Opinion
No. 28241.
November 4, 1929.
CRIMINAL LAW. Appellate court must presume adjudication absent defendant was in default was based on facts then existing supporting judgment ( Hemingway's Code 1927, section 1316).
Where case on appeal from justice of the peace court was tried in absence of defendant under Code 1906, section 1495 (Hemingway's Code 1927, section 1316), statement in judgment that defendant came not but wholly made default in his appearance was an express adjudication by court that he was in default, and in absence of competent evidence to the contrary, appellate court must presume that adjudication was based on facts then existing which supported the judgment.
APPEAL from circuit court of Marion County. HON. J.Q. LANGSTON, Judge.
Goss Goss, of Columbia, for appellant.
Appellant's contention is that before he could answer to the said charge, his case necessarily had to be called, or rather the defendant called to answer said charge, and as the judgment fails to recite that the defendant was called, then the judgment is void.
Ingram v. State, 136 Miss. 291; Wilson v. Town of Handsboro, 96 Miss. 376; Peacock v. State, 95 So. 647.
W.A. Shipman, Assistant Attorney-General, for the state.
The judgment recites that appellant "came not, but wholly made default in his appearance," and the judgment imports absolute truth and verity; it may not be contradicted or impeached. The presumption of law is that the court and its officers all perform their duties regularly and lawfully. The case at bar falls within the rule stated by this court in Durden v. State, 59 So. 844, and followed in Williams v. State, 103 Miss. 147, 60 So. 73, that, where a bond on appeal from a justice's judgment required the accused to appear at the next term of the circuit court, from day to day and term to term until discharged, and the case was on the docket for trial, the appeal was properly dismissed, if the accused failed to appear when the case was called; or the court may in cases less than felony, Code 1906, sec. 1495 (Hem. 1927 Code, Sec. 1316), so providing, try the accused in his absence, when he is under bond.
The appellant was convicted for having liquor in his possession in the court of a justice of the peace. The appeal to the court below was tried in the absence of the appellant, under section 1495, Code of 1906, Hemingway's Code 1927, section 1316; the appellant was again convicted and has brought the case to this court.
The judgment recites: "Comes the district attorney who prosecutes the pleas of the state and announces ready for trial, and the defendant, Shirley James being under bond for his appearance at this term of court to answer the state of Mississippi on an affidavit charging him with having in his possession intoxicating liquor, came not but wholly made default in his appearance as he was bound to do, and the court entered a plea of not guilty for him and the court proceeded with the trial in the absence of the defendant," etc. The appellant's contention is that he was not in default unless he was called before the court proceeded with his trial and failed to appear, and that this fact does not appear from the judgment, citing in support thereof Wilson v. Town of Handsboro, 96 Miss. 376, 50 So. 982; Peacock v. State (Miss.), 95 So. 647; Ingram v. State, 136 Miss. 291, 101 So. 380. It is true that a defendant in a criminal case who has been at large on bond must be called for his trial before he can be in default in not appearing therefor, but this judgment reflects that the appellant was so called. It is true that it contains no special statement to that effect, but it does set forth that "he came not but wholly made default in his appearance." This is an express adjudication by the court that he was in default, and in the absence of competent evidence to the contrary we must presume that the adjudication was based on facts then occurring which support the judgment. The records in the cases cited by the appellants disclose that the judgments there merely dismissed the appeal without reciting the appellants' default in not appearing.
Affirmed.