Walton v. City of Tupelo, 40195
| Decision Date | 05 November 1956 |
| Docket Number | No. 40195,40195 |
| Citation | 229 Miss. 193,90 So.2d 193 |
| Parties | Dale WALTON v. CITY OF TUPELO. |
| Court | Mississippi Supreme Court |
Wm. S. Lawson, Tupelo, for appellant.
C. R. Bolton, S. E. Lumpkin, Tupelo, for appellee.
The appellant Dale Walton was tried and convicted in the police court of the City of Tupelo during the early part of the year 1955 on the charge of having kept open a grocery store on the Sabbath day, to-wit on January 2, 1955. He appealed to the circuit court from his conviction and sentence. In May 1955 the prosecution was nol-prossed in the circuit court upon payment of the court costs. Thereafter, on November 19, 1955, he was again arrested on the same charge, entered a plea of nolo contendere in the police justice's court, and then appealed again to the circuit court, wherein he was convicted in a trial on the merits.
On the appeal here he assigns as his principal ground for reversal the failure of the circuit court to sustain his plea of former jeopardy.
Section 22 of the Constitution of 1890 provides: 'No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.'
In the case of State v. Kennedy, 96 Miss. 624, 50 So. 978, it was held that a nolle prosequi is not a bar to another indictment for the same offense, and it was held in the cases of Conwill v. State, 124 Miss. 716, 86 So. 876; Lovern v. State, 140 Miss. 635, 105 So. 759; and Harris v. State, 158 Miss. 439, 130 So. 697, that an actual conviction or acquittal on the merits must be shown to support a plea of former jeopardy.
The usual practice is that when a case is merely passed to the files at the instance of the prosecution, it may be later revived on motion and tried on its merits in the same court, but where a nolle prosequi is entered the particular case is at an end on the docket, but this does not bar another prosecution for the same offense if commenced in the court where the case originated, as was done in the instant case.
It is next assigned as error that the circuit court was without jurisdiction to try the second case, that is to say the one commenced in the police court on November 19, 1955, for the reason that the transcript of the record on appeal from the police court to the circuit court contains in the body thereof a recital that, 'We, Jas. A. Finley, Police Justice of the City of Tupelo, and J. L. Ballard, Clerk of the City of Tupelo, Mississippi, do hereby certify * * *'. Whereas the said transcript is actually certified to by C. B. Hutchinson, Police Justice of the City of Tupelo, Mississippi and ...
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Beckwith v. State, 91-IA-1207
...acquittal barring further prosecution, following which the case may be reopened upon motion of the State. Walton v. City of Tupelo, 229 Miss. 193 at 196, 90 So.2d 193 at 194 (1956); Gordon v. State, 127 Miss. 396, 90 So. 95 Pursuant to Sec. 22 of our Constitution, this Court has held that f......
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Caston v. State
...for the same offense if commenced in the court where the case originated, as was done in the instant case.'" Walton v. City of Tupelo, 229 Miss. 193, 196, 90 So.2d 193, 195 (1956). State v. Shumpert, 723 So.2d at 1164. Consequently, the brother's re-indictment in 1998 was not barred by the ......
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De La Beckwith v. State
...for the same offense if commenced in the court where the case originated, as was done in the instant case. Walton v. City of Tupelo, 229 Miss. 193, 90 So.2d 193, 194 (1956). See also Smith v. State, 158 Miss. 355, 128 So. 891 (1930) (second prosecution not barred by nolle prosequi of previo......
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Fogleman v. Hubbard
...has repeatedly differentiated between passing an indictment to the files and an order of nolle prosequi. Hall, 187 So.3d at 137; Walton, 90 So.2d at 196. An order of prosequi results in dismissal of an indictment without prejudice. Caston v. State, 823 So.2d 473, 503-4 (Miss. 2002); Payton,......