State v. Bell

Chalmers, C. J.,

delivered the opinion of the court.

Isaiah Bell, convicted in the Circuit Court of Chickasaw County of assault and battery with intent to kill and murder, presented, or attempted to present, an appeal to this court, which failed because of his omission to file with the circuit clerk a petition for appeal and the proper bond. His appeal was by us dismissed, and the convict thereupon rearrested. He then sued out a writ of habeas corpus, and asked to be discharged on the ground that the twelve months for which he had been sentenced to imprisonment in the penitentiary had expired, but was refused a discharge because in fact he had never been in the penitentiary at all. See Ex parte Isaiah Bell, 56 Miss. 282.

He then properly prosecuted an appeal from the original conviction, and gave bond for his appearance in this court; but, failing to appear here, judgment nisi on the bond was rendered by us. Scire facias having issued on this judgment nisi, the surety on the appearance-bond comes and moves us to dismiss the scire facias and discharge the surety, upon the allegation that we are without jurisdiction. It is insisted that we are without jurisdiction because the record fails to show that any cost-bond was given by the appellant, or any affidavit made of inability to give such bond. This view cannot be sustained. Our jurisdiction of the appeal depends, not upon the giving of a cost-bond, which by the statute operates as a supersedeas, but upon the filing of a petition for appeal in the lower court and the lodgment of the record here. This being done, we would ordinarily proceed to consider the case as if no supersedeas had been asked, and as if the appellant was undergoing the sentence of the law. But, a bond for the appearance of the party being found in the record, we are bound prima facie to presume that the appellant is at large, and therefore the point attempted to be made cannot be raised by a motion to dismiss and discharge. It may be made by plea, upon which the State can take issue and show, perhaps, that a cost-bond was given or an affidavit of inability made, or that the appellant, in point of fact, was set at liberty upon the execution of the appearance-bond, and that consequently he and his sureties are estopped to deny that there was a supersedeas of the sentence below. Upon the effect of this last showing, if made, we will not in advance express an opinion.

Motion denied, with leave to plead on or before the first day of the next term of this court.