State v. Key

• Citation: 46 So. 75,93 Miss. 115
• Decision Date: 20 April 1908
• Docket Number: 13,286
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI v. FRANK KEY ET AL

46 So. 75

93 Miss. 115

STATE OF MISSISSIPPI v. FRANK KEY ET AL

No. 13,286

Supreme Court of Mississippi

April 20, 1908

FROM the circuit court of Lauderdale county, HON. ROBERT F COCHRAN, Judge.

Key and another, appellees, were indicted for murder and upon the continuance of their case the circuit court granted them bail; the district attorney manifested no displeasure at the grant, but the attorney general prosecuted an appeal in behalf of the state, from an order of the circuit court admitting appellees to bail. Appellees were under indictment for murder, and had, previously to the finding of the indictment, sued out a writ of habeas corpus before the chancellor, and been denied bail. After the indictment had been returned, both the state and the defendants were ready for trial; but the circuit judge, because the term of the court was so far advanced and the press of other important business so great, would not enter upon the trial of the case at that term of the court. The district attorney having agreed that bail should be granted each of the defendants in the sum of $ 10,000, the court entered an order accordingly.

The right of the attorney general to take an appeal for and in behalf of the state was questioned upon the ground that no one could represent the state in so doing but the district attorney, and upon the further ground that an appeal would not lie in any event in this case, the same not being within Code 1906, § 40, which is as follows:

"40 (39). State or Municipality may Appeal in Certain Criminal Cases.--The state or any municipal corporation may prosecute an appeal from a judgment of the circuit court in a criminal cause in the following cases: (1) From a judgment sustaining a demurrer to, or a motion to quash, an indictment, or an affidavit charging crime; but such appeals shall not bar or preclude another prosecution of the defendant for the same offense. (2) From a judgment actually acquitting the defendant where a question of law has been decided adversely to the state or municipality; but in such case the appeal shall not subject the defendant to further prosecution, nor shall the judgment of acquittal be reversed, but the supreme court shall nevertheless decide the question of law presented. (3) From a ruling adverse to the state or municipality in every case in which the defendant is convicted and prosecutes an appeal; and in such case the whole record shall be carried before the supreme court on the direct appeal, and the case shall be treated as if a cross-appeal had been formally prosecuted by the state. All questions of law thus presented shall be decided by the supreme court."

Appellees moved for the dismissal of the appeal.

Witherspoon & Witherspoon, for the motion.

The district attorney having agreed to the order refused, of course, to take a bill of exceptions and refused to apply for an appeal and the attorney general has no power or authority to represent the state or to practice in the circuit courts except to assist the district attorney. Code 1906, § 184 provides that the attorney general shall prosecute and defend all causes in the supreme court to which the state is a party, and Code 1906, § 190 provides that when the public service requires or the governor directs the attorney general shall "assist the district attorney in the discharge of his duties and many other duties are imposed upon the attorney general by other sections of the code, but no statute authorizes the attorney general to supplant and to take the place of the district attorney and to substitute himself for the district attorney in representing the state in a murder case in the circuit court.

The record clearly shows that the order appealed from was entered by consent of the state and the defendants and section 33 of the Code clearly, provides that no appeal shall lie from a judgment by consent.

The appeal should be dismissed because the order appealed from is interlocutory and not final. Code 1906, § 33; State v. McDowell, 72 Miss. 138, 17 South., 213.

The right of appeal is purely statutory and never exists unless the statute authorizes it. Section 40 of the Code is the one fixing the right of appeal by the state and it clearly enumerates the cases in which the state can appeal. Orders...