Galloway v. State , 144 Miss. 696 ( 1926 )

^* Corpus Juris-Cyc. References: Criminal Law, 16 C.J., p. 373, n. 8; 17 C.J., p. 53, n. 88 New; p. 67, n. 27. Appellant, George Galloway, defendant in the court below, was convicted in the circuit court of Clay county of the unlawful sale of intoxicating liquor, the case having originated in the court of Q.D. Vail, a justice of the peace.

The main ground relied on for reversal here is that there was no transcript of the record of the proceedings and judgment of the justice of the peace in the circuit court at the time of the trial nor during the term of that court. An examination of the record shows that there was filed with the circuit clerk by said justice of the peace an affidavit charging the unlawful sale, the warrant signed by the justice of the peace, and an appeal bond signed before the justice of the peace, reciting that George Galloway was convicted of the unlawful sale of intoxicating liquor by Vail, the justice of the peace, on June 23, 1924. Then there appears this kind of certificate:

"State of Mississippi v. George Galloway.

"I hereby certify that the foregoing pages represent all proceedings had before me in the above cause, and that the defendant was found guilty of the unlawful sale of intoxicating liquors and fined three hundred fifty dollars and sentenced to ninety days in jail.

"Q.D. VAIL, J.P.

"This June 23, 1925. "Filed June 23, 1925.

"A.H. FOX, Circuit Clerk."

It will be observed that no part of the transcript of the docket of the justice of the peace was filed, and it is suggested by the attorney-general that perhaps the conviction by the circuit court may be sustained, because the justice of the peace certified that the defendant was "found guilty and fined and sentenced to jail."

In addition to the above, we find in the record a certificate filed in this court on October 4, 1926, to an unsigned judgment of conviction from Vail's docket, which does not appear ever to have been in the circuit court, and, according to the clerk's certificate, no judgment was ever signed by the justice of the peace. However, we are of the opinion that this certificate of the circuit clerk has no place in the record here, and we mention it only as illustrating the necessity for a little caution on the part of the officials of the circuit court in the matter of dealing with appeals from a justice of the peace court.

If these records were examined by the prosecuting officers and the presiding judge of the court, and the proper proceedings had immediately, the defendant would, we think, promptly see to it that the record was there duly certified, in order that the circuit court might hear this appeal. We realize that the circuit court is a very busy tribunal, but in the light of the many opinions rendered by this court on this identical question, this time taken would relieve the docket here of many appeals which depend upon this one ground for reversal. In the case of Salers v. State (Miss.),107 So. 375, Judge ETHRIDGE said on this point:

"(1) We have decided in a number of cases, beginning withHughston v. Cornish, 59 Miss. 372, that the transcript of the record required to be filed by section 89, Code of 1906 (section 71, Hemingway's Code), was a copy of the justice of the peace docket entries and judgment. It was held in Ball v. Sledge,82 Miss. 747, 35 So. 214, that the circuit court had no jurisdiction of appeal taken from the justice of the peace court, unless the record shows that the judgment was rendered by the justice of the peace and an appeal bond executed. This was again held in the case of Young v. State, 140 Miss. 165,105 So. 461."

We think that this court has so repeatedly held that this point may be raised in this court for the first time, and that the transcript of the proceedings, together with the judgment, is fundamental in order that the circuit court may have jurisdiction, and, without a judgment of the justice of the peace court having been rendered, there would, of course, be no cause pending on an effort to appeal to the circuit court. There being no transcript at all of the record of the proceedings from the justice of the peace docket and there being nothing save a certificate that the defendant was convicted, the circuit court was without jurisdiction, and this court was without jurisdiction, and the question of jurisdiction may be raised here or at any time. Salers v. State (Miss.), 107 So. 375;Rodgers v. City of Hattiesburg, 99 Miss. 639, 55 So. 481;Ruff v. Montgomery, 83 Miss. 184, 35 So. 465; Ball v.Sledge, 82 Miss. 747, 35 So. 214; Gardner v. Railroad Co.,78 Miss. 640, 29 So. 469; McPhail v. Blaun, 95 Miss. 53, 48 So. 725; McPhail v. Blann, (Miss.), 47 So. 666; City of Greenwood v. Weaver, 96 Miss. 604, 50 So. 981; Allen v.State, 98 Miss. 192, 53 So. 498; Xydias v. Pellman,121 Miss. 400, 83 So. 620; Cawthon v. State, 100 Miss. 834, 57 So. 224; Brasham v. State, 140 Miss. 712, 106 So. 280;Hughston v. Cornish, 59 Miss. 372.

Reversed and remanded.