, the circuit judge appeared at the courthouse of the county, and court was regularly convened, and the trial and disposition of the pending litigation proceeded with. On the next day, the 22d of January, the following order was made by the court and spread upon the minutes:

"Tuesday, January 22, 1929, It now appearing unto the Honorable J. D. Fatheree, judge of the circuit court for the 10th judicial district, of Mississippi, the business of the January, 1929, term of circuit court of Wayne county, Mississippi, now being held because of the heavy docket of said court makes it advantageous and proper to continue said term for one week longer than the regular term, that is to say said regular term in the judgment of the said J. A. Fatheree, for the above reasons should be and is hereby ordered extended and continued for one week from the time fixed by law, for the expiration of the regular term, the clerk is hereby ordered to spread this order on the minutes of the court, and the officers are hereby directed to draw jurors for said week, and summons such jurors for service January 28th, at nine o'clock A. M."

On the 22d of January, a day of the regular term fixed by law, the indictment upon which appellant was tried was returned in court by the grand jury; but appellant was not tried until the 29th day of January, which was a day of the extended term.

Appellant's position is that the extended part of the term during which he was tried was unauthorized by law, and therefore his trial and conviction were illegal and void. The first order made by the court on January 7th, the first day of the term, was expressly authorized by section 990, Code of 1906 (section 746, Hemingway's Code of 1927), which provides, among other things, that, if the court shall not sit on any day of the term after it shall have convened, there shall not be any discontinuance, but the court may proceed with the business on any subsequent day until the end of the term. "And any court may take a recess to any day within the time during which it may be held." The adjournment of the court from January 7th to January 14th was a mere recess of the business of the court, and the convening of the court again on the 14th, therefore, was not the beginning of an adjourned term of the court.

The order of January 14th was entered under the authority of section 989, Code of 1906 (Hemingway's Code of 1927, section 745), which follows:

"If the circuit judge or chancellor fail to attend at any term of the court, it shall stand adjourned from day to day until the fifth day, when, if the judge or chancellor shall not appear and open court, it shall stand adjourned without day; but, by virtue of a written order to that effect by the judge or chancellor, it may be adjourned by the clerk or sheriff to the next regular term, or to any earlier day, as the order may direct, and parties, witnesses, and jurors must attend accordingly."

As stated, the judge was not present at the opening of the court on January 14th, but had...