Opinion
No. 35859.
June 11, 1945.
CRIMINAL LAW.
Where conviction of a misdemeanor in a justice of the peace court was appealed to the county court and then to the circuit court, and no constitutional question was involved, appeal to the Supreme Court would not lie (Code 1942, sec. 1617).
APPEAL from the circuit court of Forrest county, HON. F.B. COLLINS, Judge.
Earle L. Wingo, of Hattiesburg, for appellant.
The appellant, Welton Kitchens, a minor sixteen years of age, was tried before and found guilty in justice of the peace district No. 2 of Forrest County, Mississippi, on a charge of aiding in prostitution, which consisted of his operating his automobile in the transportation of soldiers to a place where certain females were alleged to be. He was fined $100.00 and sentenced to serve sixty days in jail. From this conviction he appealed to the county court of Forrest County, Mississippi. Upon appeal of the case in the county court, the same was set for trial for Monday, February 25, 1944, at nine o'clock A.M., when the county court would convene for the February, 1944 term. At exactly nine o'clock the county judge, in the absence of counsel for the appellant, inquired of the appellant how he desired to plead and the minor having had no previous experience in court whatever said he was guilty, whereupon the county judge imposed the same sentence that was imposed by the justice of the peace. At exactly one minute after nine o'clock counsel for the appellant appeared in the county court just as the sheriff was taking the minor to jail and counsel requested leave of the county court to set the plea of guilty aside and let the minor have his day in court, but the county judge declined to grant the request, whereupon counsel for the appellant promptly prepared the motion to set the plea of guilty aside, which was filed as shown by the motion at 9:15 A.M. on February 25, 1944. Immediately after presenting the motion to the court the county judge overruled the same. Hence this appeal.
We respectfully submit that the county judge abused his discretion in declining to overrule the appellant's motion to set aside the plea of guilty and to give him his day in court. Especially is this true when it is shown by the motion without contest that counsel for the appellant was in the courtroom at one minute after nine o'clock on Monday, February 25, 1944.
Vaughn v. Hudson, 59 Miss. 421; Westbrook v. Munger, 64 Miss. 575, 1 So. 750.
We submit that as a matter of simple justice this conviction should not be permitted to stand. If this were a case where an adult had plead guilty in the absence of his attorney, we would have an entirely different situation.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The appellant, Welton Kitchens, was tried and convicted on an affidavit charging him with an offense in the justice of the peace court of Forrest County, Mississippi, and sentenced to pay a fine of $100 and serve sixty days in jail, from which judgment he appealed to the county court of Forrest County, where the appellant plead guilty and was sentenced to pay a fine of $100 and serve sixty days on the county road. In a few minutes thereafter a motion to set aside the plea of guilty and for trial upon the merits was filed by the attorney for the appellant, which motion was overruled by the court, from which judgment he appealed to the circuit court of Forrest County, Mississippi, where the judgment was affirmed, from which judgment he appeals to this court, the circuit judge certifying that, in his opinion, a constitutional question was involved.
The only question presented is that the court erred in overruling the motion to set aside the plea of guilty and to allow trial on the merits. At the outset, counsel for appellant, in his motion, states that the appellant was arraigned and plead guilty in the absence of his attorney. However, the order of the court recites, "Comes the County Prosecuting Attorney who prosecutes for the State and the Defendant in his own proper person and by his counsel . . ." This order was signed by William Haralson, County Judge. The correctness of this order or judgment is certified to be true by L.M. Cox, clerk of the circuit court of Forrest County, Mississippi. Therefore, in the absence of any proof, judgment will control.
The Supreme Court must presume that judgments of trial courts are correct, until, in some way known to law, their integrity is successfully impeached.
Dunaway v. State, 157 Miss. 615, 128 So. 770; Thomas v. State, 167 Miss. 504, 142 So. 507.
The motion of counsel to set aside the plea of guilty was insufficient. On arraignment, where a defendant in criminal cases pleads guilty, it is within the discretion of the court to set aside, or to refuse to set aside, the plea; but it should only be set aside upon a showing that the defendant is not guilty of the claim charged, and a showing of the nature and facts of the defense in case it should be set aside. A motion which does not comply with this requirement is insufficient to require the setting aside of such plea.
Fortenberry v. State, 147 Miss. 91, 113 So. 193.
Where a plea of guilty is entered, and afterwards a motion is made to set aside the plea of guilty and to enter a plea of not guilty and for a trial on the merits, the application is addressed to the sound discretion of the trial judge, and his ruling thereon will not be disturbed on appeal, unless manifestly wrong. A showing made on such motion should establish the probability that a trial would result in acquittal, if submitted to a jury, or the proof must engender such doubt of guilt that a trial might reasonably lead to acquittal.
Haywood v. State, 151 Miss. 536, 118 So. 620; McDonald v. State, 151 Miss. 566, 118 So. 628; Anderson v. State, 189 Miss. 222, 196 So. 651.
Counsel for appellant contends that as his motion was not contested all facts are admitted. The rule is to the contrary. A motion is at issue without further pleading and the movant must, to sustain his motion, introduce proof on such issue.
Reed v. State, 143 Miss. 686, 109 So. 715; Young v. State, 150 Miss. 787, 117 So. 119.
Appellant was charged with and convicted of a misdemeanor in a justice of the peace court, from which conviction he appealed to the county court, thence to the circuit court and thence to this Court. Section 1617, Code 1942, provides that in such case the appeal will not lie to this Court "unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the Supreme Court." No constitutional question is involved in this case; therefore, the appeal should be, and it is hereby, dismissed.
Appeal dismissed.