City of Pascagoula v. Cunningham , 141 Miss. 604 ( 1926 )

The appellee, Cunningham, was arrested and tried in the city court on a charge of violating the Speed Law and appealed to the circuit court, where, at the conclusion of the evidence, there was, on motion, a direct verdict to find the defendant not guilty, from which the city has attempted to appeal.

The evidence relied on is that of the marshal and a policeman who saw the license number on the car and followed it in another car and testified that it was going in excess of the speed fixed by ordinance. They could not say who was in the car, but saw some persons whom they were unable to identify. The city ordinance was introduced and also the register of automobiles, which showed that the car number or license number on the car belonged to the defendant, Cunningham.

However desirable it may be for the city to know whether this character of evidence is sufficient in law to secure a conviction if submitted to a jury, we are unable to entertain the appeal because it does not come within purview of the statute, section 40, Code of 1906; Hemingway's Code, section 16. In Water Valley v. Davis, 73 Miss. 521, 19 So. 235, this court held that neither section 40, Code of 1906, nor section 37 thereof, Hemingway's Code, sections 12 and 16, respectively, authorized an appeal by a municipality from a judgment of the circuit court discharging one arrested for violating ordinances of the municipality. In State v. Willingham, 86 Miss. 203, 38 So. 334, it was held that the state could not appeal under this statute from a judgment discharging the defendant on the ground that the proof was insufficient to sustain a conviction. See, also, Gulfport v. Stratakos, 90 Miss. 489, 43 So. 818, 13 Ann. Cas. 855; State v. Brooks, 102 Miss. 661, 59 So. 860; Jackson v. Harland, 112 Miss. 41, 72 So. 850.

It follows from what we have said that the appeal here is unauthorized and will be dismissed.

Appeal dismissed.