Summary
In State v. Ashley, 194 Miss. 110, 11 So. 2d 832 (1943), the Mississippi Supreme Court addressed the right of the state to appeal in criminal cases under the then-governing statute, section 19 of Hemmingway's Code of 1930.
Summary of this case from State v. HudsonOpinion
No. 35078.
February 8, 1943.
CRIMINAL LAW.
An appeal does not lie on behalf of state or municipality from judgment of acquittal based upon verdict directed in favor of accused because of insufficiency of evidence to sustain charge made in affidavit or information, though question involved on trial court's ruling may be a mixed question of law and fact (Code 1930, sec. 19).
APPEAL from the circuit court of Pike county, HON. J.F. GUYNES, Judge.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellant.
This appeal by the petitioners, the district attorney and the county attorney, is based upon section 19 of the Code of 1930. This section of the Code does not warrant an appeal by the state where no question of law is presented, but only the question of the decision of the lower court as to the sufficiency of the proof to sustain a conviction.
City of Pascagoula v. Delmas et al., 157 Miss. 619, 128 So. 743; State v. Bourdon, 126 Miss. 877, 89 So. 769; State v. Adams, 123 Miss. 514, 86 So. 337; State v. Willingham, 86 Miss. 203, 38 So. 334; State v. Brooks, 102 Miss. 661, 59 So. 860; City of Jackson v. Harland, 112 Miss. 41, 72 So. 850; City of Pascagoula v. Cunningham, 141 Miss. 604, 106 So. 886.
J.A. White, of McComb, for appellee.
The learned Attorney-General has most ably briefed the appellee's case, as well as the appellant's case, and I feel that I cannot add anything that would be of any benefit to the court in the determination of this cause, except to formally state that the appellee joins in the prayer of the appellant's brief that this case be finally dismissed.
An appeal does not lie on behalf of the state or a municipality under section 19, Code of 1930, from a judgment of acquittal based upon a directed verdict in favor of a defendant in a criminal case where the peremptory instruction in such case is granted because of the insufficiency of the evidence to sustain the charge made in the affidavit or indictment, even though the question involved on the ruling of the trial court may be a mixed one of law and fact. City of Pascagoula v. Delmas et al., 157 Miss. 619, 128 So. 743; State v. Bourdon, 126 Miss. 877, 89 So. 769; State v. Adams, 123 Miss. 514, 86 So. 337; State v. Willingham, 86 Miss. 203, 38 So. 334; State v. Brooks, 102 Miss. 661, 59 So. 860; City of Jackson v. Harland, 112 Miss. 41, 72 So. 850; City of Pascagoula v. Cunningham, 141 Miss. 604, 106 So. 886.
It is therefore conceded by the Attorney-General that the motion of appellee to dismiss this appeal should be sustained. It is so ordered.
Appeal dismissed.