Williams v. State , 125 Miss. 347 ( 1921 )

Sykes, J.,

delivered the opinion of the court.

The appellant was indicted, tried, convicted and sentenced to serve a term of five years in the penitentiary under section 1 (c) of chapter 214, Laws 1912 (section 2086, Hemingway’s Code). Section 1(c), relating to a' punishment for the unlawful sale of liquor under this act, provides that this punishment shall be “by imprisonment in the state' penitentiary not less than one year nor more than five years, if the conviction is for an offense under this. act committed after the person convicted has been convicted and punished for two former offenses hereunder.1” The testimony relating to the two former convictions and punishments of the appellant under this act was as follows:

W. T. Kennedy, a justice of the peace, testified that two affidavits for selling whisky on different dates were made against this defendant before him and that the defendant pleaded guilty and was sentenced to pay a fine of fifty dollars in each case and the defendant appealed the two cases to the circuit court. The two judgments in the justice of the peace courts were also introduced in testimony, together with the record of this court, which showed that the cases were duly appealed to the circuit court. The records of the circuit court showed that these tivo- cases were docketed in that court and the minutes of the circuit court show no disposition of either one of them. In the circuit court it appears from this testimony that there was also a docket there kept called the court’s docket. On this docket a notation was made in one of these cases, apparently in the handwriting* of the judge) to the effect that it was dismissed with a writ of procedendo to the mayor’s court. In the other case it seems there was some notation to the effect that the case “was pnt on file.”

Dehors the court records it is shown that by some agreement the defendant was alloived to pay a fine of one hundred dollars in settlement of these two cases. All of this testimony was introduced to show the two former convic-itons and punishments of the defendant under this act. The records of the justice of the peace court showed that these two cases were properly appealed from his court to the circuit court. The minutes of the circuit court should show the disposition of the cases by that court. This court speaks through its minutes. These two cases were properly appealed and docketed in the circuit court and the minutes of that court fail to show any disposition of them. Section 1007, Code of 1906 (section 727, Hemingway’s Code), provides for the keeping and signing of the minutes of courts wherein the proceedings of the court are recorded. These court minutes import absolute verity and cannot be contradicted by parol. Jones v. Williams, 62 Miss. 183; Hammond-Gregg v. Bradley, 119 Miss. 72, 80 So. 489; Childress v. Carley, 92 Miss. 571, 46 So. 164, 131 Am. St. Rep. 546.

In the absence of any order or judgment of the circuit court appearing upon its minutes, it follows that these two cases are still pending in the circuit court and that the defendant has not been convicted and punished for two former offenses under this statute. His conviction under this indictment is therefore for a first offense and he should have been sentenced therefor under section 1 (a) of his law. Boroum v. State, 105 Miss. 887, 63 So. 297, 457; Gason v. State, 107 Miss. 484, 65 So. 563.

The judgment of the lower court is affirmed, and the' cause remanded for sentence as for a first offense under paragraph (a) of this law.

Affirmed and remanded for sentence.