Loftin v. State

Thaohee, J.:

This is an indictment preferred by the circuit court of Lauder-dale county, Hon. A. B. Dawson, presiding judge, against Asa Loftin, as a delinquent overseer of a public road, under the statute in such case made and provided. H. & H., 458, § 62.

The defendant below pleaded not guilty, but the jury returned a verdict of “ guilty,” whereupon the said defendant prayed an appeal to the high court of errors and appeals, and tendered an appeal bond, conditioned for his appearance at the circuit court of Lauderdale county, on the first Monday in September, a.d. 1848, to abide the decision of the said high court of errors and appeals, and from thence not to depart until discharged by due course of law. The said circuit j udge allowed this appeal, and accepted the bond tendered thereon.

The above proceeding is entirely erroneous, and has been so held by an early decision of this court. No appeal lies from the circuit to the high court of errors and appeals in criminal cases, and the same can only be reversed in this tribunal by virtue of writs of error. The State v. Tuomey, 5 How., 50. The bond also taken by the circuit court is a nullity, not being warranted by law. Besides, the proceeding is erroneous in another respect. The circuit court neglected to pronounce judgment upon the verdict of the jury, and there being no judgment in the case, there is, consequently, nothing to appeal from, even if an appeal would lie. The writ of error in the record cannot be entertained in the present condition of the case, because no case of this kind can be allowed a writ of error until a final judgment in the circuit court, and only upon the fiat of a competent officer. H. & H., 538, § 40; 1 S. & M., 163; 2 ib., 27; 3 ib., 588.

This cause, therefore, must be dismissed from this court, and remanded to the circuit court of Lauderdale county, with instructions to the judge of that court to pronounce the sentence and judgment of the law upon the verdict of the jury; when the defendant can make his application for a writ of error to the proper quarter, if he so elect. 5 H., 291.